IN THE LABOUR APPEAL COURT OF SOUTH AFRICA Held in Durban
Case no: PA2/09

Safety and Security Sectoral

JUDGMENT

ZONDOJP

[1] This matter comes before this Court as a special case as provided for in Rule 5(16) of the Rules of this Court by agreement between the appellant and the third respondent. The background to the facts of the matter appear from a statement of facts agreed to between the parties. I take the agreed facts from that statement. They are as follows:

"2.1   The parties accordingly agree that the appeal can be decided on the following common cause facts:
	2.1.1 The Third Respondent made an application for a transfer from Information and Management System Management (ISM), Provincial Commissioner's Office, Zawelitsha to Community Service Centre, Mount Road Police Station, Port Elizabeth.
	2.1.2 The Appellant, in the person of Commissioner Dlani disapproved the Third Respondent's application for transfer on the basis of the service delivery needs of the Appellant.
	2.1.3 The Third Respondent (being aggrieved at Commissioner Dlani's decision) lodged a dispute about the interpretation and application of a collective agreement, challenging the decision taken by the Appellant to disapprove the application for a transfer.
	
	2.1.5 In short the Third Respondent argued at the arbitration proceedings that Commissioner Dlani had failed to apply her mind to the factors which were listed in clause 10 of Resolution 5 of 1999 when coming to her decision to refuse the transfer.
	2.1.6 The dispute between the aforementioned parties was ultimately arbitrated by the Second Respondent under the auspices of the First Respondent.
	2.1.7 The Second Respondent in his arbitration award found that the decision of the Applicant not to approve the Third Respondent's application for a transfer was capricious illogical and irrational and hence invalid.
	2.1.8 Although the arbitrator dealt with the categorisation of the dispute (as being a dispute about the interpretation and application of a collective agreement) the categorisation of the dispute was not placed in dispute by either of the parties at the proceedings.

[2] The parties set out the legal issue before this court in par 3 of the document containing the special case. Par 3 of that document reads as follows:

3.1 The parties agree that the sole issue before this Honourable Court is whether, as a matter of law, the Second Respondent was possessed of the requisite jurisdiction to determine the dispute which was referred to arbitration.
3.2In this particular regard this Honourable Court will be required to decide whether the Second Respondent correctly classified the dispute before him as one concerning the interpretation and application of a collective agreement.
3.3The Third Respondent contends that the Second Respondent was correct in his categorisation of the dispute as one concerning the interpretation and application of a collective agreement.

Second Respondent was in fact a dispute about the fairness of the decision taken by the Appellant to refuse the Third Respondent's application for » transfer (and that there was neither a dispute about the interpretation of the relevant collective agreement or whether it applied in the present circumstances)."

[4] The contents of the collective agreement apply both to the cases where a transfer is initiated by the employer as well as where the transfer is at the request of the employee. The collective agreement provides for the procedure to be followed in the processing of transfers and the factors that must be taken into account in deciding whether an employee is to be transferred or not. It also deals with the officials who have the authority to make decisions on transfers in various circumstances.

[6] In support of his contention that the dispute was about the interpretation or application of the collective agreement, Counsel for the first respondent drew our attention to various provisions of the collective agreement to emphasise the various factors which he submitted were either not taken into account by the official who made the decision to refuse the third respondent's request for a transfer or to show that the relevant official did not or could not have attached any weight to such factors or some of the factors. He submitted that that showed that the dispute was about the application or interpretation of the collective agreement.

[8] Counsel for the appellant in the present matter was asked whether he would submit that the dispute that was before the arbitrator in the Johannesburg City Parks matter was a dispute about the fairness of the dismissal of the employee or whether he would associate himself with the submission that it was a dispute about the application of a collective agreement as had been submitted by Counsel for the appellant in that case. Counsel for the appellant in the present case said that he could not associate himself with the submission that in that case the dispute before the arbitrator was a dispute about the application of a collective agreement. He submitted that the dispute in that case was a dispute about the fairness of a dismissal.

[9] In the light of his answer, Counsel for the appellant in the present matter was asked why it could not be said that in the present matter the dispute that was before the second respondent was not a dispute about the application of a collective agreement but a dispute about the fairness of Commissioner Dlani's decision to decline the third respondent's request or application for a transfer. Although Counsel did not make any concession in this regard, he had considerable difficulty in making submissions on why the reasoning that persuaded him that the dispute before the arbitrator in the Johannesburg City Parks matter was a dispute about the fairness of a dismissal and not a dispute about the application of a collective agreement should not apply with equal force to the present case with the result that we should conclude that the dispute before the second respondent was about the fairness or otherwise of the transfer and not about the application of a collective agreement.

[10] We sec no distinction of any materiality in the two cases. Accordingly, we shall refer to the reasoning in the judgment of this
Court in the Johannesburg City Parks' case to decide the present appeal. I am of the view that a recognition of the distinction between a dispute, on the one hand, and, an issue in a dispute, on the other, is determinative of this matter.

[19] In the above example it cannot be said, for example, that the Labour Court has no jurisdiction to adjudicate the dispute concerning the dismissal for operational requirements and it must be referred to arbitration just because, prior to or in the course of, resolving the dismissal dispute, the issue concerning the interpretation or application of certain clauses of the collective agreement must be decided, It would be different, however, where the main dispute, as opposed to an issue in a dispute, is the interpretation or application of a collective agreement. In the latter case the Labour Court would ordinarily not have jurisdiction in respect of the dispute and the dispute would be required to be resolved through arbitration in terms of the LRA.

[12] In the light of the above I conclude that the first and second respondents had no jurisdiction to arbitrate the dispute in this case because that was a dispute concerning the fairness or otherwise of commissioner Dlani's decision not approve the third respondent's request or application for a transfer and the first and second respondents had no jurisdiction to deal with such a dispute. Accordingly, the Court a quo erred in not granting the appellant's application for review.

[13] With regard to costs, Counsel for the appellant did not press for costs. In my view Counsel for the appellant adopted the correct approach in this regard.

[14]  In the premises I make the following order:
	1. The appeal is upheld.
	2. There is to be no order of costs on appeal.
	3. The order of the Labour Court is hereby set aside and, for it, the following order is substituted:

(b) It is hereby declared that the first and second respondents had no jurisdiction to arbitrate the dispute concerning commissioner Dlani's decision not to approve the third respondent's request or application for a transfer.
	(c) There is to be no order as to costs.
(d) The arbitration award issued by the second respondent is hereby reviewed and set aside and, for it, the following ruling is substituted:
"(i) The Safety and Security Sectoral Bargaining Council has no jurisdiction to deal with this dispute and the referral thereof to this Council is dismissed.
(ii)   There is no order as to costs."

Zondo JP

I agree.

Tlaletsi AJA Appearances: