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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case No: JR2517/2012

In the matter between:

RUSTENBURG PLATINUM MINES LIMITED

t/a PRECIOUS METALS REFINERS                                                                          Applicant

and

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION                                                                 First Respondent

MAVUMO, D (N.O)                                                                                    Second Respondent

VAN BREKEL E                                                                                            Third Respondent

UASA – THE UNION                                                                                  Fourth Respondent

Heard:           18 November 2015

Delivered:     25 August 2016

JUDGMENT

BALOYI AJ

Introduction

[1] This is a review application brought in terms of section 145 of the Labour Relations Act 66 of 1995 (LRA). The applicant seeks the review, correction and/or setting aside of the jurisdictional ruling of the second respondent issued under Commission for Conciliation, Mediation and Arbitration (CCMA) case number NWRB3774-11 dated 3 September 2012. The second respondent ruled that the CCMA has the jurisdiction to arbitrate a dispute of unfair dismissal referred to it by the third respondent. The third and fourth respondents oppose this application. As is commonly the case in applications of this nature, the first and second respondents did not participate in the application.

[2] In the aftermath of the jurisdictional ruling, the parties have agreed that the arbitration be postponed pending the determination of an application for the review, correction and/or setting aside of the ruling of the second respondent, hence the present application.

Brief summary of relevant facts

[3] The following is a summary of the relevant facts.

3.1.        The third respondent was employed by the applicant as Protection Services Manager.

3.2.        On 12 August 2011, the applicant instituted disciplinary proceedings against the third respondent. On 26 September 2011, the third respondent tendered her resignation with effect from 30 September 2011. The applicant and the third respondent agreed that the third respondent would serve a month’s notice effective 26 September 2011 with the last day of work being 26 October 2011.

3.3.        Notwithstanding the third respondent’s resignation, the applicant continued with the disciplinary hearing against her during the notice period and in her absence on account of ill-health. On 26 October 2011, the applicant found the third respondent guilty of the misconduct of dishonesty and gross negligence and imposed a sanction of dismissal effective immediately, i.e 26 October 2011. In the result, the third respondent was found guilty and dismissed on the day that would have been her last day of employment in accordance with her notice of resignation and the agreement that she serves a notice period until 26 October 2011.

3.4.        In the aftermath of her dismissal, the third respondent referred a dispute of unfair dismissal to the CCMA in which she sought reinstatement retrospectively to the date of dismissal without any loss in salary or benefits, alternatively, compensation in terms of section 194 of the LRA.

3.5.        At the arbitration, the applicant contended that the CCMA lacked the jurisdiction to arbitrate the dispute on the basis that the third respondent had resigned and the applicant accepted the resignation. After the matter was postponed for a decision of the second respondent, and whilst the ruling was pending, the applicant purported to withdraw the dismissal of the third respondent and notified her and the CCMA accordingly. The third and fourth respondents contended that the withdrawal of the applicant’s dismissal is of no consequence.

3.6.        At the CCMA and in this review application, the applicant contends that the resignation of the third respondent and its acceptance by the applicant had the consequence that the disciplinary action against the third respondent was a nullity due to the reason that as at the time of dismissal, the applicant had resigned from employment. The resignation and its acceptance by the applicant, so the applicant contends, is the reasons for the termination of the third respondent’s employment and the CCMA has no jurisdiction to determine the dispute referred by the third respondent.

The ground for review

[4] The applicant seeks the setting aside of the jurisdictional ruling on the ground that the decision of the arbitrator is incorrect. The only ground for review relied upon by the applicant is formulated thus:

‘It is the applicant’s contention that the first respondent came to an incorrect decision when regard is had to the letter of 13 August 2012, and that in the circumstances it does not have the jurisdiction to arbitrate a complaint of unfair dismissal. The jurisdictional ruling is flawed because the underlying cause for the third respondent’s dispute was removed by the applicant.’

[5] Section 145(1) of the LRA permits the review of an award (and ruling) which contains a defect. According to section 145(2), a “defect” means that the commissioner -(i) committed misconduct in relation to the duties of the commissioner as an arbitrator; (ii) committed a gross irregularity in the conduct of the arbitration proceedings; (iii) committed a gross irregularity in the conduct of the arbitration proceedings; or (iv) exceeded the commissioner’s powers; or that an award has been improperly obtained. The correctness of the ruling of the second respondent is not a defect within the meaning of section 145(2).

[6] The incorrectness of a decision is not a competent ground for review and an arbitration award, and indeed a ruling of a commissioner, cannot be set aside by a reviewing court on the basis that it is incorrect or wrong. The applicant has clearly not had regard to the fundamental difference between an appeal and a review. The former is concerned with the correctness of the impugned decision as is the case with the applicant’s complaint, whilst the latter is concerned with whether the impugned decision is one which falls within the meaning of section 145. In Lekota v First National Bank of SA Ltd,[1] Basson J correctly pointed out that it is not the function of the reviewing court acting in terms of section 145 to determine whether the commissioner acted correctly or whether his decision is wrong. This remains the correct position of the law and the applicant must accordingly fail in its application on this ground.

[7] The applicant does not contend that the decision of the second respondent is unreasonable and I am therefore not required to consider whether the decision is reviewable on this basis.

[8] In the premises, I find that the application to review, correct and/or set aside the ruling of the second respondent must fail.

Conclusion

[9] In the result, I make the following order:

9.1.        The application for the review, correction and/or and setting aside of the ruling of the second respondent issued under CCMA case number NWRB 3774-11 dated 31 August 2012 is dismissed.

9.2.        No order as to costs.

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Baloyi AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

FOR THE APPLICANT:                            Advocate MJ Van As

                                                                        Instructed by Cliffe Dekker Hofmeyer

FOR THE THIRD AND

FOURTH RESPONDENTS:                    L Pretorius of UASA the Union

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