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REPUBLIC OF SOUTH AFRICA

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Not of interest to other judges

Case no: J2934/12

In the matter between

TIISETSO WILLIAM MOKITIMI	Applicant
and
COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATIONM	First Respondent
SEDIBENG DISTRICT MUNICIPALITY	Second Respondent

 

Heard:           12 July 2016                                                                                                  

Delivered:     12 July 2016

Edited:          10 October 2016

EX TEMPORE JUDGMENT

MOTHIBI, AJ

[1] This is an application brought by the Applicant employee, seeking the following orders:

[1.1]         compelling the First Respondent, which I shall refer to as the CCMA, to issue an outcome for the Applicant’s application for condonation dated 5 June 2012 and received by the CCMA on the same day;

[1.2]         alternatively that the refusal by the CCMA to issue an award is seen as a constructive refusal of an application for condonation that is accordingly reviewed and set aside by the court; and for this court to further order the CCMA to consider the Applicant’s application for condonation.

[2] Before me was Mr Hayward who took us through the history of the matter. And it is important to just highlight some of the background facts to the matter so that my reason for giving the order I am about to announce are clear. The history of the matter, briefly, is as follows: On or about 2 November 2011 the employee party, the Applicant, referred a dispute to the CCMA by way of completing an LRA 7(11) as one customarily does. On it he ticked two boxes as indicative of the nature of the dispute that was to be conciliated, being an unfair discrimination dispute and an unfair labour practise dispute. The CCMA conciliated the disputes as referred and issued a certificate of outcome. And in the certificate of outcome, dated 11 January 2012, it characterised the dispute as relating to one of an unfair discrimination; and accordingly, directed the Applicant, if he so wished, to pursue his unfair discrimination dispute by approaching this court. The Applicant chose not to do so.

[3] What he in fact did, and he says in his affidavit that he did this pursuant to taking advice from his legal representatives, was to file with the CCMA a request for an unfair labour practise dispute to be arbitrated, and accompanying that request was an application for condonation ostensibly on the basis that a request for arbitration was made outside the applicable time periods.

[4] The CCMA responded, and this was conceded by Mr Hayward, to the application or request for arbitration. It did not directly reply or deal with the condonation application. But it simply sent, what appears to be a standard form to the Applicant, advising him that it was in receipt thereof. And let me quote here. It says:

[4.1]         ‘We are in receipt of the above referral form for arbitration. However, the case has temporarily closed as the following information has not been supplied and ticked.’ Next to the applicable reason is this: ‘unfair discrimination issue must be referred to the Labour Court.’

[5] Upon receipt of this, the Applicant did not seek to bring an application to review and set aside the certificate of outcome of the conciliation. But what he sought to do was to bring this application, which as I say, he brings to have an order given by this court to compel the CCMA to issue an outcome or in fact a ruling in respect of his application for condonation. As I said, in the alternative he says that it should be then seen the refusal, as he puts it, by the CCMA to issue an award is a constructive refusal; and that constructive refusal should be set aside and reviewed.

[6] Appearing before me,   Mr Hayward conceded and abandoned some of the original prayers he conceded that the CCMA has in fact by virtue of… in the papers it is page 11 of that form that it filled in saying that the dispute must go to the Labour Court, exercised its powers and he accordingly abandoned the Applicant’s prayer, seeking… the Applicant seeking an order compelling this… an order from this court compelling the CCMA to issue an outcome.  So, that one he has abandoned.

[7] What he has persisted with is the alternative prayer, which appears to be… in which he says that the First Respondent’s refusal to issue an award is a constructive refusal for an application for condonation and should be reviewed and set aside. He has also asked, and this he did in court, that the court also should exercise its powers as conferred upon it, as he sees it in terms of section 158; and the applicable section that he relied upon was section 158(2) of the LRA. And that section reads that:

[7.1]         “If at any stage after a dispute has been referred to the Labour Court it becomes apparent that the dispute ought to have been referred to arbitration, the court may stay the proceedings and refer to arbitration; alternatively….”

[8] And this is important. I quote from the Act:

[8.1]         “b) With the consent of the parties, if it is expedient to do so, continue with the proceedings with the court sitting as arbitrator.”

[9] Now, importantly to note from there is that this court can only deal with the dispute as characterised by the Applicant in this court when he [indistinct] unfair labour practise dispute if it sits as arbitrator, but that in sitting as an arbitrator it must be with the consent of both parties, which consent is not… the court does not have. So, it cannot do that.

[10] The next question is whether it can stay the proceedings and refer to arbitration. But the most important question before the court can refer any dispute to arbitration: it must be a dispute that has been referred to this court. This dispute on an unfair discrimination is not before this court. As I said in the beginning, the Applicant sought or chose. He made a conscious choice. Remember, at that point the Applicant had legal representatives. He chose to rather not refer or pursue his claim in this court by referring an unfair discrimination dispute.

[11] What he then sought to do so is to seek to exercise his rights, as he does have rights, to… for in order for this court to compel the CCMA to do something which he has already done. He has abandoned that. He now seeks the court to review and set aside, but in fact the refusal by the CCMA, as he sees it, to grant him condonation. That order cannot be given to him, because what the CCMA has done, as is apparent from page 11 of the papers, is that it has considered at the very least the request for arbitration. And it has come to the conclusion that relying on the certificate issued by the conciliating commissioner the matter must go to the Labour Court. If the Applicant was not satisfied either with the certificate, alternatively even with this characterisation by the CCMA, he ought to have brought an application to review and set aside this ruling in terms of section 158 read with section 145.

[12] In that regard, the test for review is well-known. The Applicant has not made out any cases whatsoever in these papers to support an order by this court to review and set aside either the certificate, even with respect to him, the alleged constructive condonation refusal, which I find is not the case in any event. That the CCMA has exercised its powers by considering whether the dispute for which condonation is sought is one that can be arbitrated. If the answer to that question is that this is not a dispute that can be arbitrated, there is no need to deal with condonation. It is as simple as that.

[13] I find that in the circumstances that the application as originally or the orders originally sought have no basis and are dismissed. Similarly, the orders which were amended and put forward in this court by Mr Hayward are also with no merit and are dismissed. I find no reason having regard to the fact that the Applicant was legally represented; he understood his rights; that he had other avenues available to him. It was not necessary to drag the first and second respondent, but principally in this case the First Respondent to these proceedings with an ill-conceived application; why costs should not follow the cause.

[14] In the premise, I make the following order:

[14.1]      The application is dismissed;

[14.2]      The Applicant is to pay the costs of the application.

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J Mothibi

Acting judge of the Labour Court of South Africa

Appearances:

For the Applicant:                 S Hayward

Instructed by:                       Nishlan Moodley Attorneys

For the Respondent:           M Sibanda

Instructed by:                       Cliffe Dekker Hofmeyr Attorneys

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