IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable/Not Reportable
Case no: JR824/2011
In the matter between:
T.O.V CLEANING SERVICES CC				First Applicant
HETLISA CLEANING SERVICES CC				Second Applicant
LESEDI MZANZI CLEANING SERVICES CC			Third Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION				First Respondent
COMMISSIONER S MORWA (NO)				Second Respondent
SA-AAWU								Third Respondent
J MALATSI AND 25 OTHERS	4th to 30th Respondents
SAMPHINYYANA LUFUNO AND 45 OTHERS	31st to 76th Respondents
MAZIBUKO PRINCESS AND 59 OTHERS	77th to 136th Respondents
Heard:	15 July 2016
Delivered:	26 October 2016
JUDGMENT
KIRSTEIN AJ
[1]	The applicants in this matter seek to review the arbitration award issued by the second respondent under case number GAEK2201-10. At the arbitration on 27 October 2010 conducted under the auspices of the first respondent, the following cases GAEK2202-10, GAEK2198-10 and GAEK2197-10 were consolidated by agreement between the parties. The second respondent determined in the award under review in casu, the following:
‘7.	AWARD
7.1	The applicants’ dismissal were substantively unfair.
7.2	The respondents (see 7.3 below) are ordered to reinstate the applicants on the same terms of employment that existed prior the termination, and the applicants must report for duty on 01 December 2010.
7.3	The respondents are ordered to pay the applicants their arrear wages as follows:
7.3.1	T.O.V CLEANING COMPANY:  Mr Malatsi and 25 Others, R8238.each.
7.3.2	HETLISA CLEANING COMPANY:  Mr Samphinyana Lufuno and 45 Others R8238.00 each.
7.3.3	LESEDI MZANSI CLEANING COMPANY:  Mazibuko Princes and 59 Others, R8238.00 each.
7.3.4	THUMATHINA CLEANING COMPANY:  Makgatho T and 2 Others:  R8238.00 each.
7.4	All the above monies are due and payable on 01 December 2010.
7.5	There is no order as to costs.’
[2]	The 4th to 30th respondents were employed by the first applicant. The 31st and 76th respondents were employed by the second applicant. The 76th to 136th respondents were employed by the third applicant. The 4th to the 136th respondents (hereinafter referred to as the employees) were contracted by the applicants to render cleaning services at OR Tambo International Airport. The employees were members of the third respondent. During 2010, members of the third respondent embarked on a strike reported to be a protected strike whereas the applicants regarded the strike as unprotected. 
[3]	The employees were summonsed to a disciplinary hearing for not reporting for duty. The employees did not attend the disciplinary hearing and were dismissed in their absence. The third respondent referred an unfair dismissal dispute to the first respondent. On 27 October 2010, an arbitration was conducted under the auspices of the first respondent. The second respondent ruled that the applicants were not allowed to be represented by a person purported to be a legal representative. The second respondent refused a request for postponement on behalf of the applicants. The applicants did not continue with the arbitration. The arbitration continued in the absence of the applicants’ representative. On 29 October 2010, the second respondent issued the arbitration award under review. The applicants’ representative was not allowed to represent the applicants at the arbitration.  
Review
[4]	In paragraph 6.1 of the award, the second respondent indicated inter alia the following:
‘I have before me the uncontested evidence of the applicants on which to base my award, as shown earlier on in this award that the respondents decided to abandon the proceedings. In order for substantive fairness to be proved, the respondents must adduce evidence showing that an offence was committed and that dismissal was appropriate under the circumstances. The facts of this case are that the respondents dismissed the applicants for abscondment, despite the fact that the applicants were on a protected industrial actions. It is not clear why the respondents chose to ignore notices of industrial actions before them and proceed to accuse the applicants of having absconded from work. There is evidence that the respondents were notified of the strikes as they had also responded to such notices, thereby confirming their knowledge of the ongoing industrial actions. I am also satisfied that such industrial actions were in compliance with Section 64 OF THE Labour Relations Act, as certificates of outcomes were issued out and that notices were served accordingly. It cannot be correct that employees who are on protected industrial actions can be deemed to have absconded. Even if they embark on unprotected industrial action, either because they have not complied with the statutory requirements in terms of Section 64, or they were interdicted from embarking on strike, they would not be deemed to have absconded. Industrial action means withdrawal of labour in pursuit of a demand for a matter of mutual interest, and abscondment does not carry the same meaning.’
The applicants have raised the following grounds of review:
-	The second respondent produced an award a reasonable commissioner under the circumstances would not have produced.
-	The award is incorrect.
-	The second respondent acted ultra vires and thereby committed an irregularity by arbitrating a dispute he found to emanate from participation in a protected strike.
[5]	The review application is opposed on the following basis:
‘It is submitted that the Commissioner’s award was correctly determined. The dismissal for absconding by the Respondents and the Respondents in turn alleged a strike. The allegations and subsequent dismissal of the Respondents was not about the legality of the strike. It is submitted that in order therefore for the Commissioner to determine whether dismissal was fair, that is, whether Respondents absconded, he had to determine the defence and / or obligations of the Respondents, namely whether there was a strike.’

Evaluation
[7]	The employees received from the applicants a notice to attend a disciplinary hearing stating the following:
‘You are hereby invited to attend a disciplinary hearing. Charges: Unauthorised absence and participation in unauthorised strike scheduled for Friday 9/7/2010 at 09h00 onwards at Lesedi Mzanzi Offices. If you are not present on that date and time scheduled we will proceed in your absence and whatever outcome in concluding dismissal will be binding upon you.’
In paragraph 3 of the unfair dismissal dispute referral document, it is stated that the unfair dismissal dispute relates to Section 187(1)(a) of the Labour Relations Act, 66 of 1995 (hereinafter referred to as the “LRA”).  
The second respondent in his analysis found inter alia as follows:
‘… the facts of this case are that the respondent dismissed the applicant of having absconded, despite the fact that the applicants were on a protected industrial action…’
[8]	Section 187 of the LRA states inter alia the following:
‘187. Automatically unfair dismissals. – (1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is – 
(a)	That the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action that complies with the provisions of Chapter IV…’
Section 191 of the LRA, states inter alia the following:
‘191 (5)(b) the employee may refer the dispute to the Labour Court for adjudication if the employee has alleged that the reason for dismissal is –
(i)	automatically unfair;…’
Section 145(2)(a)(iii) of the LRA states that a commissioner commits a reviewable defect if he or she “exceeded the commissioner’s powers”.  
[9]	In the case of Le Roux v CCMA and Others Wallis AJ held:
‘It does not mean that an award can only be set aside under this section if what is awarded is greater than that which can permissibly be awarded. It simply means that if the award made is one which the commissioner had no power to make then it falls to be set aside as an award in excess of the commissioner’s powers.’
The second respondent found that the employees were absent due to a protected strike. The second respondent therefore committed a jurisdictional error in that Section 191 as referred to above states that the dismissal of an employee while on a protected strike constitutes an automatic unfair dismissal in terms of Section 187 as referred to above.    
[10]	Correctness is the review test in a review application based on jurisdictional error. In the case of South African Players’ Association (SARPA) and Others v SA Rugby (Pty) Ltd and Others the following is stated:
‘“The question was not whether the finding of the commissioner (on jurisdiction) was justifiable, rational or reasonable.  The issue was simply whether, objectively speaking the facts which would give the CCMA jurisdiction to entertain the dispute existed.  If such facts did not exist, the CCMA had not jurisdiction irrespective of its finding to the contrary.’[own emphasis]
In succeeding with a correctness review all that the applicant needs to establish is that the commissioner’s assumption of jurisdiction was objectively wrong. The second respondent exceeded his powers in determining an automatic unfair dismissal dispute.
[10]	The applicants have made out a case for review of the arbitration award of the second respondent. In fairness and law costs should not follow the result.
Order
[11]	The following order is made:
11.1	The arbitration award by the second respondent under case number GAEDK2201-10 is reviewed and set aside.
11.2	No order as to costs.

________________
Kirstein AJ
Acting Judge of the Labour Court of South Africa

APPEARANCES:
FOR THE APPLICANTS:		M S Molebaloa Attorneys Inc.
FOR THE RESPONDENTS:	M Erasmus