Assmang (Pty) Limited t/a Mine v Commission for Conciliation, Mediation and Arbitration and Others (JR273/2017) [2020] ZALCJHB 247 (30 November 2020)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JR273/2017

In the matter between:

ASSMANG (PTY) LIMITED t/a KHUMANI MINE Applicant

and

COMMISSION FOR CONCILIATION, MEDIATION AND

ARBITRATION

First Respondent

COMMISSIONER BONANG MATLI N.O

Second Respondent

ANVER JULIAN LOTTERING Third

Respondent

ASSOCIATION OF MINEWORKERS AND

CONSTRUCTION UNION

Fourth Respondent

Heard: 26 November 2020

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, and publication on the Labour Court’s website. The date and time for hand-down is deemed to be on 30 November 2020 at 18:00

JUDGMENT

TLHOTLHALEMAJE, J

[1] With this application, the applicant seeks an order reviewing and setting aside the ‘Jurisdictional Ruling’ issued by the second respondent (Commissioner), dated 21 November 2017, in which the Commissioner had made a finding that the first respondent, the Commission for Conciliation Mediation and Arbitration (CCMA) had jurisdiction to determine the dispute referred to it by the third respondent (Lottering).

[2] This application followed upon a referral of an alleged unfair labour practice dispute referred to the CCMA by Lottering in August 2017. The dispute before the Commissioner and the subsequent jurisdictional ruling came about against the following summarised background;

2.1 Lottering is employed by the Applicant as a Fitter, and has been in its employ since March 2013. He was initially placed on three months’ probation as a Fitter – Stacker and Reclaimer, and had worked normal office hours until May 2015.

2.2 With effect from May 2015, Lottering moved to seven day production shift as Fitter: Engineering Shift Maintenance, and was thus entitled to receive a shift allowance known as ‘Seven Day Production Week Allowance’ (SDPW), which was treated as a component of his remuneration.

2.3 In December 2002, the Applicant had entered into a Memorandum of Agreement with one of the recognised unions, Solidarity in respect of the Patterson Band C bargaining unit. That agreement was extended to all non-Solidarity members. In regulating the ‘SDPW’, the parties had in terms of the provisions of that agreement agreed that;

‘Employees who transfer from an operations/section working a SDPW will forfeit the SDPW allowance with effect from the date of the transfer’

2.4 What the above provision meant was that should any employee be transferred out of the shift work environment, and revert to normal working hours, that employee would no longer be entitled to the SDPW allowance.

2.5 Lottering’s job fell within the Patterson job band. In May 2017, he was called to a meeting with the Applicant’s Production Supervisor and an AMCU’s official to discuss and consult over the Applicant’s intention to change his working hours from shift work to normal office work.

2.6 Following that meeting, a Memorandum was issued on 29 June 2017, advising Lottering that he was given a month’s notice to prepare for a change of shifts. In the Memorandum the reason for the decision was inter alia that;

‘…it is prejudicial to the company to have you on the 12 hours shift as your ethos and your commitment or your concentration is divided

including your compatibility with you present team and or management. You are most senior on the team and your cooperation with section management is not cordial.

…

This serves to provide you another opportunity gel and fit within the employ of Assmang. You are edge to grow a new leave and improve on your ethos in general’ (Sic)

2.7 On 1 July 2017, Lottering was moved from the position of Fitter: Engineering Maintenance to his old position, which involved working normal office hours, and thus making him not entitled to the SDPW allowance. The Applicant contends that the move was also done in accordance with clause 5.2 of Lottering’s contract of employment which permits it to change his working hours and shift cycles in terms of the ‘BCOEA’, and after consultations with the recognised unions.

[3] Aggrieved at the decision, Lottering referred an alleged unfair labour practice dispute. The dispute came before the Commissioner for arbitration where the Applicant had raised a preliminary point to the effect that the CCMA lacked jurisdiction to determine that dispute based on its contentions that;

3.1 Lottering’s loss of the SDPW shift allowance was as a result of him being moved to normal hours, and that on those grounds, his claim related to a breach of contract.

3.2 The Applicant in terms of the provisions of clause 5.2 of the contract of employment and the collective agreement entered into with Solidarity, retained a discretion whether to place an employee on the SDPW shift system depending on its operational needs.

[4] In response to the preliminary point, Lottering had submitted that working shifts benefitted him as he had earned an extra allowance of R7 403, 67, and that the primary issue for the Commissioner to consider when determining jurisdiction was the reason that led to the benefit being withdrawn, as he held the view that he was treated unfairly for the purposes of his claim under section 186(2)(a) of the Labour Relations Act (LRA).[1]

[5] The Commissioner held that upon a consideration of the Memorandum of 29 June 2017, and the reasons set out therein for the removal of Lottering to ordinary working hours, the real reason for the removal was not for operational reasons but rather as punishment. According to the Commissioner, the true nature of the dispute was one in terms of section 186(2)(b) of the LRA, hence the CCMA had jurisdiction.

[6] In seeking a review of the ruling, the Applicant submitted that;

6.1 The Commissioner incorrectly found that the dispute fell under section 186(2)(b) of the LRA dealing with an unfair labour practice in the form of unfair provision of benefits, when the facts of the dispute did not centre upon an unfair labour practice, but upon an alleged breach of contract of employment. In this regard, the dispute ought to have been referred for adjudication under the provisions of section 77(3) of the Basic Conditions of Employment Act (BCEA).[2]

6.2 The Commissioner failed to appreciate the true nature of the dispute, and further failed to interrogate Lottering’s case that his dispute related to a benefit in terms of section 186(2)(a) of the LRA since he had benefitted from the SDPW. It was submitted that Lottering’s claim was to be put back to shift work in order to receive the allowance, but that this claim was masked as a benefits issue when it was in fact a demand for payment of the allowance, which could however not be pursued before the Commission.

6.3 The Commissioner found that the move from shift work was a form of punishment, which was contrary to the provisions of Lottering’s contract of employment, which permitted or granted the Applicant a discretion to move its employees depending on its operational requirements. To this end, since the move was in accordance with Lottering’s contract of employment read together with the provisions of the collective agreement, the CCMA lacked jurisdiction to hear matters involving a breach of contract.

[7] Flowing from the further pleadings and subsequent heads of argument, together with further supplementary heads of argument submitted with the leave of the Court, the applicant had ultimately relied on third ground of review, i.e., that the Commissioner’s finding that Lottering was moved as a form of punishment was incorrect, as it was never Lottering’s

case that there was discipline short of a dismissal, nor was it suggested in the award as to what offence the disciplinary action may be in respect of. It was reiterated that the move to ordinary normal hours was as a result of an exercise of the Applicant of its rights in terms of the contract of employment and the collective agreement.

[8] The test on review in respect of jurisdictional rulings is not one of reasonableness. It is whether the Commissioner made a correct

finding, i.e., whether the Commissioner was right or wrong[3]. Thus, the issue was whether, objectively speaking, the facts which would give the CCMA jurisdiction to determine the unfair labour

practice dispute existed. If such facts did not exist, then CCMA would lack jurisdiction[4].

[9] The starting point in determining whether the Commissioner’s finding on jurisdiction was correct is an examination of Lottering’s

referral of the dispute to the CCMA. It is appreciated that the Form 7.11 in the CCMA does not constitute pleadings akin to statements of claim in referrals to this Court. However, flowing from Gcaba v Minister of Safety & Security[5], it can with equal measure be accepted that where the jurisdiction of the CCMA is being challenged at the outset, the applicant’s

referral and the nature of the dispute referred for determination should be the determining factors, as that referral irrespective of the allegations made therein, would at the very least, contain the legal basis of the claim under which the applicant has chosen to invoke the CCMA’s competence.

[10] To the extent that it may not be possible to determine the nature of the dispute from the referral given its limitations, it nonetheless

remains the duty of the Commissioner to ascertain the true nature of the dispute by looking at its substance rather than the form it was presented. The substance of the dispute may however only be clearer upon the hearing of the merits of the case[6]. It is inter alia in this context that the CCMA being creature of statute, cannot as a general rule, decide its own jurisdiction, and that it can only make a ruling for convenience.

Ultimately, it is for this Court to decide whether or not the CCMA had jurisdiction in a particular matter[7].

[11] It is not in dispute that Lottering referred an unfair labour practice dispute to the CCMA. In summarising the facts of the dispute, Lottering had alleged that; ‘I was removed from working shifts because I did not want to releave my supervisor. As a result, I lost my shift allowance’ (Sic). As relief, he sought to be placed back on the shift, and further sought maximum compensation.

[12] In opposition to the preliminary point raised at the CCMA, Lottering had implored the Commissioner to look at the reason the Applicant in this case had made a decision to take him off the shift, and whether it was a fair reason, by making reference to section 186(2) (a) of the LRA[8].

[13] Several difficulties arise from the submissions made on behalf of the Applicant that the Commissioner’s ruling is reviewable;

13.1 The first is that Lottering is dominus litis. He seeks to enforce his rights to fair labour practices by relying on the provisions of section 186(2) of the LRA. His claim as was before the Commissioner, and as further persisted with in these proceedings, relates to alleged unfairness, and he has disavowed any reliance on his contract of employment, and thus the provisions of section 77(3) of the BCEA.

13.2 As was stated in Makambi v MEC, Department of Education, Eastern Cape Province[9], whether a Court (in this case, the CCMA), has jurisdiction to consider a particular claim depends upon the nature of the rights

that the claimant seeks to enforce, and whether the claim is good or bad in law is immaterial to the jurisdictional enquiry.

13.3 The second difficulty is that it is not for the Applicant to elect for an employee as to what his/her cause of action should be, and where that dispute ought to be determined. If an employee such as Lottering alleges an unfair labour practice within the meaning of section 186(2) of the LRA, with the substance of his claim being that he was deprived of the SDPW allowance for unfair reasons, it is of no consequence that the allowance emanated from a contract of employment, collective agreement or mere practice. This is so in that in Apollo Tyres South Africa (Pty) Ltd v CCMA & others[10], it was held that a ‘benefit’ for the purposes of s 186(2)(a) is not limited to an entitlement that arises ex contractu or ex lege.

13.4 It was further submitted that Lottering had located his case in the provisions of section 186(2)(a) in view of the Commissioner’s conclusions that he was moved from the shift cycle as a form of punishment. To this end, it would be for him to establish the nature of his alleged unfair labour practice, and to demonstrate in what manner the conduct complained of was unfair. Clearly if he fails to surmount that hurdle, that would be the end of the matter.

13.5 The Commissioner had regard to the submissions before her and the documentary material that was placed before her in concluding that the CCMA had jurisdiction. The Commissioner had not reached a point in the proceedings where she had called for oral evidence, and had relied solely on the documents placed before her, inclusive of the reasons set out in the Memorandum of 29 June 2017, in concluding that the CCMA had jurisdiction. In my view, that finding cannot be faulted, and the mere fact that she had concluded that the reason for the removal was a form of punishment cannot in itself make her conclusions wrong, as clearly the ruling was for convenience at the time in the absence of oral evidence.

[14] It is therefore concluded that the Commissioner correctly found that the CCMA has the requisite jurisdiction to hear the unfair labour practice dispute as referred by Lottering.

[15] It therefore follows that the CCMA has to hear evidence on the merits, and for a finding to be made whether in fact the applicant had committed an unfair labour practice by moving Lottering to normal office hours with the effect that he was deprived of the SDPW. To the extent that the Commissioner in this case had made a factual finding in determining whether the CCMA had jurisdiction, and without having heard the entire merits of the dispute, it is my view that upon this matter being reverted back to the CCMA, the merits should be heard by a Commissioner, other than the second respondent.

[16] In regards to the issue of costs, it is worth repeating that litigants have been reminded of the provisions of section 158(1B) of the LRA[11], and the need not to be hasty in seeking to review CCMA rulings that are not dispositive of disputes. In this case, no effort was made to indicate in what material respects the Court ought to be of the opinion that it is just and equitable to review the ruling made before the issue in dispute was finally determined. At the core of the Applicant’s objection to the jurisdiction of the CCMA was that Lottering’s claim was contractual. This approach lost sight of the trite principle that a litigant must stand and fall by his/her claim, and that an employee is entitled to bring a claim under the provisions of section 186(2) of the LRA if the conduct complained of is arbitrable under those provisions.

[17] Under the provisions of section 162 of the LRA, this Court when making an award of costs, must have regard to the requirements of law and fairness. In deciding whether to order payment of costs, the court may take into account, among others, the conduct of the parties in proceeding with the matter before the Court and during the proceedings. In MEC for Finance (KZN) and Another v Dorkin NO and Another, it was held that;

‘[T]he norm ought to be that costs orders are not made unless those requirements (of law and fairness) are met. In making decisions on costs orders this court should strive to strike a fair balance between, on the one hand, not unduly discouraging workers, employers,

unions and employer organisations from approaching the Labour Court and this court to have their disputes dealt with, on the other,

allowing those parties to bring to the Labour Court and this court frivolous cases that should not be brought to court. This is a balance that is not always easy to strike, but if the court is to err, it should err on the side of not discouraging parties to approach these courts with their disputes…’[12]

[18] In this case, I agree with the submissions made by Mr Cook that indeed the application for review was ill-advised, and there is no reason why Lottering or AMCU should be burdened with its costs. There was clearly no reason why Lottering had to wait since 2017 to have his dispute heard before the CCMA, and it cannot be correct as submitted by Mr Makka on behalf of the Applicant, that the application was bona fide, or that the Applicant had acted reasonably in persisting with it.

[19] The dispute before the Commissioner was not complex, and could have been disposed of at the time. Even if the Applicant would have been aggrieved at the outcome, it would still have had recourse by way of review proceedings. The Applicant instead adopted an extraordinary stance, contrary to the provisions and aims of section 158(1B) of the LRA, which stance clearly defeated the statutory purpose of expeditious dispute resolution as espoused by the LRA. In awarding costs against the Applicant, this would not not unduly discourage parties from approaching this Court to have their disputes dealt with. Such a costs order would instead discourage

parties from bringing matters that are doomed to fail, and which are manifestly meant to frustrate the expeditious resolution of dispute at forums designed to deal with such disputes.

[20] Accordingly, it is deemed fair to make the following order.

Order:

1. The Applicant’s application to review and set aside the ‘Jurisdictional Ruling’ of the Second Respondent issued on 21 November 2017 under case number NV22240-17 is dismissed.

2. The First Respondent (CCMA) is directed to set down the dispute between the parties for arbitration before a Commissioner other than the Second Respondent.

3. The Applicant is ordered to pay the costs of this application.

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Representation:

For the Applicant: Adv. A Makka, instructed by Cliffe Dekker Hofmeyr Inc

For the 3rd – 4th Respondents: Adv. A Cook, instructed by Larry Dave Attorneys

[1] Act 66 of 1995, as amended

[2] Act 75 of 1997, as amended

[3] Jonsson Uniform Solutions (Pty) Ltd v Lynette Brown and Others [2014] JOL 32513 (LAC) at para 35

[4] SA Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others [2008] ZALAC 3; [2008] 9 BLLR 845 (LAC); (2008) 29 ILJ 2218 (LAC) at para 41

[5] (2010) 31 ILJ 296 (CC) at para 75, where it was held; “Jurisdiction is determined on the basis of the pleadings, as Langa CJ held in Chirwa, and not the substantive merits of the case. If Mr Gcaba‘s case were heard by the High Court, he would have failed for not being able to make out a case for the relief he sought, namely review of an administrative decision. In the event of the Court‘s jurisdiction being challenged at the outset (in limine), the applicant‘s pleadings are the determining factor. They contain the legal basis of the claim under which the applicant has chosen to invoke the court‘s competence. While the pleadings – including in motion proceedings, not only the formal terminology of the notice of motion, but also the contents of the supporting affidavits – must be interpreted to establish what the legal basis of the applicant‘s claim is, it is not for the court to say that the facts asserted by the applicant would also sustain another claim, cognisable only in another court. If however the pleadings, properly interpreted, establish that the applicant is asserting a claim under the LRA, one that is to be determined exclusively by the Labour Court, the High Court would lack jurisdiction. An applicant like Mr Gcaba, who is unable to plead facts that sustain a cause of administrative action that is cognisable by the High Court, should thus approach the Labour Court.”

[5] (2010) 31 ILJ 296 (CC) at para 75, where it was held;

“Jurisdiction is determined on the basis of the pleadings, as Langa CJ held in Chirwa, and not the substantive merits of the case. If Mr Gcaba‘s case were heard by the High Court, he would have failed for not being able to make out a case for the relief he sought, namely review of an administrative decision. In the event of the Court‘s jurisdiction being challenged at the outset (in limine), the applicant‘s pleadings are the determining factor. They contain the legal basis of the claim under which the applicant has chosen to invoke the court‘s competence. While the pleadings – including in motion proceedings, not only the formal terminology of the notice of motion, but also the contents of the supporting affidavits – must be interpreted to establish what the legal basis of the applicant‘s claim is, it is not for the court to say that the facts asserted by the applicant would also sustain another claim, cognisable only in another court. If however the pleadings, properly interpreted, establish that the applicant is asserting a claim under the LRA, one that is to be determined exclusively by the Labour Court, the High Court would lack jurisdiction. An applicant like Mr Gcaba, who is unable to plead facts that sustain a cause of administrative action that is cognisable by the High Court, should thus approach the Labour Court.”

[6] National Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and Another (2003) 24 ILJ 305 (CC) at para 52, where it was held: “It is the duty of a court to ascertain the true nature of the dispute between the parties. In ascertaining the real dispute, a court must look at the substance of the dispute and not at the form in which it is presented. The label given to a dispute by a party is not necessarily conclusive. The true nature of the dispute must be distilled from the history of the dispute, as reflected in the communications between the parties and between the parties and the Commission for Conciliation, Mediation and Arbitration (CCMA), before and after referral of such dispute. These would include referral documents, the certificate of outcome and all relevant communications. …” See also; CUSA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC) at para 66, where it was held “… a commissioner is not necessarily bound by what the legal representatives say the dispute is. The labels that the parties attach to a dispute cannot change its underlying nature. A commissioner is required to take all the facts into consideration including the description of the nature of the dispute, the outcome requested by the union and the evidence presented during the arbitration.... The dispute between the parties may only emerge once all the evidence is in.”

[6] National Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and Another (2003) 24 ILJ 305 (CC) at para 52, where it was held:

“It is the duty of a court to ascertain the true nature of the dispute between the parties. In ascertaining the real dispute, a court must look at the substance of the dispute and not at the form in which it is presented. The label given to a dispute by a party is not necessarily conclusive. The true nature of the dispute must be distilled from the history of the dispute, as reflected in the communications between the parties and between the parties and the Commission for Conciliation, Mediation and Arbitration (CCMA), before and after referral of such dispute. These would include referral documents, the certificate of outcome and all relevant communications. …”

See also; CUSA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC) at para 66, where it was held

“… a commissioner is not necessarily bound by what the legal representatives say the dispute is. The labels that the parties attach to a dispute cannot change its underlying nature. A commissioner is required to take all the facts into consideration including the description of the nature of the dispute, the outcome requested by the union and the evidence presented during the arbitration.... The dispute between the parties may only emerge once all the evidence is in.”

[7] SA Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others at para 40

[8] Transcript of Proceedings at page 14, Lines 5 - 14

[9] Makambi v Member of Executive of Council, The Department of Education, Eastern Cape Province [2008] ZASCA 61; [2008] 4 All SA 57 (SCA); 2008 (5) SA 449 (SCA); [2008] 8 BLLR 711 (SCA); (2008) 29 ILJ 2129 (SCA) at para 30

[10] (2013) 34 ILJ 1120 (LAC)

[11] Which provides; ‘The Labour Court may not review any decision or ruling made during conciliation or arbitration proceedings conducted under the auspices of the Commission or any bargaining council in terms of the provisions of this Act before the issue in dispute has been finally determined by the Commission or the bargaining council, as the case may be, except if the Labour Court is of the opinion that it is just and equitable to review the decision or ruling made before the issue in dispute has been finally determined.’

[11] Which provides;

‘The Labour Court may not review any decision or ruling made during conciliation or arbitration proceedings conducted under the auspices of the Commission or any bargaining council in terms of the provisions of this Act before the issue in dispute has been finally determined by the Commission or the bargaining council, as the case may be, except if the Labour Court is of the opinion that it is just and equitable to review the decision or ruling made before the issue in dispute has been finally determined.’

[12] MEC for Finance: Kwazulu-Natal and Another v Dorkin NO and Another (DA16/05) [2007] ZALAC 34; [2008] 6 BLLR 540 (LAC) at para 19