Eskom Holdings SOC Limited v Commission for Conciliation, Mediation and Arbitration and Others (PR 26/20) [2022] ZALCPE 6 (11 May 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Not Reportable

CASE NO: PR 26/20

In the matter between:

ESKOM HOLDINGS SOC LIMITED

Applicant

and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

First Respondent

COMMISSIONER KAGISO NTHITE

Second Respondent

COMMISSIONER MALUSI MBULI Third Respondent

ZIMBINI LABASE

Fourth Respondent

Heard: 26 January 2022

Delivered: This judgment was handed down electronically by circulation to the Applicant’s Legal Representative and the Fourth Respondent’s representative by email, publication on the Labour Court website and release to SAFLII. The date and time for handing- down is deemed to be 12h00 on 11 May 2022.

JUDGMENT

LALLIE, J

[1] The first respondent, the Commission for Conciliation, Mediation and Arbitration (the CCMA) is a creature of section 112 of the Labour Relations Act[1] (the LRA). It has no inherent jurisdiction and may resolve only those disputes which fall within its prescribed jurisdiction. When it assumes jurisdiction and arbitrates disputes which fall outside its jurisdiction the resultant awards become defective and may be reviewed and set aside envisaged in section 145(1) of the LRA. In this application the applicant seeks to assert its right to have an arbitration award issued by the third respondent on 26 November 2019 reviewed and set aside. The applicant’s main grounds for review are that the third respondent erred in dismissing its point in limine that the CCMA lacked the necessary jurisdiction to arbitrate the dispute the fourth respondent had referred against it. The application is opposed by the fourth respondent.

[2] The applicant delayed by 8 weeks in filing the application at the hand and sought condonation. The condonation application is unopposed. Having considered it, I am satisfied that the applicant has shown good cause to have the delay condoned. The reasons are that notwithstanding the excessive delay, the applicant proffered the reasonable explanation that the delay resulted from the applicant’s attempts to comply with its internal rules governing filing of review applications. The delay did not prejudice the fourth respondent. The interest of justice therefore justified the condonation.

[3] The facts which led to the filing of this application are not in dispute. They are that the fourth respondent is employed by the applicant at its customer service department at its East London regional head office. On 7 June 2019 she referred an unfair labour practice dispute relating to benefits to the CCMA in terms of section 186 (2)(a) of the LRA against the applicant. The relief she sought was a salary adjustment and back pay. The basis of the fourth respondent’s dispute was that the applicant had failed to pay her in terms of its income differentials exercise while it had paid other employees in terms of the same exercise. It is common cause that the applicant implemented its income differentials decision in compliance with the provisions of the income differentials section of the Employment Equity Act[2] (the EEA). The fourth respondent was eligible to have her salary adjusted in terms of the income differentials exercise. The applicant’s system failed to identify her as an eligible employee and her salary was consequently not adjusted. The applicant promised to consider her salary adjustment in the second run which was scheduled for December 2018, the following financial year, but it failed again. The dispute the fourth respondent referred on 7 June 2019 was in response to the applicant’s continued failure to adjust her salary and pay her money due to her in terms of the income differentials exercise.

[4] The CCMA’s attempt to resolve the dispute through conciliation was unsuccessful and it was referred to arbitration. Before the commencement of the arbitration the applicant raised a point in limine challenging the jurisdiction of the CCMA to arbitrate the dispute. The applicant based its assertion that the CCMA lacked jurisdiction on the allegation that the fourth respondent’s dispute fell outside the ambit of section 186(2) (a) of the LRA as it related to equal pay for work of equal value which does not constitute a benefit. In a ruling issued on 5 September 2019, the point in limine was dismissed and the matter was scheduled for arbitration.

[5] Before the arbitration was held the applicant raised the point in limine that the CCMA lacked jurisdiction again but on different grounds. The basis of the point in limine was that the fourth respondent’s dispute related to remuneration and therefore fell outside the realm of unfair labour practice. The point in limine was dismissed and the dispute was arbitrated. In an award issued on 26 November 2019, the third respondent made a finding that the point in limine had already been dealt with and decided in the ruling of 5 September 2019. The third respondent further expressed his intention not to entertain the point in limine on jurisdiction again. He, however, expressed the view that having looked at the fourth respondent’s claim, he agreed with the ruling of 5 September 2019. He re-affirmed the ruling of 5 September 2019 and dismissed the point in limine. The third respondent found that the applicant had committed an unfair labour practice against the fourth respondent and directed the applicant to pay the fourth respondent in terms of the income differentials exercise retrospectively from 17 December 2017.

[6] When this application was launched the applicant challenged both the ruling of 5 September 2019 and the award of 26 November 2019. The applicant later abandoned the challenge against the ruling of 5 September 2019. The grounds the applicant sought to rely on in challenging the award of 26 November 2019 are that the third respondent misdirected himself in finding that the jurisdictional point raised at the hearing before him was similar to the one which had been determined by the second respondent. A further ground for review was that the third respondent failed to consider the submissions the applicant made in respect of the basis of the point in limine before him. The applicant also relied on the third respondent’s failure to issue his ruling on the point in limine first and hearing the arbitration on the merits separately. Based on the above grounds, the applicant submitted that the third respondent failed to consider its submissions, grossly misapplied legal principles and committed a gross irregularity by applying flawed reasoning in arriving at his decision.

[7] In the supplementary affidavit the applicant added the variation ruling which the third respondent subsequently made to the decisions it sought this court to review and set aside. It was the applicant’s case that the ruling on the point in limine and the third respondent’s final decision are incorrect and unreasonable as they are disconnected from the evidence and the stated case which, in the applicant’s view, proved that the dispute before the third respondent was not an unfair labour practice.

[8] The fourth respondent’s grounds for opposition are that the third respondent considered the point in limine and reached a correct decision on it. She insisted that the entire award under review is both correct and reasonable.

[9] The applicant’s case is based on two decisions, namely, a jurisdictional ruling and the final decision. The test for review of jurisdictional rulings is correctness.[3] In order to pass muster, a jurisdictional ruling must be correct because the CCMA either has the necessary jurisdiction or lacks it. The applicant submitted that the third respondent’s ruling on jurisdiction is incorrect because the dispute before the third respondent related to salary increase. It was a salary related matter and not an unfair labour practice as envisaged in section 186(2) (a) of the LRA. The applicant had therefore to prove that the third respondent’s ruling that the dispute before him was an unfair labour practice was wrong. The third and fourth respondents relied on Apollo Tyres South Africa (Pty) Ltd v CCMA[4] in defence of the correctness of the ruling. The applicant differed and argued that Apollo Tyres is distinguishable as it is not based on remuneration. A benefit as envisaged in section 186(2)(a) of the LRA is defined as follows:

“in my view, the better approach would be to interpret the term benefit to include a right or entitlement to which the employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer’s discretion. In my judgement “benefit” in section 182(2)(a) of the Act means existing advantages or privileges to which an employee is entitled as a right or granted in terms or a policy or practice subject to the employer’s

discretion.”[5]

[10] It is common cause that the fourth respondent is entitled to the salary adjustment she sought in the dispute she referred to the CCMA. The adjustment was granted to the fourth respondent in terms of a decision that was taken by the applicant in its attempt to comply with the income differentials section of the EEA. The fourth respondent’s entitlement is therefore ex lege and in terms of the applicant’s decision to comply with its statutory obligations. It is common cause that the reason the fourth respondent’s salary was not adjusted in terms of the income differentials exercise is that the applicant’s system failed to pick her name up. On the facts that were common cause the fourth respondent proved her entitlement to the salary adjustment in terms of the implementation of the income differentials decision. The dispute that the fourth respondent referred falls within the definition of a benefit as enunciated in the Apollo Tyres decision. The applicant’s argument at arbitration to the effect that the dispute was a remuneration dispute may be valid. Its validity, however, did not render the third respondent’s decision wrong. The reason is that the same conduct may fall within the ambit of an unfair labour practice, unfair discrimination and a remuneration dispute. It is for the referring party which is dominus litis to decide the forum it wishes to refer the dispute to. If the jurisdiction of the chosen forum is proved the fact that the dispute is also justiciable in other fora does not deny the referring party the right to approach that forum of choice.

[11] Jurisdiction is determined on the manner in which a dispute is referred and defined. Nothing in the language used by the fourth respondent in defining her dispute and the relief she sought supports the applicant’s claim. The third respondent considered the point in limine but erred in not recognizing that the applicant had relied on different grounds. A further question that needs to be answered is

whether the third respondent’s error of deciding the point in limine as if it was based on the same grounds as the one which was decided in the ruling of 5 September 2019. The test for review based on errors made by the commissioners in the conduct of an arbitration is whether the errors had the effect of distorting the commissioner’s decision.[6] I have already given reasons for the finding that the jurisdictional ruling correct. The errors therefore did not result in the commissioner reaching an incorrect decision.

[12] The third respondent’s failure to arbitrate the dispute on the merits at a different time does not constitute a valid ground for review. Section 138(1) of the LRA enables commissioners to arbitrate disputes in a manner they consider appropriate in order to determine them fairly and quickly with the minimum of legal formalities. The third respondent did not breach section 138(1) in the manner in which he conducted the arbitration.

[13] The applicant did not establish reasons to have the final decision in favour of the fourth respondent reviewed and set aside.

[14] In the premises, the following order is made:

Order:

1. The late filing of the application for review is condoned.

2. The application for review is dismissed.

3. There is no order as to costs.

Z. Lallie

Judge of the Labour Court of South Africa

[1] Labour Relations Act 66 of 1995 as amended.

[2] Employment Equity Act 55 of 1998

[3] SA Rugby Players’ Association (SARPA) and Others v SA Rugby (Pty) Ltd and Others.

[4] Ibid at para [50]

[5] Imatu obo Verster v Umhlanthuze Municipality

[6] Head of the Department of Education v Mofokeng and others (2015) 36 ILJ 2802 (LAC).