Food lovers Holdings (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1768/19) [2021] ZALCJHB 40 (23 February 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR1768/19

In the matter between:

FOOD LOVERS HOLDINGS (PTY) LTD Applicant

and

COMMISSION FOR CONCILIATION MEDIATION

AND ARBITRATION First

Respondent

FAIZEL MOOI

Second Respondent

JOAD ANTONIO FERNANDES Third Respondent

Enrolled: 17 February 2020

Decided on the papers

Delivered: In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be 23 February 2021.

Summary: Review application – jurisdiction of the CCMA – when parties are parties to a bargaining council or fall within the registered scope of a bargaining council, the jurisdiction of the CCMA is contingent on the exercise of its options set out in s 147(2) and (3) of the LRA.

JUDGMENT

NKUTHA – NKONTWANA, J

Introduction

[1] In this an unopposed application the applicant, Food Lovers Holdings (Pty) Ltd (Food Lovers) seeks an order reviewing and setting aside the arbitration award issued by the second respondent (Commissioner) under case number GA24796-17 dated 25 June 2018 under the auspices of the first respondent, the Commission for Conciliation Mediation and Arbitration (CCMA). The Commissioner found that the third respondent, Mr Joao Antonio Fernandes (Mr Fernandes) was constructively dismissed and awarded him compensation of R229 118.84 which is equivalent to three months’ salary.

[2] Food Lovers takes issue with the jurisdiction of the CCMA. Firstly, that the CCMA has no jurisdiction to deal with the matter as Mr Fernandes was employed in its butchery section which is regulated by the Main Agreement of the Bargaining Council for the Meat Traders, Gauteng, (Council).[1] Secondly, that Mr Fernandes failed to prove a case of constructive dismissal.

Pertinent facts

[3] Mr Fernandes was employed as a Butchery Manager in one of Food Lovers’ stores in Hillfox, Roodepoort. He was a senior manager with about 60 staff members reporting to him and was earning a salary of R76 373.28 per month. I pause to mention that Mr Fernandes was employed by his brother, Mr Joe Fernandes, the owner of Glenaire Butchery (Glenaire), which was purchased by Food Lovers. All Glenaire’s staff members, Mr Fernandes and his brother were transferred to Food Lovers. Mr Fernandes was appointed as the Butchery Manager, reporting to his brother, the Regional Manager.

[4] On 6 October 2017, Mr Fernandes resigned with immediate effect. It is apparent from the record of his exit interview that he was not happy with the fact that his conditions of service had changed and he was required to work more hours without being paid for overtime. This he demanded despite the fact the he was earning above thresholds set in terms of section 10 of the Basic Conditions of Employment Act[2] (BCEA).

[5] Mr Mamba, a person responsible for Food Lovers’ Human Resources, testified he was familiar with Mr Fernandes even though he was based in Cape Town as he had visited the Hillfox store on several occasions. He was never made aware of Mr Fernandes complaint or received any formal grievance, a fact conceded by Mr Fernandes during his cross-exanimation.

[6] Mr Fernandes referred a disputed in terms section 186(1)(e) of the Labour Relations Act[3] (LRA), claiming constructive dismissal,[4] hence the impugned award.

Bargaining Council Jurisdiction

[7] It is instructive that the terms of the Main Agreement apply to all business that trade in retail sale of fresh and/or frozen raw meat, including a butchery section or department of a multiple commodity store, in various Magisterial districts in Gauteng and, pertinently, Roodepoort. It is also clear from Mr Fernandez Pay slip that the following Council deductions had been effected: Provide fund, funeral cover and levies.[5]

[8] It is absolutely obvious, accordingly, that Food Lovers and Mr Fernandes are bound by the Main Agreement since they fall within the registered scope of the Council. In terms of section 147 of the LRA, the CCMA could elect whether to resolve a dispute that has been erroneously referred to it or transfer it to the relevant bargaining council. Section 147(2) and (3) of the LRA provides:

‘(2)(a) If at any stage after a dispute has been referred to the Commission, it becomes apparent that the parties to the dispute are parties to a council, the Commission may –

(i) refer the dispute to the council for resolution; or

(ii) appoint a commissioner or, if one has been appointed, confirm the appointment of the commissioner, to resolve the dispute in terms of this Act.

(b) ...

(3)(a) If at any stage after a dispute has been referred to the Commission, it becomes apparent that the parties to the dispute fall within the registered scope of a council and that one or more parties to the dispute are not parties to the council, the Commission may –

(i) refer the dispute to the council for resolution; or(ii) appoint a commissioner or, if one has been appointed, confirm the appointment of the commissioner, to resolve the dispute in terms of this Act.

(b) … .’

[9] In the present instance, it is clear from the transcript that the issue of the jurisdiction of the CCMA never arose. The Commissioner dealt with the matter as if the CCMA had jurisdiction and without the CCMA exercising its discretion in terms section 147(3)(a)(ii) of the LRA. Food Lovers contends that, in the absence of a clear exercise of the choice in terms section 147(3)(a)(ii) of the LRA, CCMA had no jurisdiction to deal with the matter. To fortify this contention, I am being referred to the decision of the Labour Appeal Court (LAC) in Nehawu obo Kgekwane v Department of Development Planning and Local Government,[6] were it was emphatically stated that:

‘Although the LRA does not set out guidelines that inform a referral in terms of either s 147(2) and (3) of the LRA, our courts have over time developed principles that may be of some guidance. The first is that forum shopping is looked upon with disdain. Thus in the context of referrals in terms of s 147(2) and (3) of the LRA, the incorrect referral must be bona fide and not an exercise in forum shopping for a “sympathetic or preferred” forum. The second principle is that where a dispute is referred to the CCMA, the matter may not proceed before the CCMA once it is discovered that the parties are parties to a bargaining council or fall within the registered scope of a bargaining council, until the options set out in s 147(2) and (3) have been exercised by the CCMA. The third principle is that once this is ascertained, it is then for the CCMA or its delegate (and not the commissioner hearing the matter when this was ascertained) to determine whether to refer the matter to the bargaining council or to appoint a commissioner to determine the dispute or if one has already been appointed, to confirm his or her appointment.’ (Emphasis added)

[10] In Qibe v Joy Global Africa (Pty) Ltd, In re: Joy Global Africa (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others,[7] confirming the dictum in Kgekwane,[8] the LAC reiterated that it is only in instances where the CCMA elects to appoint a Commissioner to arbitrate the dispute or confirm the appointment of the one already appointed in terms of subsection (2) and (3) of section 147 of the LRA that the Commissioner will be properly clothed with the jurisdiction to determine the dispute. Unfortunately, the converse is true in this matter.

[11] In SA Rugby Players Association & others v SA Rugby (Pty) Ltd & Others,[9] the LAC established the principle that the inquiry into the jurisdiction of the CCMA entails the determination whether objectively speaking, the facts which would give the CCMA jurisdiction to entertain the dispute existed. If such facts did not exist, the CCMA would have no jurisdiction irrespective of its finding to the contrary.[10]

Conclusion

[12] In all the circumstances, absent the confirmation of the Commissioner’s appointment by the CCMA in terms of section 147(3)(a)(ii) of the LRA, he obviously misconstrued his powers under the LRA and erroneously donned himself with the jurisdiction to determine the dispute. On this ground alone, the award stands to be reviewed and set aside.

[13] In the premises, I make the following order:

Order

1. The arbitration award dated 25 June 2018 under case number GA24796-17 is reviewed and set aside and substituted by the following order:

‘The CCMA has no jurisdiction to determine the dispute’.

2. There is no order as to costs.

__________________

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

[1] See: GN 643 contained in the GG no 40965 of 2017 which is dully extended in terms of GN 743 contained in GG 43496 dated 3 July 2020.

[2] Act 75 of 1997, as amended

[3] Act 66 of 1995, as amended.

[4] In terms of section 186(1)(e) of the LRA, dismissal means that 'an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.

[5] See page 20 Applicant’s bundle of documents at the CCMA.

[6] (2015) 36 ILJ 1247 (LAC); [2015] 6 BLLR 575 (LAC) at para 18

[7] [2015] 4 BLLR 415 (LAC); (2015) 36 ILJ 1283 (LAC) at paras 8 – 9.

[8] Supra n 5.

[9](2008) 29 ILJ 2218 (LAC) at para 41.

[10] See: HC Heat Exchangers (Pty) Ltd v Araujo and Others [2007] ZALC 72; [2020] 3 BLLR 280 (LC) at paras 35 to 39; Ukweza Holdings (Pty) Ltd v Nyondo and Others [2020] 6 BLLR 544 (LAC); (2020) 41 ILJ 1354 (LAC) at para 12.