Gauteng Film Commission v Commission for Conciliation, Mediation and Arbitration and Others (JR320/2022) [2024] ZALCJHB 229 (4 June 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR320/2022

In the matter between:

GAUTENG FILM COMMISSION Applicant

and

COMMISSION FOR CONCILIATION, First

Respondent

MEDIATION AND ARBITRATION

TIMOTHY BOYCE NO

Second Respondent

DESMOND MTHEMBU

Third Respondent

Heard: 21 May 2024.

Delivered: 4 June 2024, issued to the parties via email.

Summary: Application to review and set aside jurisdictional ruling. Review granted. Third respondent failing to refer dismissal dispute to conciliation timeously, and not seeking condonation.

JUDGMENT

DANIELS J

Introduction

[1] The applicant seeks to review and set aside an jurisdictional ruling issued under GAJB 14957-21 by the second respondent (hereafter the “commissioner”), appointed by the first respondent (hereafter “the CCMA”) to determine an unfair dismissal dispute between itself and the applicant.

[2] The applicant challenges the ruling on the basis that the CCMA had no jurisdiction to determine the dispute because the third respondent had not referred the dispute to the CCMA, for conciliation, within thirty (30) days as contemplated in section 190(2)(a) read with 191(1)(b) of the Labour Relations Act No. 66 of 1995 as amended (hereafter “the LRA”).

Background facts

[3] The applicant employed the third respondent as a senior manager in its Industry Support and Development. He was engaged on a fixed term contract for 5 years, from 5 January 2015 to 4 January 2020.

[4] On 28 November 2019, the Board of Directors (the “Board”) requested the then acting Chief Executive Officer (the “ACEO”) to prepare a memorandum for consideration by the Board re certain employees, (including the third respondent) engaged on fixed term contracts. It is unclear if, or when, the third respondent became aware of this information.

[5] The Human Resources (“HR”) manager prepared and submitted a report, recommending the extension of contracts (including that of the third respondent) to the ACEO. The ACEO did not submit the report to the Board for its consideration.

[6] On 19 December 2019, the ACEO unilaterally extended the employment contract of the third respondent for 5 years.

[7] It is also unclear whether or when the third respondent became aware that the ACEO had extended his employment contract.

[8] On 22 January 2020, the Board resolved that the conduct of the ACEO in extending the third respondent’s fixed term employment contract was irregular, among other things because the Board did not wish to appoint anyone until the “finalisation of its five year strategic plan to redesign its organisational structure”. It is unclear if, or when, this information was communicated to the third respondent.

[9] Between the expiry of his fixed term contract (5 January 2020) and 29 September 2020, the third respondent remained in the employ of the applicant. It appears that the third respondent and the applicant assumed that the fixed term contract would continue until otherwise decided. It is unclear whether any formal agreement was reached in this respect.

[10] On 29 September 2020, the Board resolved to offer the third respondent a six month employment contract. The third respondent

rejected the offer.

[11] On 23 April 2021, the applicant addressed an email to the third respondent. In the email, the third respondent was informed that because he had not signed the six months contract his employment would cease on 28 April 2021.

[12] On 31 May 2021, the applicant sent a letter to the third respondent advising him his refusal to sign the six-month employment contract amounted to a repudiation of his employment, which was accepted.

[13] On 8 June 2021, the third respondent referred a dispute about the fairness of his dismissal to the CCMA alleging that he had been dismissed on 31 May 2021.

CCMA Arbitration

[14] The CCMA was unable to schedule the matter for conciliation within the statutory 30 day period contemplated in section 191(1)(b) of the LRA. The third respondent then requested that the dispute be scheduled for arbitration. The CCMA allocated the dispute to the second respondent.

[15] The parties concluded a pre-arbitration agreement on 25 November 2021.

15.1 The parties recorded, as a fact in dispute, whether or not “the applicant had a legitimate expectation to have his contract of employment renewed.” The minute did not refer to whether the third respondent had a subjective expectation of renewal.

15.2 In the minute, in clause 1.9.1, the parties both recorded that they do not intend to lead evidence. However, in clause 1.19, the third respondent recorded that he would call 4 witnesses and the applicant would call one witness, should there be a need.

15.3 The parties agreed on a joint bundle of documents and agreed that the documents are what they purport to be. There was no agreement on the truth or veracity of the contents of the documents.

[16] The CCMA enrolled the dispute for arbitration on 28 January 2022. On that date:

16.1 The parties both appeared, legally represented, and advised the commissioner that they wished to argue the dispute on the basis of a stated case, in the absence of oral evidence.

16.2 A copy of the documentary bundle was made available to the commissioner.

16.3 The composition of the stated case is the commissioner’s handwritten notes recording several of the common cause facts. The stated case was then signed by the parties. The balance of the facts which were common cause were drawn from the pre-arbitration minute. The commissioner directed the parties to file submissions.

[17] On 8 February 2022, the commissioner handed down his jurisdictional ruling. He found that the third respondent had a reasonable expectation of renewal of his employment contract. The commissioner noted that the third respondent remained in the applicant’s employ between after the expiry of his five-year contract (January 2020) and September 2020, when he was dismissed. In line with section 190, the commissioner described the applicant’s offer of the six-month contract as the act of dismissal. However, the commissioner

failed to take into consideration that the third respondent rejected the six-month contract approximately nine months before the referral was made.

Legal principles and analysis

[18] The CCMA is not a court of law. It is an administrative body charged with the execution of statutory functions. As a creature of statute its jurisdiction is governed strictly by the four corners of the statute. In SA Rugby Players Association & others v SA Rugby (Pty) Ltd & others[1] (“SA Rugby”) the court sets out the position as follows:

[40] The CCMA is a creature of statute and is not a court of law. As a general rule, it cannot decide its own jurisdiction. It can only make a ruling for convenience. Whether it has jurisdiction or not in a particular matter is a matter to be decided by the Labour Court. In Benicon Earthworks & Mining Services (Edms) Bpk v Jacobs NO & others (1994) 15 ILJ 801 (LAC) at 804 C-D the old Labour Appeal Court considered the position in relation to the Industrial Court established in terms of the predecessor to the current Act. The court held that the validity of the proceedings before the Industrial Court is not dependent upon any finding which the Industrial Court may make with regard to jurisdictional facts but upon their objective existence. The court further held that any conclusion to which the Industrial Court arrived on the issue has no legal significance. This means that, in the context of this case, the CCMA may not grant itself jurisdiction which it does not have. Nor may it deprive itself of jurisdiction by making a wrong finding that it lacks jurisdiction which it actually has. There is, however, nothing wrong with the CCMA enquiring whether it has jurisdiction in a particular matter provided it is understood that it does so for purposes of convenience and not because its decision on such an issue is binding in law on the parties. (Own emphasis)

[19] In Bombardier Transportation (Pty) Ltd v Mtiya NO & others[2] Van Niekerk J (as he was then) stated as follows:

“13] The first step in this approach is to recognize that many 'jurisdictional issues' raised by parties in conciliation proceedings are not jurisdictional questions in the true sense. ….

The only true jurisdictional questions that are likely to arise at the conciliation phase are whether the referring party referred the dispute within the time-limit prescribed by s191(1)(b), whether the parties fall within the registered scope of a bargaining council that has jurisdiction over the parties to the dispute to the exclusion of the CCMA, and perhaps whether the dispute concerns an employment related matter at all. The distinction to be drawn is one between facts that the legislature has decided must necessarily exist for a tribunal to have the power to act (and without which the tribunal has no such power) and facts that the legislature has decided must be shown to exist by a party to proceedings before the tribunal, the existence of which may be determined by the tribunal in the course of exercising its statutory powers. The power given to the CCMA to determine the fairness of a dismissal includes the power to determine whether or not an applicant was an employee, and whether she was dismissed. These questions ordinarily fall to be determined in the course of the CCMA's adjudication functions. It follows that a conciliating commissioner is under no obligation to determine them at the conciliation phase.” (Own emphasis)

[20] To summarise, the CCMA, cannot finally determine its own jurisdiction, and its findings on jurisdictional facts are provisional, made for the sake of convenience.

[21] As explained in SA Rugby the test on review, in relation to jurisdictional challenges, is one of correctness, not reasonableness. This Court must determine whether objectively the CCMA had jurisdiction.[3] In addition, as Van Niekerk J (as he then was) explained in Bombardier, one of the “true” jurisdictional points is whether a dispute has been referred to the correct forum within the correct

time frames.

[22] With these principles in mind, I now weigh the applicant’s submissions:

22.1 As suggested by the applicant, section 190(2)(a) of the LRA is clear and requires no interpretation. The date of the dismissal is the date on which the employer offered to renew the fixed term contract, but on less favourable terms. In this matter, this occurred during September 2020, several months before the referral to conciliation.

22.2 On third respondent’s version, the Board conveyed its final decision (not to renew his employment contract) to him on 29 April 2021. Even in that scenario, the referral to conciliation was late, and therefore defective.

22.3 It is trite that parties may raise jurisdictional issues at any time, even when such issues were not raised during conciliation

or arbitration processes. This principle needs no discussion.

22.4 The applicant correctly pointed out that, where parties agree that the documents are what they purport to be, this is simply an admission that such documents are authentic. The admission does not permit the commissioner to treat such documents as evidence, in the absence of evidence relating to such documents.[4] The references to evidence in the ruling can only mean that the commissioner had regard to the documents, and treated them as evidence.

22.5 The applicant contends that the commissioner, having found that there was a dismissal, failed to give it an opportunity to prove that the dismissal was substantively fair.[5] As a result, oral evidence was not presented by either party in respect of the disputes of fact - including those in the pre-arbitration minute. It is clearly prejudicial to have deprived the applicant of an opportunity to demonstrate that the dismissal was fair.

22.6 The applicant submits that, despite the fact that both parties were legally represented, the commissioner should, nevertheless, have insisted on oral evidence because evidence was required on key issues, including whether the third respondent held a belief that his employment contract would be renewed, and such belief was reasonable. I simply cannot accept that the commissioners must intervene to the same degree where parties are represented. Legal practitioners are trained professionals, and do not require the guidance of commissioners. The role of the commissioner is not to guide and assist all who appear before them. Instead, the role of the commissioner is “to perform a balancing act as there is a thin dividing line between the management of the arbitration and getting involved in the fray.” [6]

[23] The applicant has discharged the onus. The ruling fails on many levels. However, the reasons set out in paras 22.1, 22.2 and 22.5 adequately demonstrate why the ruling is defective.

Conclusion

[24] In the circumstances, the jurisdictional ruling is reviewed and set aside, no costs.

RN Daniels

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv Wilhelm Bekker SC

Jose Da Silva Attorneys

For the Respondent: Mr Mavimbela (Attorney)

[1] (2008) 29 ILJ 2218 (LAC) at para 40

[2] (2010) 31 ILJ 2065 (LC) at para 13

[3] NUMSA obo members v MIS Engineering (Pty) Ltd t/a Mitak & others; NUMSA & others v Transvaal Galvanisers (Pty) Ltd & others; NUMSA on behalf of Nkuna & others v Imab Engineering (Pty) Ltd & others (2022) 43 ILJ 2075 (LC) at para 9

[4] Hillside Aluminium (Pty) Ltd v Mathuse & others (2016) 37 ILJ 2082 (LC) at para 59

[5] Founding affidavit at para 28.11. This allegation is not denied in the answering affidavit.

[6] Lewis Stores (Pty) Ltd v Naidoo & others (2022) 43 ILJ 1098 (LAC) at para 29