Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others (JR 2006/08) [2009] ZALC 66; (2010) 31 ILJ 371 (LC) ; [2009] 12 BLLR 1214 (LC) (3 July 2009)

IN THE LABOUR COURT OF SOUTH AFRICA

(HELD AT BRAAMFONTEIN)

CASE NO: JR 2006/08

GOLD FIELDS MINING SOUTH AFRICA

(PTY) LTD (KLOOF GOLD MINE) Applicant

and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION First respondent

KEISHO N N.O. Second respondent

THE NATIONAL UNION OF MINEWORKERS Third respondent

SEHLOHO, M.N. Fourth respondent

JUDGMENT

________________________________________________________________

VAN NIEKERK J

[1] This is an application brought in terms of s 158 (1) (g) of the Labour Relations Act (the LRA) to review and set aside a certificate issued by the second respondent (the commissioner) on 8 August 2008. In addition to that relief, the applicant seeks an order substituting the certificate with an order that the dispute remains unresolved and referring the dispute to this court for adjudication.

[2] In the certificate of outcome, the commissioner categorised the dispute referred to the CCMA by the fourth respondent as one relating to “reasons unknown”, and indicated that should the dispute be pursued, it ought to be referred to the CCMA for arbitration.

[3] The facts that give rise to this application are undisputed. The applicant employed the fourth respondent until his dismissal on 13 June 2008. The applicant contends that the fourth respondent was dismissed because of his participation in what it alleges was an unprotected strike. The fourth respondent denies participating in the strike, and avers that he was absent from work on the day of the strike on account of ill health. He contends that he does not know the reason for his dismissal.

[4] On 8 July 2008, the fourth respondent referred a dispute to the CCMA, using the prescribed LRA Form 7.11. He categorised the dispute as one concerning an unfair dismissal and recorded in part B of the form and in response to the question “Why were you dismissed?”, that the reason for dismissal was unknown.

[5] A conciliation meeting was held on 29 July 2008. At the meeting, the applicant’s representative, a Mr Heathcote, advised the presiding commissioner that the dispute concerned a dismissal for participation in unprotected industrial action, and that should the dispute remain unresolved, the CCMA would not have jurisdiction to arbitrate as s 191 (5) (b)(iii) of the LRA required the dispute to be referred to this court. Heathcote handed to the commissioner documents relating to the fourth respondent’s dismissal, in which the applicant had recorded that the reason for the fourth respondent’s dismissal was his participation in unprotected strike action. The fourth respondent handed in a medical certificate for the period of the industrial action. It was then agreed that the thirty-day conciliation period be extended to provide the applicant with an opportunity to consider the certificate. On 7 August 2008, the applicant advised the CCMA that the dispute could not be resolved, and requested the commissioner to issue a

certificate of outcome to that effect. The applicant reiterated that the fourth respondent’s dismissal related to participation in an unprotected strike, and that the certificate of outcome should reflect that the dispute ought to be referred to this court for adjudication if the fourth respondent wished to pursue his unfair dismissal claim.

[6] On 8 August 2008, the commissioner issued a certificate of outcome. The certificate records that the dispute was referred for conciliation on 7 July 2008, that the dispute concerned an unfair dismissal relating to “reasons unknown”, that as at 8 August 2008 the dispute remained unresolved, and that it could be referred to the CCMA for arbitration.

[7] On 21 August 2008, the applicant launched an application to vary the certificate of outcome on the grounds that it contained an obvious error. The error that the commissioner was said to have perpetrated was to have recorded a reason for dismissal that was factually incorrect. On 8 September 2008, the third respondent addressed a letter to this court stating that the matter should be referred to the court as the dismissal “was related to a protected strike” and that the commissioner had erroneously indicated that the matter related to unknown reasons and that it should be referred to arbitration.

[8] The next day, 9 September 2008, the third respondent referred the dispute to arbitration. On 8 October 2008, the third respondent filed a notice of opposition and an answering affidavit to the application to vary the certificate. At the time that the founding affidavit in these proceedings was filed, no ruling had been made in respect of that application.

[9] On 13 October 2008 the applicant’s attorneys wrote to the third respondent’s attorney, placing on record the fact that the third respondent had admitted in writing that the dispute ought to be referred to this court, and requesting that the dispute before the CCMA be withdrawn. On 14 August 2008, the third respondent’s attorney replied, denying that the fourth respondent was dismissed for participation in industrial action, and further denying that the certificate of outcome had been erroneously issued.

[10] In these proceedings, the applicant contends that all of the facts indicating the true reason for the fourth respondent’s dismissal were before the commissioner and that given the contents of the certificate of outcome, the commissioner simply ignored and did not consider what was before her i.e. she did not in fact determine the jurisdictional point raised by the applicant, or she failed to apply her mind properly to what was before her and thus did not act as a reasonable commissioner would have acted. In other words, a reasonable commissioner, so the applicant contends, would have concluded on all of the facts that the true reason for the fourth respondent’s dismissal was his participation in an unprotected strike and would have concluded further that the CCMA did not have jurisdiction to arbitrate the dispute.

The law

[11] The dispute resolution system established by the LRA places a premium on conciliation. In broad terms, all dismissal disputes must be referred to conciliation before proceeding to the stage of either arbitration or adjudication. Whether a dispute is to be arbitrated by the CCMA or adjudicated by this court depends on the reason for dismissal. However, when the reason for dismissal is itself the subject of a dispute, the LRA provides no clear guidance on how the dispute is to be resolved. Two broad approaches appear to have emerged. The first is to regard the matter as one concerning jurisdiction, and to require a conciliating commissioner to determine the dispute about the reason for dismissal at the conciliation stage. On this approach, the certificate of outcome (at least in so far as it categorises a dispute and indicates the forum to which it should be referred) represents a jurisdictional

ruling. The second approach is to attach no jurisdictional significance to the certificate of outcome, and to regard the certificate as no more than a record that on a particular date, a dispute referred to the CCMA in particular terms remained unresolved. On this approach, while a conciliating commissioner will normally indicate the nature of the dispute in the certificate of outcome, the categorisation or description of the dispute has no bearing on the future conduct of the proceedings. In particular, the forum for any subsequent proceedings initiated by a referring party is determined by what the employee alleges the dispute to be, and irrespective of the terms in which the certificate was completed.

[12] In my view, for the reasons recorded below, the LRA clearly adopts the latter approach. In other words, a certificate of outcome has no legal significance beyond a statement that the dispute referred to conciliation has been conciliated and was resolved or remained unresolved, as the case may be. In so far as the pro forma certificate makes provision for a commissioner to categorise the dispute and to indicate the means by which or the forum in which it is ultimately to be resolved, these are not functions contemplated by the Act, and they have no legal significance.

[13] Section 135 of the LRA regulates the resolution of disputes through conciliation. In broad terms, the section requires a commissioner to be appointed to attempt to resolve a dispute referred to the CCMA within a period of 30 days from the date on which the referral was received. Section 135 (5) provides:

“When conciliation has failed, or at the end of the 30-day period or any further period agreed between the parties-

the commissioner must issue a certificate stating whether or not the dispute has been resolved; (emphasis added)

the Commission must serve a copy of that certificate on each party to the dispute or the person who represented a party in the conciliation proceedings; and

the commissioner must file the original of that certificate with the Commission.”

The subsection is curiously drafted. The preamble anticipates the failure of the conciliation process and the lapse of the 30-day (or agreed further period), but not the successful resolution of the referred dispute. It seems to me that two scenarios are contemplated. The first is that a conciliation meeting is convened within the 30-day period and that the commissioner’s intervention fails to resolve the dispute. In this instance, the commissioner must issue a certificate stating that the dispute remains unresolved. The second scenario contemplates the expiry of the 30-day period (or further agreed period) with no conciliation meeting having been convened; alternatively, the expiry of the 30-day period or any agreed further period. At that point, a conciliation meeting may have been convened (or not), and the dispute would have been resolved (or not) through conciliation or by any other means. In the first instance, the obligation to issue a certificate is triggered by an event (the failure of a conciliation convened within the 30-day period); in the second instance, the obligation is triggered by the effluxion of time (the expiry of the 30-day or agreed further period).

[14] Section 135 (5), to the extent that it considers the issuing of a certificate to be mandatory, sits uncomfortably with those provisions of the Act that regulate the statutory dispute resolution process beyond the conciliation stage. In the case of disputes about unfair dismissals,1 section 191 (5) provides:

“If a council or a commissioner has certified that the dispute remains unresolved, or if 30 days have expired since the council or the Commission received the referral and the dispute remains unresolved-

(a) the council or the Commission must arbitrate the dispute at the request of the employee if:

(i) the employee has alleged that the reason for dismissal is related to the employee’s conduct or capacity, unless paragraph (b) (iii) applies…

(iii) the employee does not know the reason for dismissal..

(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;

(ii) based on the employer’s operational requirements;

(iii) the employee’s participation in a strike that does not comply with the provisions of Chapter IV; …” (emphasis added).

This wording clearly contemplates that if 30 days have elapsed from the date on which the CCMA received the referral of the dispute, the dispute may be referred to arbitration or to this court for adjudication without a certificate of outcome, or, as Freund AJ put it in Seeff Residential Properties v Mbhele NO & others (2006) 27 ILJ 1940 (LC), “… even if a certificate of outcome has not been issued, arbitration remains mandatory if 30 days have expired since the council or the commission received the referral and if the employee requires this.” (at 1946A). In this sense, the legal effect of a certificate of outcome is therefore minimal, if there is any effect at all. It is a misconception to suggest therefore, as the applicant does in these proceedings, that a party is entitled to secure, whether by way of an application to vary or an application for review, that a certificate is cast in particular terms as to the nature of the dispute or the ultimate destination of the dispute in the statutory dispute resolution scheme.

[15] The wording of s 191(5) also contemplates that it is not for the conciliating commissioner to interrogate the nature of the dispute as it appears on the referral form or make any ruling as to the forum to which an unresolved dispute may ultimately be referred. An employee is entitled to refer a dispute to this court or require that a dispute be arbitrated on the basis of the reason for dismissal alleged by the employee. It is the referring party’s categorisation of the dispute (and nothing more) that triggers either the arbitration or the adjudication of the dispute. To the extent that it can be said that an arbitrator or this

court assumes jurisdiction upon the referral of a matter, the Labour Appeal Court has described this as a “provisional assumption of jurisdiction”. In Wardlaw v Supreme Mouldings (Pty) Ltd (2007) 28 ILJ 1042 (LAC), the LAC held that in relation to referrals to this court, the Act contemplated a situation where this court initially takes as correct the referring party’s allegation of the reason for dismissal, and proceeds to hear the matter. If it becomes apparent during the hearing that the reason for dismissal is in fact a reason that in terms of s 191(5) (a) required that the dispute be referred to arbitration, then the court is required to deal with the matter in terms of s 158(2) either by staying the proceedings and referring the matter to arbitration, or by sitting as arbitrator with the parties’ consent. The LAC summarised the point as follows:

“In the light of the above, it seems to us that the employee’s allegation of the reason for dismissal as contemplated by s 191 (5) is only important for the purpose of determining where the dispute should be referred after conciliation but the forum to which it is referred at that stage is not necessarily the forum that has jurisdiction to finally resolve the dispute on the merits. That may depend on whether it does not later appear that the reason for dismissal is another one other than the one alleged by the employee and is one that dictates that another forum has jurisdiction to resolve the dispute on the merits” (at para [24] of the judgment).

Although the Wardlaw decision dealt with a matter referred to this court that the employer party contended ought to have been referred to arbitration (the converse is the case in the present instance), the principle to be applied is that jurisdiction is conferred on the CCMA, on a provisional basis, by the referring party’s categorisation of the reason for dismissal. 2

[16] A recent judgment of the Constitutional Court supports this approach. In CUSA v Tao Ying Metal Industries & others [2009] 1 BLLR 1 (CC), the majority of the court (per Ngcobo J) held:

“A commissioner must, as the LRA requires, “deal with the substantial merits of the dispute”. This can only be done by ascertaining the real dispute between the parties. In deciding what the real dispute between the parties is, a commissioner is not necessarily bound by what the legal representatives say the dispute is. The labels that 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. What must be borne in mind is that there is no provision for pleadings in the arbitration process which helps to define disputes in civil litigation. Indeed, the material that a commissioner will have prior to a hearing will consist of standard forms which record the nature of the dispute and the desired outcome. The informal nature of the arbitration process permits a commissioner to determine what the real dispute between the parties is on a consideration of all the facts. The dispute between the parties may only emerge once all the evidence is in” (at para 66 of the judgment, emphasis added).

[17] There is another reason why the Act should not be interpreted to permit or require a commissioner at the conciliation phase to make a jurisdictional ruling based on the reason for dismissal that the referring party asserts. It is the referring party’s right to frame an unfair dismissal claim in any way that he or she deems fit, and it is not for the commissioner (or the employer) to decide for that party how the claim should be formulated and in which forum the relief sought is to be pursued. In National Union of Metal Workers of SA & others v Driveline Technologies (Pty) Ltd & another (2000) 21 ILJ 142 (LAC), Zondo AJP (as he then was) expressed the principle in the following way:

“A commissioner who conciliates a dispute is not called upon to adjudicate or arbitrate such dispute. He might take one or another view on certain aspects of the dispute but, for his purposes, whether the dismissal is due to operational requirements or to misconduct or incapacity, does not affect his jurisdiction. It is also not, for example, the conciliating commissioner to whom the Act gives the power to refer a dismissal dispute to the Labour Court. That right is given to the dismissed employee. (See s191 (5) (b)). If the employee, and not the conciliating commissioner, has the right to refer the dispute to the Labour Court, why then should the employee be bound by the commissioner’s description of the dispute?”

[18] In Ingo Strautmann v Silver Meadows Trading 99 (Pty) Ltd t/a Mugg and Bean Suncoast (unreported, D412/07), I recently had occasion to summarise the legal position in these terms:

“It follows that when a commissioner completes Form 7.12 and categorises the dispute referred to the CCMA by ticking one of the boxes provided, the commissioner does not make a jurisdictional ruling. Nor does the ticking of any of the boxes marked “CCMA arbitration”, “Labour Court” “None” or “Strike/Lockout” amount to a ruling on which of those courses of action must be pursued by a referring party. Consistent with the principle established in the driveline case, It is not for commissioners, by means of certificates of outcome or otherwise, to dictate to litigants either how they should frame the disputes that they might wish to pursue or which forum they are obliged to approach to have those disputes determined. Litigants must stand and fall by the claims that they bring to arbitration. They run the risk that during the arbitration proceedings, a commissioner might decide, in terms of Rule 22 of the CCMA Rules, that a referring party should be required to prove that the commission has jurisdiction to arbitrate the dispute. (This assumes, of course, that the issue giving rise to the jurisdictional point has not previously been the subject of a ruling by a commissioner, either at the commencement of the conciliation phase or at any time thereafter) if a referring party ought reasonably to have foreseen that the reason for the disputed dismissal or a reason that contributed significantly to it was such that the dispute ought to have been referred to this court, there is no reason why an order for costs should not be made in terms of Rule

39(1) of the CCMA Rules in respect of a jurisdictional ruling made against that party.”

[19] To the extent that the applicant’s case rests on the contention that the commissioner had before her a jurisdictional point that she was required in terms of CCMA rule 14 to decide or that she failed properly to decide, this application stands to be dismissed on the reasoning articulated above.

[20] In general terms, it seems to me that despite the wording of Rule 14, jurisdictional points are better determined after the hearing of evidence (and subject to the commissioner’s direction) at the arbitration phase in terms of rule 22 of the CCMA Rules. This is particularly so in regard to points such as whether the referring party was an “employee” as defined by s 213, or was “dismissed” for the purposes of s 186. In practical terms, the only jurisdictional points that appear to be relevant at the commencement of the conciliation phase are those that relate to the time limits for the referral of disputes to conciliation that the Act prescribes (where there is no application for condonation for a late referral), or whether a bargaining council has jurisdiction over the parties to the dispute (in the absence of any exercise of the discretion conferred by s 147), and perhaps whether on the face of it, the dispute referred for conciliation is not one that is contemplated by the Act, i.e. the dispute concerns a matter other than a matter of mutual interest between employer and employee. To permit other points in limine (especially those that relate to employment status and the existence of a dismissal) to be raised at the conciliation phase and to require them to be determined in terms of Rule 14 at that stage frustrates an important purpose that underlies the Act (i.e. that disputes should be resolved expeditiously with the minimum of formality) and potentially opens the door to multiple jurisdictional challenges and piecemeal applications for review.

[21] In summary: despite the initial indication that the NUM accepted that the dispute should be categorised as a dismissal for participation in a strike and that the matter should be referred to the Labour Court, the third and fourth respondents have, in their opposition to this application, clearly indicated a contrary intention. They wish the dispute concerning the third respondent’s dismissal determined on the basis that having been on sick leave on the day of the strike, he does not know the reason for dismissal. They wish their dispute to be arbitrated in the CCMA. The case brought by the third and fourth respondents must stand or fall on that basis. The certificate issued by the commissioner has no legal significance beyond stating that as at 8 August 2008, a dispute concerning the alleged unfair dismissal of the third respondent referred to the CCMA for conciliation, remained unresolved. It is common cause that to this extent, the certificate correctly states the facts. Whatever further indications the commissioner gave as to the nature of the dispute or the forum in which it should be determined, are of no legal significance or consequence.

[22] There is therefore no basis on which the commissioner’s conduct constituted a reviewable irregularity, nor is there any basis for the certificate of outcome to be reviewed and set aside. This application must accordingly fail. There is no reason why costs should not follow the result.

I make the following order:

1. The application is dismissed, with costs

ANDRE VAN NIEKERK

JUDGE OF THE LABOUR COURT

Date of hearing: 17 June 2009.

Date of judgment: 03 July 2009.

Appearances:

For the applicant: Adv L Hollander

Instructed by: Leppan Beech Inc.

For the respondent: Adv LM Malan

Instructed by: CN Phukubje Attorneys.

1 In the context of strikes and lock-outs, s 64(1) (a) (i) and (ii) impose as one of the procedural constraints on the exercise of those rights that “a certificate stating that the dispute remains unresolved has been issued…” or “a period of 30 days, or any extension of that period agreed to between the parties to the dispute, has elapsed since the referral was received by the council or the Commission:…”. If there is a dispute about the categorisation of the dispute that gives rise to the industrial action (and in particular whether the dispute is one lawfully capable of resolution by industrial action) this would normally be resolved by this court in an application to interdict the industrial action concerned.

2 There is no equivalent to s 158(2) in relation to arbitration proceedings. It seems that parties who find themselves in a position where the reason for dismissal appears to be one in respect of which the CCMA does not have jurisdiction, the arbitration proceedings ought to be stayed to permit a referral to the Labour Court. Alternatively, the parties may agree to continue with the arbitration – see s 141(1).

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