Harmony Gold Mining Company Limited-Kalgold Operations v Commission for Conciliation, Mediation and Arbitration and Others (JR 678/16) [2022] ZALCJHB 25 (18 January 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

case no: JR 678/16

In the matter between

HARMONY GOLD MINING COMPANY LIMITED -

KALGOLD OPERATIONS

Applicant

and

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION

First Respondent

ANNELIE BEVAN N.O

Second Respondent

NUM OBO NARRIAN, AE AND 2 OTHERS

Third Respondents

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 18 January 2022.

JUDGMENT

MAHOSI, J

Introduction

[1] The applicant brought an application in terms section 145 read with section 158(1)(g) of the Labour Relations Act[1] to review and set aside the jurisdictional ruling dated 25 February 2016, issued by the second respondent (the commissioner), under the auspices of the first respondent, the Commission for Conciliation, Mediation and Arbitration (the CCMA), under case number NWKD 3500-15.

Background

[2] The respondents became employees of the applicant in 2002 pursuant to a transfer in terms of section 197 of the LRA and, as at the time of the hearing, they were employed at the applicant’s Kalgold Operations.

[3] Following dissatisfaction with the conditions of the medical aid, the respondents referred an unfair labour practice dispute to the CCMA for conciliation on 02 October 2015. The dispute could not be resolved and a certificate of outcome was issued. The dispute was then referred to arbitration that was set down for 17 February 2016.

CCMA’s ruling

[4] At the beginning of the arbitration, the applicant challenged the CCMA’s jurisdiction on the basis that the dispute was referred out of the prescribed period. The commissioner allowed the parties to argue the point and further requested them to file written arguments. Accordingly, the parties submitted their written arguments in terms of the timelines they were given by the commissioner.

[5] Having had regard to the arguments, the commissioner ruled that the dispute was not referred out of time and that the CCMA had jurisdiction to arbitrate the dispute.

Submissions and analysis

[6] The first ground of review was that the commissioner committed a gross misconduct in that she failed to consider the full conspectus of evidence before her before making a finding that the matter constitutes a continuous, continuing or repetitive unfair labour practice. The second ground was that, in the event that this Court finds that the unfair labour practice took place, the commissioner committed an error of law in finding that the unfair labour practice was continuous. The third ground was that the commissioner exceeded her powers in that there was no application for condonation filed by NUM.

[7] NUM submitted that the applicant’s first ground is unfounded and has no merit as the commissioner correctly pointed out that there was a dispute of facts relating to the applicant’s contribution to the individual respondent’s medical. On the second ground, NUM submitted that the commissioner correctly identified the dispute with reference to the Labour Appeal Court’s decision in SABC v CCMA. Further that the unfair labour practice started in 2002 when the individual respondents were transferred to the applicant. NUM further submitted that there was no merit in the third ground as the parties made substantial oral arguments before the commissioner

and submitted written submission on jurisdiction and condonation.

Applicable law and analysis

[8] In as far as the arbitrator’s ruling constitutes a jurisdictional ruling, the test for review based on jurisdictional error is well established and has been stated in numerous cases of this Court and the Labour Appeal Court (LAC) as, that of correctness. In SA Rugby Players’ Association v SA Rugby (Pty) Ltd and Others; SA Rugby (Pty) Ltd v SARPU,[2] the LAC held as follows:

‘…The issue was simply whether, objectively speaking, the facts which would give the CCMA jurisdiction to entertain the dispute existed. If such facts did not exist, the CCMA had no jurisdiction irrespective of its finding to the contrary.’

[9] The applicant has to establish that the arbitrator’s decision was objectively wrong. In Fidelity Guards Holdings (Pty) Ltd v Epstein NO and Others,[3] the Court held as follows:

‘In my view where the power to be exercised is statutory, the answer to the question of what the jurisdictional fact(s) is (are) which must exist before such power can be exercised lies within the four corners of the statute providing for such power. Accordingly the provisions of such statute require to be considered carefully to determine what the necessary jurisdictional fact(s) is (are). In the light of this I consider it necessary to have regard to the provisions of the Act to determine what the necessary jurisdictional fact(s) is (are) which must exist in a case such as this one before it can be arbitrated or adjudicated in terms of the Act.’

[10] In casu, the commissioner recorded in his award that he had to determine whether or not the dispute referral was late and if so, whether or not to grant condonation.

[11] The dispute between the parties related to the applicant’s contribution toward the individual respondent’s medical aid benefits. NUM submitted that when the individual respondents were taken over by the applicant in 2002 in terms of section 197, their employment contracts required the applicant to contribute 100% towards their medical aid contributions. However, this was not done by the applicant. Instead, the applicant deducted 100% medical aid contribution from their salaries, even though it contributed 50% for its other employees.

[12] NUM submitted that they only became aware of the aforementioned disparity in January 2015 when there was a system error that was caused by the implementation of a microdump on the applicant’s payroll system. The system error resulted in the individual respondents receiving an incorrect package. The respondents were advised of the error and informed that they could not get an additional 50% contribution of their medical aid as the applicant was already contributing 100% of their medical aid. They were further informed that if they wanted to join the 50/50 medical aid contributions scheme, they would have to accept the other terms and conditions of employment, which would entail a lower base salary.

[13] NUM submitted that it approached the applicant in March 2015 at plant level, where it indicated that it was not happy with the explanation in relation to the benefit in question. Its intention was to have the matter resolved amicably. When the matter was not resolved, NUM elevated the matter to Harmony Council. The Council meeting was held on 19 May 2015 after which it was resolved that the matter must revert to plant level discussion.

[14] NUM further submitted that its branch secretary wrote an email to the applicant’s Dave Thatcher on 3 July 2015 and made a telephone call during August 2015 to secure a meeting with him. Dave Thatcher allegedly requested NUM to exercise patience as he was still awaiting the response from his principals.

[15] It was NUM’s submission that it deadlocked with the applicant on 11 September 2015 and that it then referred the dispute on 14 September 2015, but not on 14 August as indicated on the referral form. When it served the referral to the applicant, the latter requested two weeks to check with their principals. Two weeks later, on 1 October 2015, NUM served the applicant with the referral form. NUM argued that the dispute was referred within the prescribed 90-day period.

[16] The applicant submitted that the individual respondents were remunerated on an all-inclusive remuneration package, which meant that its contribution to their medical aid was included in the basic salary and that 100% was deducted from their salaries. It was further submitted that their salaries were much higher than their counterparts.

[17] The applicant further submitted that to an extent that NUM became aware of the applicant’s omission to include them in the 50/50 medical aid benefits scheme in March 2015, it should have referred the dispute in June 2015. Further that as the dispute was referred on 2 October 2015, it was referred more than 90 days late, which is excessive. Furthermore, the applicant submitted that if NUM’s argument that the individual respondents were offered the exclusive remuneration package which includes 50/50 medical aid contribution in 2012, then the delay is even more excessive.

[18] Having assessed the submissions and arguments, the commissioner found that there was no need for NUM to seek condonation. The basis for her finding appears in the award as follows:

‘45 As this is a dispute that relates to the awarding [or] not of benefits, which is evident from the applicants salary slips, it seems to me that this dispute falls into the category of continuous, continuing or repetitive unfair labour practice. (see SABC v CCMA [2009] ZALAC 13, dated 18.11.2009. Waglay ADJP).

46. In this instance the unfair labour practice complained of is the fact that the respondent is not paying the applicants the 50/50 medical's contribution as agreed with the unions and as such the unfair labour practice is continuing each month when the applicants do not receive the benefit. The unfair labour practice is thus not a single act or

omission, but one which is repeated monthly.’

[19] It is apparent from the award and the record that the commissioner did not only outline the evidence in her survey of submissions and arguments, but she assessed the evidence before coming to the conclusion that the applicant’s conduct falls into the category of continuous, continuing or repetitive unfair labour practice. Therefore, the applicant’s ground that she failed to consider the full conspectus of evidence before her is unfounded and baseless.

[20] Similarly, the ground that the commissioner committed an error of law in finding that the unfair labour practice was continuous is without any merit. In CCMA v CCMA[4], the LAC stated as follows:

‘While an unfair labour practice/unfair discrimination may consist of a single act it may also be continuous, continuing or repetitive. For example where an employer selects an employee on the basis of race to be awarded a once off bonus this could possibly constitute a single act of unfair labour practice or unfair discrimination because like a dismissal the unfair labour practice commences and ends at a given time. But, where an employer decides to pay its employees who are similarly qualified with similar experience performing similar duties different wages based on race or any other arbitrary grounds then notwithstanding the fact that the employer implemented the differential on a particular date, the discrimination is continual and repetitive. The discrimination in the latter case has no end and is therefore ongoing and will only terminate when the employer stops implementing the different wages. Each time the employer pays one of its employees more than the other he is evincing continued discrimination.’

[21] In casu, to an extent that the disparity in medical aid benefit contributions continues every month, the labelling of the dispute as continuous is not inaccurate and the commissioner’s finding that there was no need for NUM to seek condonation is correct.

[22] Lastly, I agree with NUM that there was no merit in the ground that the commissioner exceeded her powers because it is clear from the record that the parties made substantial oral arguments before the commissioner and submitted written submission on jurisdiction and condonation.

[23] In light of the above, it is my view that the applicant has not established any basis upon which the Court could find that the award was reviewable. There is, therefore, no reason for this Court to interfere with her ruling.

Costs

[24] I have had regard to the issue of costs and I am of the view that the requirements of law and equity dictate that there should be no order as to costs.

[25] In the circumstances, the following order is made:

Order

1. The application to review and set aside the jurisdictional ruling dated 25 February 2016, issued by the second respondent under case number NWKD 3500-15 is dismissed.

2. There is no order as to costs.

_________________

D Mahosi

Judge of the Labour Court of South Africa

Appearances

For the applicant: Mr J. Olivier of Webber Wentzel Attorneys

For the third respondent: Advocate F. Baloyi

Instructed by:

Mohale incorporated Attorneys

[1] Act 66 of 1995, as amended.

[2] [2008] ZALAC 3; [2008] 9 BLLR 845 (LAC) at para 41.

[3] [2000] 12 BLLR 1389 (LAC) at para 7.

[4] (2010) 31 ILJ 592 (LAC)