Maas v Commission for Conciliation, Mediation and Arbitration and Others (J 3406/98) [1999] ZALC 3 (1 January 1999)

Maas v Commission for Conciliation, Mediation and Arbitration and Others (J 3406/98) [1999] ZALC 3 (1 January 1999)

The court held that, for the purposes of item 2(1)(a) of Part B of Schedule 7 of the Labour Relations Act, an applicant for employment is deemed to be an employee and is entitled to protection against unfair discrimination. The constitution of the Public Service Co-ordinating Bargaining Council restricts its scope to employees of the employer, excluding applicants for employment. Therefore, the applicant does not fall within the registered scope of the bargaining council and the dispute must be referred to the CCMA for conciliation. The CCMA's refusal to accept the dispute for conciliation was not justified and must be set aside. The CCMA is directed to conciliate the dispute as referred...

Citation
[1999] ZALC 3
Parties
Applicant: Sybilla Hilzinger Maas; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Kaizer Thibedi (Senior Commissioner); Respondent: The Premier of the Mpumalanga Provincial Government
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
1 January 1999
Case Number
J 3406/98
Procedural Posture
Review Application / Judgment
Outcome
Application granted; CCMA's decision set aside and CCMA directed to conciliate the dispute.
Judges
Basson
Legal Topics
Residual Unfair Labour Practice, Unfair Discrimination, Jurisdiction of Ccma, Conciliation Procedure
Labour Law Civil Procedure Residual Unfair Labour Practice Unfair Discrimination Jurisdiction of Ccma Conciliation Procedure

Case Brief

Summary, issues, holding and outcome

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Parties

Sybilla Hilzinger Maas

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Kaizer Thibedi (Senior Commissioner)

Respondent

The Premier of the Mpumalanga Provincial Government

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the CCMA had jurisdiction to conciliate a dispute involving an applicant for employment alleging unfair discrimination.
  2. 2 Whether the applicant, not yet employed, falls within the scope of the relevant bargaining council.
  3. 3 Whether the CCMA's refusal to conciliate the dispute was lawful.

Ratio Decidendi

The court held that, for the purposes of item 2(1)(a) of Part B of Schedule 7 of the Labour Relations Act, an applicant for employment is deemed to be an employee and is entitled to protection against unfair discrimination. The constitution of the Public Service Co-ordinating Bargaining Council restricts its scope to employees of the employer, excluding applicants for employment. Therefore, the applicant does not fall within the registered scope of the bargaining council and the dispute must be referred to the CCMA for conciliation. The CCMA's refusal to accept the dispute for conciliation was not justified and must be set aside. The CCMA is directed to conciliate the dispute as referred...

Court Disposition

Application granted; CCMA's decision set aside and CCMA directed to conciliate the dispute.

Orders

  • The decision of the first and second respondents dated 27 August 1998 that the first respondent did not have jurisdiction to conciliate the dispute referred to the first respondent by the applicant under Case No. MP7756 is reviewed and set aside.
  • The first respondent is directed to conciliate the dispute referred to it by the applicant under Case No. MP7756.