Minister of Safety and Security and Another v Govender (JS 164/03) [2010] ZALC 210; (2011) 32 ILJ 1145 (LC); [2012] 1 BLLR 55 (LC) (16 November 2010)

Minister of Safety and Security and Another v Govender (JS 164/03) [2010] ZALC 210; (2011) 32 ILJ 1145 (LC); [2012] 1 BLLR 55 (LC) (16 November 2010)

The Labour Court found that the respondent's referral of the unfair discrimination dispute to the CCMA, although late, was properly condoned and the condonation ruling stands as it was never reviewed. The referral form and supporting affidavit were sufficiently clear to indicate that the complaint related to multiple rounds of promotions. The statutory requirement for conciliation was met by the issuance of a certificate of non-resolution after the statutory period expired, and the absence of actual conciliation does not bar the dispute from proceeding. However, the respondent's claim to enforce the Employment Equity Plan is not competent for an individual employee unless the compliance...

Citation
[2010] ZALC 210
Parties
Applicant: Minister of Safety and Security; Applicant: South African Police Services; Respondent: Kasaval Govender
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
16 November 2010
Case Number
JS 164/03
Procedural Posture
Special Plea Application / Interlocutory Application on Jurisdiction and Referral Process
Outcome
The special pleas relating to jurisdiction and referral process are dismissed except for the claim relating to unfair labour practice concerning promotion, which cannot be adjudicated by the Labour Court.
Judges
Lagrange
Legal Topics
Employment Equity Act, Unfair Discrimination, Promotion Disputes, Jurisdiction, Condonation, Conciliation Requirements
Labour Law Civil Procedure Employment Equity Act Unfair Discrimination Promotion Disputes Jurisdiction Condonation Conciliation Requirements

Case Brief

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Parties

Minister of Safety and Security

Applicant

South African Police Services

Applicant

Kasaval Govender

Respondent

Procedural Posture

Special Plea Application / Interlocutory Application on Jurisdiction and Referral Process

Legal Issues

  1. 1 Whether the Labour Court has jurisdiction to adjudicate the respondent's unfair discrimination claim under the Employment Equity Act.
  2. 2 Whether the referral of the dispute to the CCMA was timeous and properly condoned.
  3. 3 Whether the respondent complied with the statutory conciliation requirements before approaching the Labour Court.

Ratio Decidendi

The Labour Court found that the respondent's referral of the unfair discrimination dispute to the CCMA, although late, was properly condoned and the condonation ruling stands as it was never reviewed. The referral form and supporting affidavit were sufficiently clear to indicate that the complaint related to multiple rounds of promotions. The statutory requirement for conciliation was met by the issuance of a certificate of non-resolution after the statutory period expired, and the absence of actual conciliation does not bar the dispute from proceeding. However, the respondent's claim to enforce the Employment Equity Plan is not competent for an individual employee unless the compliance...

Court Disposition

The special pleas relating to jurisdiction and referral process are dismissed except for the claim relating to unfair labour practice concerning promotion, which cannot be adjudicated by the Labour Court.

Orders

  • The respondent's unfair discrimination claim under section 6 of the Employment Equity Act may proceed to trial.
  • The claim relating to unfair labour practice concerning promotion is dismissed for lack of jurisdiction.