Mkokeli v Bloemberg (JS 522/19) [2021] ZALCJHB 47; (2021) 42 ILJ 1224 (LC); [2021] 6 BLLR 611 (LC) (25 March 2021)

The Labour Court of South Africa, JOHANNESBURG

Reportable

case no: JS 522/19

In the matter between:

MNCEDI

SAMUEL MKOKELI

Applicant

and

BLOEMBERG

L P

Respondent

Heard: 16 - 19 March 2021

Delivered: 25 March 2021

Summary: Automatically unfair dismissal – allegation that the employee was dismissed for the reason that he took action against the employer by lodging a grievance and referring an unfair labour practice claim. Section 187 (1) (d) requires the action to be in the exercise of any right conferred by the LRA. Lodging a grievance is not an exercise of a right conferred by the LRA. Referring a dispute alleging an unfair labour practice amounts to exercising of the right conferred by section 191 (1) (a) of the LRA. On the evidence presented the proximate reason of the dismissal is related to misconduct. In terms of section 191 (5) (a) (i) a dismissal for reasons related to an employee’s conduct must be arbitrated. Section 157 (5) of the LRA specifically provides that the Labour Court does not have jurisdiction to adjudicate an unresolved dispute if the LRA requires the dispute to be resolved through arbitration.

The provisions of section 158 (2) are reserved for situations where it was not apparent at the time of referral that the dispute ought to have been referred to arbitration. Where an employee pleads alternative claims, such an employee must be aware that the Labour Court does not have jurisdiction and it is precluded to exercise jurisdiction in terms of section 157 (5) of the LRA. Since the reason for the dismissal is related to the employee’s conduct, in terms of section 191 (5) (1) (a) of the LRA, such a dispute must be arbitrated at the request of an employee. The section caters for one instance. It seeks to codify the position contemplated in section 6 of the Arbitration Act, in which instance the Labour Court does not loose jurisdiction and it can stay the proceedings for later adjudication and refer the dispute for arbitration. Section 158 (2) (b) is there not to confer jurisdiction upon the Labour Court even in instances where the LRA oust the jurisdictional power of the Labour Court.

It is there only for expediency in almost similar situations contemplated in section 6 of the Arbitration Act. As a matter of law

the Labour Court cannot continue with the proceedings where the law does not afford it jurisdiction. Held: (1) The dismissal of Mkokeli is not automatically unfair. (2) The alternative claim of unfair dismissal for reasons related to misconduct is dismissed for want of jurisdiction. (5) There is no order as to costs.

Judgment

MOSHOANA, J

Introduction

[1] A proper description of this dispute is as follows. Mncedi Samuel Mkokeli (Mkokeli) was dismissed for reasons related to conduct. However, Mkokeli chose to allege a proscribed reason for his dismissal. As it shall become apparent later in this judgment, this description of the dispute is key for reasons related to the exercise of jurisdictional power. This dispute came before Court by way of a referral in terms of rule 6 of the Labour Court Rules. Due to the travel restrictions imposed because of the Covid-19 pandemic, the entire trial was conducted virtually. Most, if not all, the witnesses of the respondent are in outlying places and could not travel to the Labour Court for a physical hearing. On the eve of the trial, Mkokeli sought to amend the statement of case in order to insert as an action he took the referral of a dispute alleging an unfair labour practice. The Respondent, Bloomberg L P (Pty) Ltd (Bloomberg) objected to the proposed amendment. After delivering an ex tempore judgment, this Court made an order allowing the proposed amendment.

Background facts and evidence.

[2] Mkokeli was employed by Bloomberg as a Senior Reporter. Bloomberg is an external company registered as such in South Africa. It forms part of the Bloomberg group of companies and is a global provider of business and market news, data, analysis, and video, featuring stories from BusinessWeek and Bloomberg News. It has newsrooms throughout the world, including in Johannesburg. Mkokeli was employed effective 20 June 2016. He was dismissed on 1 March 2019 after a disciplinary enquiry into allegations of misconduct. Prior to his dismissal, in September 2018, Mkokeli lodged an internal grievance against his managers. After an investigation of

the grievance, on 22 October 2018, a finding was made in respect of the grievance. On 3 December 2018, allegations of misconduct relating to the breach of Bloomberg’s social media policy were placed before Mkokeli. After affording him an audi alteram partem, on 14 December 2018, Mkokeli received a written warning as a sanction for his alleged eccentric behaviour.

[3] Yet again, Mkokeli allegedly breached the social media policy on 10 December 2018. He was disciplined for this conduct and was issued with a final written warning on 24 December 2018. Aggrieved by the warnings, Mkokeli referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) alleging an unfair labour practice. On 15 October 2019, an arbitration award was issued dismissing Mkokeli’s claim for an unfair labour practice. The arbitration award is a subject of a review application pending in this Court.

[4] Prior to the issuance of the impugned arbitration award, on 21 January 2019, Mkokeli was hauled before a disciplinary enquiry to answer to three allegations of misconduct. At the disciplinary hearing which spanned two days, Mkokeli was found guilty as charged. As an aftermath, on 1 March 2019, Mkokeli was dismissed. On 5 March 2019, Mkokeli referred an unfair dismissal dispute to the CCMA and alleged that his dismissal was procedurally unfair in that the chairperson was not impartial and that it was also substantively unfair because Bloomberg dismissed him for no reason. On 28 March 2019, a certificate was issued certifying that the dismissal for unknown reasons remained unresolved. The conciliating commissioner directed that the dispute be resolved through arbitration within the contemplation of section 191 (5) (a) (iii) of the Labour Relations Act[1] (LRA).

[5] For some unknown reasons, instead of proceeding to arbitration, Mkokeli chose to refer a dispute for adjudication and alleged that his dismissal is related to the grievance he lodged against Bloomberg relating to the lack of diversity and discrimination of black people within Bloomberg. For that reason, he alleged that his dismissal is automatically unfair because it is linked to his grievance. In the alternative he alleged that the dismissal was both substantively and procedurally unfair. On the eve of the trial, Mkokeli amended his claim by additionally alleging that he was dismissed for taking action by referring an unfair labour practice dispute – an exercise of a right conferred by the LRA. He linked his dismissal to the exercise of the conferred right as well. As indicated earlier in this judgment, I allowed the amendment. Owing to the fact that the parties quibbled about the proximate reason for the dismissal, the following evidence was tendered before me.

Mncedi Samuel Mkokeli

[6] He testified that Bloomberg headhunted him. In the course of his employment he was promoted to a position of a Senior Reporter. In April 2018 and in a workshop he raised concerns about the employment of black employees in senior positions. A chain of emails was exchanged wherein he raised his ‘gripe’ as he preferred to label it. Ultimately the gripe was escalated to the Human Resources Department, and someone in the department resolved to lodge a grievance on his behalf. Investigations were conducted which he viewed as being ‘a loose investigation’. Ultimately his gripe was not upheld by the powers that be. He was chagrined by the outcome and escalated the gripe further. Still his gripe was not accepted as being valid. Later on Bloomberg raised complaints about him flouting the social media policy and he was issued with a written warning and subsequently a final written warning.

[7] He was discomfited by the warnings and referred a dispute to the CCMA alleging an unfair labour practice. Shortly after the conciliation meeting an employee of Bloomberg indicated to him that the company intended dismissing him since he was a non-performer all of a sudden. Later on he received a charge sheet with allegations of misconduct. He was not surprised given what this employee had told him after the conciliation meeting that his dismissal was in the offing. He underwent the disciplinary hearing and the chairperson thereof indicated that Bloomberg had no case against him, but he was subjected to what he termed ‘double jeopardy’. He was found guilty and dismissed. However, he held a strong conviction that the reason for his dismissal was for him speaking out and the referral of the unfair labour practice dispute ‘broke the camel’s back’. He sought to be reinstated.

[8] During cross-examination, he confirmed that the charges that led to his dismissal say nothing about the grievance he lodged nor the CCMA referral. He confirmed that Bloomberg complained about his social media conduct long before the company could lodge a grievance on his behalf. He also confirmed that the outcome of the grievance did not recommend disciplinary steps against him. In a clarity seeking exercise, the Court directed him to the referral form and the certificate which suggested that he did not know the reason for his dismissal. In retort he testified that he knew the reason but he meant to challenge the validity of the reason. At the conciliation meeting of the alleged unfair dismissal dispute he indicated to the conciliating commissioner that the real reason for his dismissal was (a) the lodging of the grievance and (b) the referral of an unfair labour practice dispute. Having done that he fails to understand why the certificate still recorded that he did not know the reason.

[9] As a layperson he enquired about the contents of the certificate and he was advised that the matter is heading to the Labour Court. From November 2019 to November 2020, he was employed by the Department of Public Enterprises. Otherwise he contributes to the public discourse on matters of national importance by writing pieces for newspapers for no fee and in some random instances he sells stories to the media houses. However, he remained unemployed ever since. Mkokeli did not call further witnesses to be examined. His case was closed.

Mrs C Cotterill

[10] She testified whilst located at the United Kingdom in London. She is employed by Bloomberg at its London offices. She is an Employment Relations Specialist (ERS). She has been in that position for over four years. Her evidence was confined to her involvement in the grievance raised on behalf of Mkokeli. Her and another employee investigated the grievance and reached a conclusion that the grievance was baseless. She did not recommend that Mkokeli be dismissed for lodging the grievance. Her cross-examination was of no moment regard being had to the issues to be traversed by this Court.

David Merritt

[11] He was appointed to chair the disciplinary enquiry which led to the dismissal of Mkokeli. He testified with reference to his disciplinary report. On the evidence presented before him, Mkokeli was guilty as charged. He called upon the parties to provide aggravating and mitigating circumstances. Bloomberg obliged. Despite being indulged with time Mkokeli failed to provide mitigating circumstances. He viewed the misconduct as being serious enough to warrant dismissal as a sanction, hence he recommended dismissal. He disputed any suggestion that Mkokeli was targeted. He rejected a contention made during cross-examination that since the incidents involved took place in 2018, Bloomberg waited as it were for Mkokeli to take action before he was charged in 2019. He testified that the expense report was only published in early January 2019.

Leslie Paul

[12] She testified whilst located in New York City in the United States of America[2]. She investigated the allegations and drafted the charges with the assistance of local counsel as she was not familiar with the South African jurisdiction. She initiated the hearing on behalf of Bloomberg. She made the decision to initiate discipline against Mkokeli because the allegations were “pretty bad” (serious). She disputed contentions that Mkokeli was charged because he had lodged a grievance and referred a dispute to the CCMA. In fact, she was not even aware of such historical background to what she initiated against Mkokeli.

Submissions

[13] After hearing evidence, I afforded parties an opportunity to prepare for submissions, which I heard at 14h00 (South African Time) SAT on Thursday 18 March 2021. Mr Levin submitted that the lodging of the grievance falls within the provisions of section 187 (1) (d) of the LRA despite what the DBT Technologies (Pty) Ltd v Garnevska[3] stated. In support of this submission he relied on the James v Namcon Logistics (Pty) Ltd[4] decision. He conceded that if the lodgement of a grievance was the reason for the dismissal, Bloomberg would have acted swiftly and not wait for a period of six months to wield and drop the axe. Similarly, with regard to the CCMA referral, Bloomberg should have acted swiftly. He submitted that Bloomberg did not act swiftly as expected because they were trying during that period of delay to find a smokescreen that may be used to drop the axe on the errant Mkokeli. He implored the Court to find that the dismissal of Mkokeli was automatically unfair and to reinstate him. With regard to the ordinary dismissal claim he submitted that by pleading in the alternative, Mkokeli made a request for this Court to exercise powers in terms of section 158 (2) of the LRA.

[14] On the other hand, Mr Khumalo submitted that the true reason for the dismissal of Mkokeli was his misconduct and not the lodging of a grievance or an unfair labour practice dispute referral. He placed reliance on DBT Technologies as well as the SAWCU v Afrox[5] judgment. He submitted that to the extent that the Afrox judgment was doubted, same was followed in DBT Technologies which is a binding judgment on this Court. He submitted that the correctness of James is to be doubted by this Court. With regard to the request to exercise powers in section 158 (2) he submitted that there is no request made and pleading in the alternative does not amount to a request. He conceded that the DBT Technologies judgment does not elucidate what a request is other than stating that it must be made in the statement of case. Ultimately he submitted

that the claim of Mkokeli falls to be dismissed and left the issue of costs in the hands of the Court.

Evaluation

[15] This dispute is about the proximate reason for the dismissal of Mkokeli. Differently put, what was the reason for the dismissal of Mkokeli? Although, when Mkokeli referred the dispute to the CCMA, he alleged that he was dismissed for no reason, in this matter, he alleges two reasons for his dismissal. Firstly, that he was dismissed for having lodged a grievance against Bloomberg. Secondly, that he was dismissed for having exercised a right conferred to him by the LRA – by referring an unfair labour practice on 28 December 2018. In both instances, Mkokeli allege that the provisions of section 187 (1) (d) (i) were offended and such renders his dismissal to be automatically unfair. As a prelude to this judgment, I find it apposite to reverberate the sentiments expressed in Aveng[6] matter. This Court had the following to say.

[30] Determining the reason or the principal reason for a dismissal is a question of fact. As such it is a matter of either direct evidence or of inference from the primary facts established by evidence. The reason for dismissal consists of a set of facts, which operated on the mind of the employer when dismissing an employee. They are within the employer’s knowledge. The employer knows better than anyone else in the world why it dismissed an employee.

[31] When an employee positively asserts that there was a different and impermissible reason for his or her dismissal, he or she must produce some evidence supporting the positive case…

The ambit of section 187 (1) (d)

[16] Mkokeli seem to be under an impression that by lodging a grievance he was insulated from dismissal on the strength of section 187 (1) (d) of the LRA. That impression is wrong just by mere regard to the text of the section. The section provides that the dismissal is automatically unfair if the reason for the dismissal is – that the employee took action against the employer by exercising any right conferred by the LRA. Lodging a grievance is not one of the rights conferred by the LRA. The LRA confers many rights on employees but lodging an internal grievance is not one of those rights.

[17] A proper reading of the section does not suggest that any action taken against an employer is an action insulated by the section. By way of an example an employee may take action against an employer by instituting a civil claim as a result of which, the employer dismisses that employee. Such a dismissal does not fall within the ambit of the section. Key in the text of the section is the usage of the word ‘by’. The dictionary meaning of the word ‘by’ as a preposition is to indicate the means of achieving something or identifying the agent of performing an action.

[18] The word ‘by’ is used to identify the action an employee takes or intends taking. That action is to exercise any right conferred by the LRA. As indicated earlier, lodging a grievance as an agent of performing an action is not a right conferred by the LRA. In my view this issue has been authoritatively settled by the LAC in DBT Technologies. This judgment is authority for the proposition that lodging a grievance is not an exercise of a right conferred by the LRA. The judgment suggested that the only instance when a lodging of a grievance may be seen as an exercise of a right is where such an exercise is done in terms of a collective agreement. Murphy AJA stated the following:

[18] Where an employee files a grievance under a grievance procedure forming part of a collective agreement binding in terms of section 23 of the LRA, it is perhaps arguable that she exercises a right conferred (albeit indirectly) by the LRA. It does not seem that the grievance procedure applicable in this case formed part of a collective agreement. However, even if it did, such alone would not be sufficient…

[19] The judgment made it clear that in our law and practice, the right to file a grievance and to have it processed is based in contract and is derived either from any applicable grievance procedure incorporated as part of the implied terms of the individual contract of employment or from a collective agreement enforceable in terms of section 23 of the LRA. The judgment explicitly stated that the reasoning of the Labour Court in Mackay v Absa Group and another[7] was a misdirection when it stated that the purposive interpretation of the section would mean that the exercise

of a right conferred by a private agreement binding on the employer and the employee as well as participation in any proceedings provided for by such agreement was also contemplated in the section.

[20] In my judgment, the section is reserved for the exercise of any rights directly conferred by the LRA. In order to invoke the protection in the section an employee must have exercised a right conferred by the LRA. The right must be conferred by the LRA and not through the LRA. A collective agreement is nothing but a contract mainly governed by the principles of the law of contract. The only thing the LRA does is to codify the known common law position with regard to the binding effect of collective agreements. Additionally, and in recognition of the majoritarian principle it extended the binding effect to non-parties. Rights conferred in a collective agreement remain contractual rights as opposed to being statutory rights. It may well be so that those rights were made possible by using the collective agreement route contemplated in the LRA. However, the carrier of those rights is not the LRA but a collective agreement. The section implicated herein is more concerned with a statutory right and that statute is nothing else but the LRA.

[21] For reasons outlined above, I part ways with my sister Mahosi J in James v Namcon Logistics (Pty) Ltd[8] when she concluded that the complaint to the department of labour and the involvement of attorneys brings a case of James within the categories under the section. I am particularly in disagreement with this specific finding.

[105] I have made my findings above, and in my view, although the principle in DBT is clear, the facts of this matter differ. Not intending to be repetitive, the applicant lodged a grievance against the employer

when it failed to submit his injury on duty claim as contemplated in section 139 (1) of COIDA. He would later approach the department of labour and attorneys to enforce his rights. Further, he lays claim on section 188 of the LRA. To my mind, it is reasonably sensible that the applicant would mount his case as he did.

[22] My fundamental difficulty with this reasoning is that it appears to be the view of my sister that where a grievance is linked to a statutory duty – to report an accident within the contemplation of section 39 (1) of COIDA[9] - such is tantamount to an exercise of a right conferred by the LRA. In my respectful view it is not. Whether an employer complains about a failure to comply with a statutory duty, such does not morph the complaint into an exercise of a right conferred by the LRA.

[23] As it was done in TSB Sugar RSA Ltd (now RCL Food Sugar Ltd) v Dorey[10] where an employee was disciplined and/or dismissed owing to reporting an employer for a failure to adhere to a statutory duty, such may be instances covered by the Protected Disclosure Act[11]. I firmly take a view that such an instance does not fall under the section involved herein. Once there is no right conferred by the LRA and its exercise, the section cannot be invoked. With regard to subsection (1) (d) (ii) what is required is participation in any proceedings in terms of the LRA. The LRA contemplates the following proceedings; namely (a) conciliation; (b) mediation; (c) arbitration; and (d) adjudication. Grievance proceedings are not contemplated in the LRA. The only time the LRA reference the word grievances is in section 115 (3) (d) of the LRA. Such is specific to an advice and training for prevention and resolution of grievances. The other place to find reference to the term is in the definition of a strike action. I take a view that the purpose of the giving of an advice and training by the CCMA is aimed at limiting industrial strife.

[24] Section 1 (d) (iv) of the LRA states that one of the purposes of the LRA is to promote the effective resolution of labour dispute. Therefore, section 115 (3) (d) relates to this purpose which is tied with the advancement of labour peace. Accordingly, internal grievances are not contemplated in the LRA. Thus I conclude that by lodging the grievance about treatment of black employees or any other treatment for that matter, Mkokeli was not exercising a right conferred by the LRA and therefore the section cannot be invoked. This Court is unable to comprehend or appreciate the relevance of laying a section 188 claim, as mentioned by Mahosi J, in the context of a section 187 (1) (d) claim. To my reading section 188 deals with other unfair dismissals which are not automatically unfair. Such are claims where the reason for the dismissal is permissible in law, whereas claims in section 187 are not permissible in law. In terms thereof, a dismissal is for a fair reason if the reason is related to (a) conduct; (b) capacity; and (c) operational requirements.

The unfair labour practice claim referral

[25] This Court accepts that by lodging an unfair labour practice dispute, Mkokeli was exercising a right conferred by the LRA. However, the enquiry does not end there. As pointed out in DBT Technologies, exercising the right is not alone sufficient to trigger section 187 (1) (d). Of importance is the reason used to dismiss an employee[12]. There is no dispute that after the referral of an unfair labour practice dispute, Mkokeli faced three counts of misconduct. One of the complaints raised by Mkokeli in his referral of a claim for unfair dismissal was the fact the chairperson was biased. That

happens to be the chairperson who inquired into the veracity of the allegations that led to the dismissal of Mkokeli.

[26] The difficulty I have in this regard is the fact that the referral happened in December 2018 and Mkokeli was charged and dismissed four months later. The actions are far removed from each other. Logically, an employer who dismisses an employee for having taken action or intended taking one does so in order to punish, as it were, an employee for having exercised a right guaranteed in the LRA. That being the case, it seems illogical for an employer to wait for long after the exercise of the right before lynching. Logic dictates that by exercising the right an employee ignites the ire of the employer and an immediate action, as in dismissal must happen instantaneously.

[27] In a classic case of dismissal for reasons of exercising a right, such a dismissal must follow immediately after the exercise of the right otherwise if delayed it does not become the proximate cause for the dismissal. As indicated above, Mr Levin appearing for Mkokeli suggested to Mr Merritt that since the incidents that led to the dismissal of Mkokeli happened in 2018, charging him in 2019, after he had lodged a grievance and/or referred a dispute lends credence to a case mounted by Mkokeli that the true reason for his dismissal is the fact that he took actions.

[28] There is no merit in this suggestion. The expense report upon which the charges were predicated came into being in early January 2019. The fact that Mkokeli was dismissed for incidents of 2018 deals a serious blow to any argument that the dismissal happened as a result of actions that took place thereafter. The suggestion that Bloomberg somewhat waylaid Mkokeli, as it were, is preposterous in the extreme. An employer must investigate the allegations before taking disciplinary steps. Bloomberg did that and completed its investigations in early January 2019. Therefore, even if Mkokeli did not refer an unfair labour practice dispute, the inevitable results of the investigation would have been to discipline him or not.

[29] Even if it can be said that the reason advanced by Bloomberg is shambolic, one wonders why it took Bloomberg four months to conjure up a shambolic reason to dismiss, when the true reason continues to haunt it for months. Clearly an employer who seek to prevent an exercise of a right would do so with full knowledge that the exercise of the right would expose its unlawful deeds. In casu, a commissioner would later vindicate the actions of Bloomberg after the exercise of the right. By having regard to this fact, I am not suggesting that if an employee ultimately loses a claim such a referral morphs into a non-exercise of a right. The point I am seeking to buttress is that employees faced with conduct difficulties may abuse the purpose of the section by referring meritless claims so as to later link their conduct difficulties with an exercise of a right.

[30] The other difficulty is that when Mkokeli referred an unfair dismissal claim he stated in the referral forms that he was dismissed for no reason. For some unclear reasons he suggested firstly that the lodging of the grievance was the reason and almost a year and few months later he added another reason being that he referred a dispute two years ago. Based on the evidence presented before me, the proximate cause for the dismissal is the reason related to misconduct and not the referral of an unfair labour practice dispute. The test for determining the true reason for the dismissal was laid down in Afrox and it is to first determine the factual causation by asking whether the dismissal would have occurred if Mkokeli had not referred an unfair labour practice dispute. If the answer is yes, then the dismissal is not automatically unfair. If the answer is no, that does not immediately render the dismissal automatically unfair, the next issue is one of legal causation, namely whether such refusal was the main, dominant, proximate or most likely cause of the dismissal.[13]

[31] In casu, Mkokeli would have been dismissed for misconduct despite a referral of the unfair labour practice dispute. Thus on application of the Afrox test Mkokeli was not automatically unfairly dismissed. This Court does accept that five of the Constitutional Court justices[14] doubted the correctness of Afrox in respect of section 187 of the LRA. The second and third judgments penned by Majiedt J and Jafta J respectively suggests that the correct approach[15] is to determine the true reason for dismissal by having regard to the evidence placed before Court and also applying the technique

perfected in Stellenbosch Farmers’ Winery Group Ltd v Martell Et Cie[16]. Even on this suggested approach, the conclusion I reach is that the true and dominant reason for the dismissal of Mkokeli is misconduct.

[32] The conclusion this Court reaches is that Mkokeli was dismissed for misconduct and the question whether dismissal for that reason is fair or not, is a question falling outside the jurisdiction of this Court.

Section 158 (2) powers

[33] I firmly take a view that the Labour Court as a creature of statute derives its jurisdictional powers from the statute that creates it. Section 158 (2) does not confer jurisdiction upon the Labour Court. Section 191 (5) (a) (iii) provides that if the employee does not know the reason for the dismissal, the Commission must arbitrate the dispute. In his referral forms Mkokeli stated that he was dismissed for no reason. This was clearly false. He knew that he faced three charges of misconduct and the chairperson of the internal hearing established to enquire into the veracity of those charges was conflicted in his view. Section 191 (5) (b) (i) provides that an employee may refer the dispute to the Labour Court for adjudication if the employee has alleged as opposed to alleges that the reason for dismissal is automatically unfair. Nowhere in the referral forms did Mkokeli allege that his dismissal was for automatically unfair reasons. The legislature employed the term ‘alleged’ as opposed to ‘alleges’. The import thereof is, in my view, that in another forum – conciliation – a prerequisite for adjudication – the employee must have alleged that the reason for his or her dismissal. In NUMSA v Driveline Technologies (Pty) Ltd[17], the LAC concluded that a referral for a dismissal dispute encompasses all the possible reasons for the dismissal. I do not have qualms with this

principle. Of concern to me is that, it was never alleged by Mkokeli that because of the grievance or the referral of the unfair labour practice he was dismissed. On the contrary, the referral forms ticked misconduct as a reason. I take a view that as a bare minimum, an employee seeking to raise an automatically unfair dismissal must set out facts in support of that conclusion in the referral forms. Failing which, there must be credible evidence that at a conciliation meeting, the conciliating commissioner would have been informed of the proscribed reason(s).

[34] To my mind in as much as a dismissal remains a dismissal irrespective of the reasons advanced for it, it is appropriate for an employee to allege in the referral forms a reason he or she alleges supports the effected dismissal. If an employee alleges a reason that falls within the jurisdictional powers of arbitration process, then the LRA obligates that such a dismissal must be arbitrated. If an employee alleges a reason that falls within the jurisdictional powers of adjudication, then the LRA requires that such a dispute be adjudicated. There is no concrete evidence as to what was said at conciliation in order to establish whether these two reasons now alleged by Mkokeli were mentioned[18].

[35] It was only when the issue was probed by the Court that Mkokeli testified that he did mention those reasons with the conciliating commissioner. I do not accept this belated evidence to be true. If those two reasons were mentioned, I am certain that the conciliating commissioner would not have directed Mkokeli to arbitration as he did or recorded that Mkokeli was dismissed for unknown reasons, which recordal is consistent with the information contained in the referral forms. I am convinced that these reasons are an afterthought. Evidently, the one for the referral of an unfair labour practice dispute was born on the eve of the trial.

[36] In my view it has long been apparent to Mkokeli that his dispute is one justiciable at the CCMA but for some unapparent reasons he chose to refer a dispute for adjudication and labelled it an automatically unfair dismissal. In that case, the powers in section 158 (2) cannot be invoked. To my mind this section is a codification of a similar situation in section 6 of the Arbitration Act[19]. In such a situation the jurisdiction of the Court is not ousted[20]. This Court observes a similar situation in section 147 (1) of the LRA. Section 157 (5) specifically oust the jurisdiction of the Labour Court to deal with a dispute that must be resolved through arbitration in terms of the Act. Where expediency dictates otherwise

the Labour Court may continue with the proceedings. Such does not mean assuming jurisdiction where it does not exist.

[37] A perfect example for the situations contemplated in the section is where an employer and an employee concludes an agreement that

disputes regarding a dismissal based on the operational requirements of the employer must be resolved through arbitration. The Labour Court in terms of section 191 (5) (b) (ii) of the LRA has jurisdiction to adjudicate such a dispute. However, if during the proceedings it becomes apparent that the parties had agreed to an arbitration process, the Labour Court has two options, either to continue or stay the proceedings and refer the parties to arbitration in honour of their agreement. But because the Labour Court has jurisdiction nonetheless, expediency may dictate that the Court must disregard the agreement of the parties and continue with the properly referred dispute. Jurisdiction is not a matter of convenience but of law. An order made without jurisdiction is a nullity[21].

[38] In my view a party who pleads a case of unfair dismissal in the alternative, is a party who knows, by mere regard to the provisions of section 191 that the alternative case does not fall within the jurisdiction of the Labour Court. It does seem that DBT Technologies held that in order to invoke the provisions of section 158 (2) a party must make a request to that effect in a statement of case. As a Court below, I am ordinarily bound by the ratio decidendi of this judgment. In my view what is required is not a request but an apparency that a dispute ought to have been referred to arbitration. As pointed out above after apparency the next that is required is expediency. It is unclear to this Court as to whether the LAC was suggesting that expediency ought to be somewhat pleaded in the statement of case.

[39] Given the conclusion reached by the LAC in DBT Technologies I take those remarks to be made obiter dictum. In my view, where the LRA oust the jurisdiction of the Labour Court, even if a party makes a request to exercise jurisdiction such a request shall be meaningless. The remark made obiter that a request must be made in a statement of case required further elucidation.

[40] Unfortunately, such an elucidation is, with respect, bereft in the judgment. Before me, Mkokeli did not put a request, whatever that means, all he did was to present an alternative claim. I am uncertain whether such constitutes a request or not. However, in my judgment, absence of jurisdiction means exactly that. It is important to note that the wording of the section suggest that the apparency must manifest itself after the referral of the dispute and not before the referral. Such wording, in my view, contemplates a proper referral. Referring a dispute to a forum with jurisdiction constitutes a proper referral. The only instance where the Labour Court can arbitrate a dispute, as it were, is when the provisions of section 191 (6) arises. In terms thereof, a director of the CCMA is obligated to refer a dispute to the Labour Court if he or she decides, after consideration of five legislated factors. Where a matter, as it is the case herein, is not referred by the director of the CCMA, this Court lacks jurisdictional powers[22]. In my view if a mere request gains a party audience in a Court without jurisdiction, the whole scheme of the LRA, in particular section 191 will be unscrambled and be open to abuse by an astute pleader. There is a reason why the legislature chose to have certain disputes dealt with by the Commission and or bargaining council and others by the Labour Court. To disturb this arrangement by a stroke of a pen seem incongruent with the entire scheme of the LRA.

[41] As indicated above, a litigant who fashions an alternative claim does so with full knowledge that a Court is bereft of the necessary

jurisdictional powers. In such an instance, the apparency evidently manifests itself before a referral is made. In Magomola v North West Provincial Government (Office of the Premier)[23], my brother Lagrange J approached a similar situation by having regard to the pre-trial agreement. He reached a conclusion that the parties had not agreed to consent to the jurisdiction of the Labour Court and resultantly he exercised no jurisdiction at all. Unlike other Courts, like the Magistrates Court where litigants may consent to jurisdiction in accordance with the legislation that begets them, the LRA does not contain similar provisions where litigants may consent to jurisdiction where one is absent.

[42] The conclusion I reach is that the jurisdiction of the Labour Court is ousted by the provisions of section 157 (5) of the LRA. Since it was apparent from the time that a certificate of non-resolution was issued that the dispute is one that ought to be arbitrated, section 158 (2) cannot be invoked. The dispute was referred as a con-arb process but Bloomberg objected to commencement of arbitration immediately. Had Bloomberg not objected to the commencement of arbitration immediately after conciliation, Mkokeli had requested that the dispute be arbitrated. As to why Mkokeli made a volte-face it is nowhere apparent. His evidence that he was advised that the matter is headed to the Labour Court is unconvincing by all accounts.

[43] Unlike Lagrange J in Magomola I am not going to refer the dispute for arbitration. I take a view that only a Court with the necessary jurisdiction can stay the

proceedings and refer the dispute for arbitration. I do state, in passing though, that where the one party requested that arbitration

must commence immediately after certifying that the dispute remains unresolved and another party objects thereto a dispute may be enrolled for arbitration any day after the certification. In my view it would not be necessary for an employee to re-request that the dispute be arbitrated within the contemplation of section 136 (1) (b) of the LRA.

[44] It ought to be remembered that section 191 (5A) provides that the Commission must commence the arbitration after certification. As pointed out above, Mkokeli had referred the dispute for both conciliation and arbitration, with arbitration commencing immediately after conciliation.

[45] The objection of Bloomberg was for arbitration not to commence immediately. In terms of rule 17 of the Rules for the conduct of proceedings before the CCMA published on 17 March 2015, the CCMA must notify the parties in writing of a con-arb hearing. If the arbitration does not proceed on the date specified, the Commission is obligated to schedule the matter for arbitration by notifying the parties to the dispute in terms of rule 21.

[46] For all the above reasons, the following order is made:

Order

1. The dismissal of Mkokeli is not automatically unfair.

2. The claim for substantively and procedurally unfair dismissal is dismissed for want of jurisdiction.

3. There is no order as to costs.

_______

GN Moshoana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant : Mr C Levin and Mr C Chiappini of Clifford Levine

Incorporated, Norwood.

For the Respondent : Adv S Khumalo

Instructed by

: Ms N Mather of Bowmans, Sandton.

[1] No. 66 of 1995.

[2] Given the time zone differences, her testimony was delivered late in the afternoon, which was early morning in New York.

[3] [2020] 9 BLLR 881 (LAC).

[4] (2020) 41 ILJ 2845 (LC).

[5] (1999) 20 ILJ 1718 (LAC)

[6] Ibid fn 16 below.

[7] [1999] 12 BLLR 1317 (LC)

[8] (2020) 41 ILJ 2845 (LC).

[9] Act 130 of 1993.

[10] (2019) 40 ILJ 1224 (LAC)

[11] No. 26 of 2000.

[12] See:

NUMSA and others v Aveng Trident Steel and another (2021) 42 ILJ 67 (CC)

[13]

NUMSA and others v Aveng Trident Steel and another (2019) 40 ILJ 2024 (LAC) at Para 68

[14]

NUMSA and others v Aveng Trident Steel and another 2012 (2) BCLR 168 (CC).

[15] The approach adopted by the Labour Court in NUMSA and others v Aveng Trident Steel and another (2019) 39 ILJ 1625 (LC).

[16] 2003 (1) SA 11 (SCA).

[17] 2000 (4) SA 645 (LAC)

[18] See: September and others v CMI Business Enterprise CC [2018] 5 BLLR 431 (CC)

[19] No. 42 of 1965.

[20] See: Mmethi v DNM Investments CC t/a Bloemfontein Celtics FC (2011) 32 ILJ 659 (LC).

[21] See: Eskom v Marshall and Others (2002) 23 ILJ 2251 (LC)

[22] See: Evans v Oregon Short R. R Co [1915] 51 Mont 107 and Bon Accord Environment Forum v Department of Mineral Resources: Chief Inspector of Mines and others (case J2688/18) dated 13 January 2021.

[23] Case (JS827/10) dated 10 April 2013