Moqhaka Local Municipality v South African Local Government Bargaining Council and Others (JR567/2013) [2015] ZALCJHB 305 (16 September 2015)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR 567/2013

In the matter between:

MOQHAKA LOCAL MUNICIPALITY Applicant and SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL MAPUTLE MOHLALA NO SAMUEL BUTIKI KULA First Respondent Second Respondent Third Respondent

Delivered: 16 September 2015

TLHOTLHALEMAJE, AJ

Introduction:

[1] The Applicant approached the Court in terms of section 145 of the Labour Relations Act[1] (the LRA) to seek an order reviewing, correcting or setting aside the arbitration award issued by the Second Respondent (Arbitrator) on 8 February 2013 under case number FSD101208. In his award, the Arbitrator found that the termination of the Third Respondent’s (Kula) fixed term contract of employment by the Applicant was unfair, and had ordered that Kula be paid the remainder of his fixed term contract in the amount of R2 338 587.60. The review application is opposed.

Background:

[2] Kula was employed by the Applicant with effect from 13 September 2010 in the position of Human Resources Manager in terms of a fixed term contract that was to end on 31 December 2012. On 11 October 2011, Kula had approached the Applicant’s Municipal Manager, Mqwathi, and advised him that there was an error in his fixed term contract of employment on the basis that firstly, the duration of that contract was linked to the term of office of the Municipal Council as was the case with other so-called section 57 managers, and secondly that the duration of his contract of employment was not consistent with that of the other managers such as the SCM Manager, and Manager: Electricity (Acting Manager: Technical Services) which were for five years.

[3] Based on what Kula had informed Mqwathi, the latter had requested Kula to prepare a memorandum setting out the alleged error to be addressed to the then Director: Corporate Services, Nhlapo, so that it could be corrected. Kula prepared the memorandum addressed to Nhlapo, which Mqwathi then signed on 11 October 2011.

[4] On 11 October 2011, Kula presented Mqwathi with a second contract of employment containing a changed duration of the contract. Thus his employment contract was now from 13 September 2010 to 30 September 2015, regardless of the date of signing of the contract.

[5] On 8 November 2011, IMATU complained about the extension of Kula’s fixed term contract, pointing out that the extension was null and void and resulted in the avoidance of recruitment processes requiring advertising and selection. IMATU disputed that there was an error in the initial contract which was fixed for two years. On 10 November 2011, Mqwathi responded to IMATU, stating that the HR Manager position had never been in the organogram. Any suggestions of irregularity was thus repudiated.

[6] In February 2012, the Applicant’s employees led by SAMWU embarked on an unprotected strike and inter alia, protested against the extension of Kula’s fixed term contract and demanded his dismissal. Similar strike action took place on 20 August 2013, with the employees demanding that Kula should leave the Applicant’s employ. The demands were also accompanied by threats to remove Kula physically if the Applicant did not accede.

[7] In the light of the threats, Mqwathi then placed Kula on special leave from 20 August 2012. Whilst Kula was on special leave, Mqwathi sought legal opinion on the second contract of employment. Having obtained legal advice, Mqwathi then addressed a letter to Kula on 2 October 2012, advising him that he had misled him into believing that the initial contract of employment was erroneous; that his signature on the contracts was procured through fraudulent misrepresentation, and further that the only applicable and valid contract of employment was the initial one which provided for the duration of his contract of employment to be commencing from 13 September 2010 to 31 December 2012. Kula was further advised in the letter of investigations into possible disciplinary action against him for fraud and neglect or dereliction of duties.

[8] Kula responded by referring an alleged unfair dismissal dispute to the First Respondent (SALGBC) on 5 October 2012. Attempts at conciliation failed and a certificate of outcome was issued on 16 November 2012.

[9] On 10 December 2012, the Applicant’s Municipal Manager sent correspondence to Kula, notifying him of the termination of his employment contract with effect from 31 December 2012. The dispute was arbitrated on 4 February 2013, resulting in the award that is the subject matter of this review application.

The arbitration proceedings:

[10] The dispute to be determined as captured by the Arbitrator was whether the fixed term contract of employment entered into between

the parties extending the period of engagement to 31 December 2015 was valid or not. It is apparent that the date of 31 December 2015 as referred to by the Arbitrator is incorrect, as the extension was until 31 September 2015. However, no oral evidence was led at the arbitration proceedings, with the parties electing to merely make oral submissions, and placing documents relied upon before the Arbitrator.

The oral submissions before the arbitrator:

[11] The Arbitrator had summarised the submissions made on behalf of the Applicant by its representative B Van Wyk, who was also its Labour Relations Practitioner as follows;

11.1 The second contract was considered as null and void as it did not make any reference to the first contract in as far as any rectification therein was concerned, and was also entered into in error. To that end, there were two contracts in operation simultaneously, with no indication that the first contract was revoked or not.

11.2 It took Kula until October 2011 to realise the alleged error in his initial contract, and he had then advised Mqwathi on how the error in the first contract was to be dealt with, and had accordingly misled Mqwathi into entering into the second contract without cancelling the first one.

11.3 The extension of the contract took place at the time when amendments were being made to section 66 (b) (3) and (4) of the Municipal Systems Act which provided that no person may be employed in a Municipality unless the post was provided in the staff establishment of that Municipality.

11.4 The second contract was not enforceable as it violated public policy, was illegal and violated an Act of Parliament.

[12] Kula had represented himself at the arbitration proceedings and his submissions were as follows;

12.1 His contract of employment was prematurely terminated on 2 October 2012 without a fair reason or procedure. He was offered employment by the Applicant which he had hoped would be permanent but after discussions with Mqwathi, the latter had advised him against it in the light of the Council’s view that his contract should be for a fixed term.

12.2 He had reluctantly agreed to the initial terms of the contract and further in view of the forthcoming 2011 municipal elections. The issue of restricting employment contracts to be in line with local government or inauguration of the new Council was only applicable to the position of Municipal Manager and other section 56 (or 57) managers and not to every fixed term contract.

12.3 Mqwathi and Van Wyk had conceded that there was an error with his initial contract as he had pointed out to them. He denied having misled Mqwathi as the matter was discussed with him. He further denied having procured the signature of Mqwathi through fraudulent misrepresentation, and contended that his contract of 11 October 2011 was never linked to the Municipal Council’s term of office in that the previous Municipality Council’s term ended on 18 May 2011, whereas his contract of employment was only to expire on 31 December 2012.

12.4 There was a negative strategy to get rid of him, and this was evident from meetings held with SATAWU following the strike action by employees in August 2012, and IMATU also raising concerns about his appointment. Politicians got involved in the matter as they were concerned with his appointment. SAMWU had also demanded that he should be excluded from the Labour Forum and he was subsequently marginalised.

12.5 His position has been in the staff establishment for two years and section 66 of the Municipal Systems Amendment Act took away the authority of the Municipal Managers to approve staff establishments. This Act however had no relevance to his case as his contract preceded the amendments.

12.6 He had not signed a new contract of employment, but his only fixed term contract of employment was amended with the extension of the period at of engagement. In accordance with common law his contract could not be terminated unless there was material breach or repudiation of that contract.

12.7 He implored the Arbitrator to find that there was an unfair dismissal in that his fixed term contract of employment was terminated without a fair reason and fair procedure. He sought the equivalent of 12 months’ salary and the balance of his fixed term contract of employment based on his current package plus escalations as per the current SALGBC salary and wage collective agreement that commenced from 1 July 2012 ending 30 June 2015.

The award:

[13] The Arbitrator first dealt with the issue of whether Kula had fraudulently misrepresented anything to the Municipal Manager

resulting in the signing of the second contract or insertion of an amendment into the first contract. The Arbitrator’s conclusion

was that the Municipality failed to show why it did not charge Kula for misconduct in the light of the serious dishonest offence, and there was no merit in the allegation that there was fraudulent misrepresentation.

[14] The Arbitrator also made a finding that Mqwathi had knowledge of the Municipal Systems Act of 2000 even after the amendments, and it had been conceded that the period of the initial contract was erroneous. The Arbitrator rejected any submissions or arguments that Kula had fraudulently misrepresented anything to Mqwathi, or that the second contract was in violation of public policy, or that it was unenforceable.

[15] In regards to whether the second contract of employment or the amendment was in contravention of the Municipal Systems Act as amended, the Arbitrator found that Kula’s post was provided in the establishment as a result, section 66 (3) of the MSA was not contravened when the second contract was entered into.

[16] The Arbitrator further found that the difference between the two contracts was the end date and therefore the second contract was not a new contract but was an amendment of the original contract, and accordingly, there was only one contract of employment. The Arbitrator relied on common law and concluded that the Applicant had terminated the fixed term contract of employment on the extended period of engagement, and had also failed to show that Kula had breached his contract or committed a serious offence warranting the termination. To the extent that only an allegation was made that Kula had fraudulently misrepresented to Mqwathi and further since no disciplinary action was taken against him, the Arbitrator concluded that the termination of the fixed term contract was premature and unfair.

The review test:

[17] The applicable test in review applications is whether the decision reached by the commissioner is one that a reasonable decision-maker

could not have reached in relation to the material placed before him or her[2]. Furthermore, the enquiry the reviewing court should embark upon is whether the arbitrator gave the parties a full opportunity to state their respective cases at the hearing, identified the issue that he or she was required to arbitrate, understood the nature of the dispute and dealt with its substantive merits. To this end, the function of the reviewing court would be limited to a determination whether the arbitrator’s decision is one that could not be reached by a reasonable decision-maker on the available material[3].

The grounds of review and evaluation:

[18] There are essentially five grounds upon which it was contended that the award should be reviewed and set aside. These are that:

(a) The arbitrator should have heard oral evidence in the light of disputes of fact between the parties;

(b) The Arbitrator lacked jurisdiction to deal with the dispute as there was no proof or evidence that the employee (Kula) was dismissed;

(c) The Arbitrator misconceived the whole nature of the enquiry and lacked jurisdiction to determine the issue as he had defined it;

(d) The Arbitrator committed a gross error of law and fact by finding that the extension of the contract was valid;

(e) The compensation awarded was mathematically incorrect, in excess of the statutory maximum, unreasonable, and amounted to use of an excess of power.

[19] Having evaluated the material that was placed before the Arbitrator and the conclusions reached, and further having had regard to the submissions and arguments made in regards to the grounds of review, I am of the view that there is cause to review and set aside the award for reasons that follow below.

[20] One of the grounds of review pertains to the manner with which the parties had presented their respective cases before the Arbitrator. The Applicant’s contention was that the issues before the Arbitrator could not have been properly dealt with without the benefit of oral evidence. The Applicant had also pointed out that having heard the parties’ opening statements and the issue that was placed before him to determine, the Arbitrator should have called for oral evidence in order to do justice to the case and for the purposes of a fair trial. Submissions made on behalf of Kula were to the effect that since the existence of a dismissal was common cause, there was no indication from the record that the Arbitrator had difficulty dealing with the issues. One of the issues to be determined by the reviewing court is whether the Arbitrator gave the parties a full opportunity to state their respective cases at the hearing.

[21] Affording parties a full opportunity to state their respective cases also has the objective of appraising the Arbitrator of the full merits of the case to enable him or her to come to an informed and reasonable decision. The practice of cutting corners and presenting a case by simply making oral submissions and burdening arbitrators with bundles of documents from which they are expected to make sense and issue rational and reasonable outcomes is in some instances flawed. This is even more pertinent in cases involving alleged unfair dismissal disputes, where the question of onus is crucial, and also where material disputes of facts are either glaring or at most, should have been foreseen by the parties and the Arbitrator.

[22] The above concerns were alluded to by Murphy AJA in C Arends & Others v SALGBC & Others[4], where in regards to the facts of that particular case he stated that:

“The appellants are to some extent the authors of their own misfortune. They placed the matter before the arbitrator as if there was a simple, single issue capable of resolution with the barest minimum of factual matter. Their approach was neither prudent nor correct. When parties desire to proceed without oral evidence in the form of a special case, it is imperative that there should be a written statement of the facts agreed by the parties, akin to a pleading. Otherwise, the presiding officer may not be in a position to answer the legal question put to him. Alternatively, without such a statement, the question put is in danger of being abstract or academic. Courts of law and arbitration tribunals dealing with disputes of right exist for the settlement of concrete controversies and not to pronounce upon abstract questions or to give advice upon differing contentions about the meaning of an

agreement. Where a question of legal interpretation is submitted to an arbitrator, the parties must set out in the stated case a factual substratum which shows what has arisen and how it has arisen. The stated case must set out agreed facts, not assumptions. The purpose of the rule is to enable a case to be determined without the necessity of hearing the evidence. An oral stated case predicated upon poorly ventilated and potentially unshared assumptions as to the facts defeats the purpose of the requirements of a stated case and, as this case shows, will lead to problematic results[5].” (Citations omitted)

[23] The above is even more apposite in this case. I did not understand from the record that the parties had convened a pre-arbitration

meeting or compiled minutes in that regard. The parties had not compiled an agreed statement of facts, nor had they filed any statement of case. It is accepted that pleadings are not a requirement in arbitration proceedings. However, where the parties agree not to present oral evidence within the context of an alleged unfair dismissal dispute, and the Arbitrator for some reason acquiesce to such an approach, at the very least, it would be expected of the Arbitrator to embark on a detailed process of narrowing down the issues, and recording fully what the issues in dispute are and those that are common cause, and to properly capture and understand the nature of the dispute that is required to be determined. Amongst the objectives of narrowing down of issues is to determine whether the Arbitrator has jurisdiction to determine the dispute before him or her. Where an arbitrator fails to establish whether he or she has jurisdiction right at the commencement of the proceedings, and it turns out that in fact he or she had no jurisdiction at all to determine the dispute, the resultant award becomes a nullity.

[24] In this case, and as can be gleaned from the record, the Arbitrator had made attempts at narrowing down the issues. The issues however were common cause in regards to Kula’s date of engagement, his position, date of dismissal and the relief that he sought. No attempt was made into establishing what the facts in dispute were other than to establish that the issue before him was whether the fixed term contract was valid or not.

[25] It was apparent in this case that material disputes of fact were bound to arise given the conflicting versions of both sides. Kula had referred an alleged unfair dismissal dispute, and the onus was on him to first prove that he was indeed dismissed as required by the provisions of section 192 (1) of the LRA. If indeed there was a dismissal, the onus would have been on the Applicant to show that it was substantively and procedurally fair. When the Applicant’s representative at the arbitration proceedings raised the issue of a dismissal not being in dispute, the Arbitrator’s response was simply that ‘It is a termination. A termination of employment is a dismissal, whether we like it or not. But it is a termination of employment. It is a cessation of employment between the parties (sic)[6].

[26] It is accepted that the statutory concept of a “dismissal” is not the equivalent of a lawful cancellation of a contract of employment and that it encompasses much more[7]. The Arbitrator’s comments were clearly incorrect in that not every termination of employment is a ‘dismissal’ as defined in section 186 of the LRA, especially in the light of the onus placed on an employee to prove that indeed there was a dismissal. In certain instances there can be a unilateral termination (by way of resignation), or by mutual termination, and these do not necessarily imply a dismissal as defined. Be that as it may, it is difficult to fathom how any decision would have been made on these issues without oral evidence. Even more, there were allegations of fraudulent misrepresentation against Kula in respect of the second contract, and how this was going to be proven without oral evidence is beyond comprehension.

[27] In C Arends & Others v SALGBC & Others[8], Murphy AJA in reference to Minister of Police v Mboweni and Another[9] stated that a judge faced with a request to determine a special case where the facts are inadequately stated should decline to accede to the request. In my view, given the nature of the case before the Arbitrator, and further in the light of the glaring or potential disputes of fact after the parties had made their opening statements, the Arbitrator ought to have refused to determine the matter purely on the submissions and documents presented.

[28] It is accepted that parties should stand and fall by the manner with which they seek to present their respective cases. In the same token, section 138 (1) of the LRA places an obligation on the Arbitrator to deal with the arbitration in a manner that is considered appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the case (my emphasis) with the minimum of legal formalities. It therefore follows that it is not purely up to the parties to determine how they should present their respective cases. The Arbitrator has a final say in the matter. To this end, given the nature of the evidence and facts in dispute, it cannot be said that the parties were afforded a full opportunity to state their respective cases, and it follows that the distorting effect of this irregularity was to render the result of the outcome unreasonable.

[29] Aligned to the difficulties pointed above is the issue whether the Arbitrator had the requisite jurisdiction to determine the dispute before him. The issue raised was that the Arbitrator had no jurisdiction to arbitrate the dispute on the grounds that at the time that the dispute was referred to the SALGBC, there was no dismissal as Kula’s referral to SALGBC on 5 October 2012, was in response to the Applicant’s letter of 2 October 2012. To this end, it was contended that the referral was premature, and that since this was a jurisdictional issue, the court should have regard to it notwithstanding the fact that it was never raised at arbitration, and that on that ground alone, the award should be reviewed and set aside. Submissions made on behalf of Kula in this regard were to the effect that the referral was not premature, as the letter of 10 December 2012 confirmed the dismissal.

[30] A not so dissimilar argument came before the Labour Appeal Court in Independent Municipal And Allied Trade Union and Another v City of Johannesburg Metropolitan Municipality and Others[10], where Musi AJA held that;

“Although the lack of jurisdiction was not one of the municipality’s grounds of review, the court a quo was entitled to consider this issue mero motu. The court a quo had to be satisfied that on the objective facts, the second respondent had jurisdiction to adjudicate the matter. The second respondent had or it did not have jurisdiction, as a matter of law, to adjudicate the dispute. In CUSA v Tao Ying Metal Industries and Others, it was said that:

‘Where a point of law is apparent on the papers, but the common approach of the parties proceeds on a wrong perception of what the law is, a court is not only entitled, but is in fact also obliged mero motu, to raise the point of law and require the parties to deal therewith. Otherwise, the result would be a decision premised on an incorrect application of the law. That would infringe the principle of legality[11]. (Citations omitted)

[31] In the light of the above, I am in agreement with the Applicant’s counsel that the issue of whether the SALGBC and Arbitrator had the requisite jurisdiction can be raised even at this stage of the dispute. It would be remiss of the Court not to consider the issue of jurisdiction, in that where the Arbitrator did not have jurisdiction in the first place, the Court cannot be seen to countenance an irregularity if indeed one occurred during the conduct of proceedings.

[32] Section 190 of the LRA makes provision in respect of the ‘date of dismissal’, and states that;

“(1) The date of dismissal is the earlier of-

(a) the date on which the contract of employment terminated; or

(b) the date on which the employee left the service of the employer.

(2) Despite subsection (1)-

(a) if an employer has offered to renew on less favourable terms, or has failed to renew, a fixed-term contract of employment, the date of dismissal is the date on which the employer offered the less favourable terms or the date the employer notified the employee of the intention not to renew the contract;

(b) if the employer refused to allow an employee to resume work, the date of dismissal is the date on which the employer first refused to allow the employee to resume work;

(c) if an employer refused to reinstate or re-employ the employee, the date of dismissal is the date on which the employer first refused to reinstate or re-employ that employee.”

[33] In this case, the Arbitrator was satisfied as from the common cause facts that a dismissal had taken place on 31 December 2012.

Nevertheless, from the material that were placed before the Arbitrator it was common cause that Kula was placed on special leave

from 20 August 2012. Whilst on special leave, Mqwathi addressed a letter to him on 2 October 2012 in respect of the second contract of employment. Nowhere in that letter did Mqwathi inform him that his services had been terminated. At most, Mqwathi had advised Kula that the only contract of employment recognized was the initial one which was due to expire on 31 December 2012.

[34] Kula referred an alleged unfair dismissal dispute to the SALGBC on 4 October 2012, alleging that the dispute arose on 3 October 2012, and further summarized the facts of his dispute as follows;

“Early termination of the fixed term employment contract without a fair reason and a fair procedure. My signed fixed term contract terminates on 30 September 2015 but I have been notified that it will terminate on 31 December 2012”

[35] In his referral, he also indicated that he was placed on special leave and had accordingly referred another dispute in that regard under case number FSD 091209. A certificate of outcome was issued on 16 November 2012 in respect of alleged early termination of his contract, wherein the dispute was characterized as pertaining to unfair dismissal. In his referral for arbitration he reiterated that the dispute pertained to early termination of his fixed term contract.

[36] It was however only on 10 December 2012 that Kula was officially informed that his contract of employment was terminated with effect from 31 December 2012. Had the arbitrator taken account of these facts, he would have realized that notwithstanding the fact that the parties had informed him that there were no preliminary issues to be raised, there was indeed a jurisdictional issue to be disposed of.

[37] Whether the Arbitrator had jurisdiction or not was not dependent on the parties’ say-so. Contrary to submissions made on behalf of Kula, the fact that the Applicant failed to raise any preliminary issues and had therefore waived its rights in that regard did not imply that the Arbitrator had automatic jurisdiction. The duty was still on the Arbitrator to establish and satisfy himself that he had such jurisdiction to determine the dispute or not.

[38] It can therefore be accepted that in line with the provisions of section 190 of the LRA as stated above, as at 4 October 2012 when Kula approached the SALGBC and filed a referral, he had not been ‘dismissed’ as contemplated in section 190 of the LRA, nor had his contract been terminated. He had also not been dismissed at the time that the certificate of outcome was issued and also when he referred the dispute for arbitration on 16 November 2012. It might be so that the Arbitrator had assumed from the referral and certificate of outcome that he had jurisdiction to arbitrate the dispute. However, it is accepted in this court that a certificate of outcome has no real legal significance, and is merely an indication that the statutory obligations under section 135 (5) of the LRA have been complied with by the conciliator[12]. A certificate of outcome on its own does not confer jurisdiction to arbitrate a dispute. As can further be gleaned from section 157 (4) (b) of the LRA, a certificate issued by a commissioner or a council stating that a dispute remains unresolved is sufficient proof that an attempt has been made to resolve that dispute through conciliation.

[39] The submission made on Kula’s behalf that the letter of termination addressed to him on 10 December 2012 was confirmation of the dismissal does not really assist his case in that a dismissal cannot be said to be provisional and to be confirmed at a later stage. It is either it had taken place as a matter of fact and law or not. In this case, no dismissal had taken place on either 2 or 3 October 2012 for the purposes of a referral of the dispute.

[40] As the referral was premature, the Arbitrator lacked the requisite jurisdiction to determine the dispute. To the extent that in his award he had determined that “The termination of the Applicant’s fixed term contract of employment by the respondent was unfair’, it follows that the award cannot stand, as at the time the dispute was referred, the contract had not been terminated. The award ought to be set aside on account of it being a nullity.

[41] In the light of the above conclusions, no purpose will be served be addressing other grounds of review as raised by the Applicant. I have further had regard to the considerations of law and fairness, and I am of the view that a cost order is unwarranted in this case.

Order:

(a) The arbitration award, issued by the Second Respondent on 8 February 2013 under case number FSD101208 is reviewed and set aside.

(b) The award is substituted with an order that;

‘The First Respondent (SALGBC) did not have jurisdiction to determine the dispute as referred by the Third Respondent (Samuel Butiki Kula)’

(c) There is no order as to costs.

________________

Tlhotlhalemaje, AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

On behalf of the Applicant:

Adv. MH Marcus

Instructed by:

Lebea & Associates

On behalf of the Third Respondent: Adv. TM Ngcukaitobi

Instructed by:

Lebea Inc Attorneys

[1] Act 66 of 1995 as amended

[2] Sidumo and another v Rustenburg Platinum Mines Ltd and Others [2007] 12 BLLR 1097 (CC) at para [110]

[3] See Goldfields Mining South Africa (Pty) Ltd v CCMA (2014) 35 ILJ 943 (LAC) at para [20]. See also South African Medical Association obo Mabuza and Others v Commissioner Moletsane and Others (JR834/12) [2014] ZALCJHB 66 (14 March 2014) at para [8]

[4] [2015] 1 BLLR 23 (LAC)

[5] At para [15]

[6] Page 181 line 4-5 of the transcribed record.

[7] Edcon v Steenkamp and Others [2015 (4) SA 247 (LAC) at para [40]

[8] At para [17]

[9] 2014 (6) SA 256 (SCA)

[2014] 6 BLLR 545 (LAC)

[11] At para [26]

[12] Bombardier Transportation (Pty) Ltd) v Mtiya N.O. and Others at para [12] and at para [14] where it was held that; “In other words, a certificate of outcome is no more than a document issued by a commissioner stating that on a particular date, a dispute referred to the CCMA for conciliation remained unresolved. It does not confer jurisdiction on the CCMA to do anything that the CCMA is not empowered to do, nor does it preclude the CCMA from exercising any of its statutory powers. In short, a certificate of outcome has nothing to do with jurisdiction. If a party wishes to challenge the CCMA's jurisdiction to deal with an unfair dismissal dispute, it may do so, whether or not a certificate of outcome has been issued. Jurisdiction is not granted or afforded by a CCMA commissioner issuing a certificate of outcome. Jurisdiction either exists as a fact or it does not.”

[12] Bombardier Transportation (Pty) Ltd) v Mtiya N.O. and Others at para [12] and at para [14] where it was held that;

“In other words, a certificate of outcome is no more than a document issued by a commissioner stating that on a particular date, a dispute referred to the CCMA for conciliation remained unresolved. It does not confer jurisdiction on the CCMA to do anything that the CCMA is not empowered to do, nor does it preclude the CCMA from exercising any of its statutory powers. In short, a certificate of outcome has nothing to do with jurisdiction. If a party wishes to challenge the CCMA's jurisdiction to deal with an unfair dismissal dispute, it may do so, whether or not a certificate of outcome has been issued. Jurisdiction is not granted or afforded by a CCMA commissioner issuing a certificate of outcome. Jurisdiction either exists as a fact or it does not.”