Naude v MEC for the Department of Health and Social Services, Mpumalanga Province (JS 331/04) [2007] ZALC 97; [2008] 4 BLLR 312 (LC); (2008) 29 ILJ 1540 (LC) (21 December 2007)

Naude v MEC for the Department of Health and Social Services, Mpumalanga Province (JS 331/04) [2007] ZALC 97; [2008] 4 BLLR 312 (LC); (2008) 29 ILJ 1540 (LC) (21 December 2007)

The court found that the Public Health and Welfare Sectoral Bargaining Council lacked jurisdiction to arbitrate the applicant's claim of automatically unfair dismissal, as only the Labour Court is empowered to adjudicate such disputes unless written consent is given for arbitration by the CCMA, which was not present. The arbitration was set down without referral by the applicant, and the award was issued by a forum without jurisdiction, rendering it a nullity. Consequently, the applicant was not required to rescind or review the award before approaching the Labour Court. The dispute was not resolved by the arbitration award, and the respondent's reliance on res judicata was misplaced. The...

Citation
[2007] ZALC 97
Parties
Applicant: Dr Malcolm Naude; Respondent: MEC for the Department of Health and Social Services, Mpumalanga Province
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
21 December 2007
Case Number
JS 331/04
Procedural Posture
Declaratory Application / Application for Declarator Under Section 158(1)(a) of the Labour Relations Act
Outcome
The dispute was not resolved by the arbitration award; the respondent is ordered to pay costs, and the matter is to be enrolled for trial if not settled by 31 January 2008.
Judges
Cele AJ
Legal Topics
Automatically Unfair Dismissal, Jurisdiction of Bargaining Council, Res Judicata, Conciliation and Arbitration, Condonation, Costs Order
Labour Law Automatically Unfair Dismissal Jurisdiction of Bargaining Council Res Judicata Conciliation and Arbitration Condonation Costs Order

Case Brief

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Parties

Dr Malcolm Naude

Applicant

MEC for the Department of Health and Social Services, Mpumalanga Province

Respondent

Procedural Posture

Declaratory Application / Application for Declarator Under Section 158(1)(a) of the Labour Relations Act

Legal Issues

  1. 1 Whether the dispute between the parties was resolved by the arbitration award issued by the Public Health and Welfare Sectoral Bargaining Council on 20 April 2004.
  2. 2 Whether the Bargaining Council had jurisdiction to arbitrate the dispute regarding automatically unfair dismissal.
  3. 3 Whether the applicant was required to rescind or review the arbitration award before approaching the Labour Court.

Ratio Decidendi

The court found that the Public Health and Welfare Sectoral Bargaining Council lacked jurisdiction to arbitrate the applicant's claim of automatically unfair dismissal, as only the Labour Court is empowered to adjudicate such disputes unless written consent is given for arbitration by the CCMA, which was not present. The arbitration was set down without referral by the applicant, and the award was issued by a forum without jurisdiction, rendering it a nullity. Consequently, the applicant was not required to rescind or review the award before approaching the Labour Court. The dispute was not resolved by the arbitration award, and the respondent's reliance on res judicata was misplaced. The...

Court Disposition

The dispute was not resolved by the arbitration award; the respondent is ordered to pay costs, and the matter is to be enrolled for trial if not settled by 31 January 2008.

Orders

  • The dispute in this matter was not resolved in consequence of the issue of the award or ruling by the PHWSBC.
  • The respondent is ordered to pay costs of this application.