Nikani v Dawn Park Primary School and Others (JR520/21) [2024] ZALCJHB 321 (22 August 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR520/21

In the matter between:

PUMLA NIKANI Applicant and DAWN PARK PRIMARY SCHOOL First Respondent COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION Second Respondent ALUCIA SIBUYI NO Third Respondent

Heard: 14 August 2024

Delivered: 22 August 2024

Summary: Application to review and set aside jurisdictional ruling. Application dismissed.

JUDGMENT

DANIELS J

Introduction

[1] The applicant seeks to review and set aside a jurisdictional ruling by the third respondent, who found that the second respondent had no jurisdiction hear and determine the unfair dismissal dispute referred to it. The review application is unopposed by the respondents.

Material facts

[2] The applicant was employed, as a financial clerk, by a primary school, the first respondent (hereafter “the employer”).

[3] The employer used yearly employment contracts for certain staff, including the applicant. She was employed on a fixed term contract (which had previously been renewed) which was due to expire on 31 December 2018.

[4] On 31 December 2018, the applicant’s employment contract was not terminated, nor was it expressly renewed. The applicant continued to work for the employer until 20 September 2019, when she was dismissed for misconduct.

[5] At the time of her dismissal she earned eight thousand rands per month.

[6] The applicant referred a dispute concerning the fairness of her dismissal to the Commission for Conciliation, Mediation and Arbitration (hereafter “the CCMA” or “the Commission”). When conciliation failed, she requested arbitration. The employer actively opposed the matter at arbitration.

[7] Following a lengthy arbitration, the commissioner (hereafter “the first commissioner”) issued an arbitration award, on or about 12 October 2020, in which he found that the applicant’s dismissal was procedurally and substantively unfair. In the award, the first commissioner stated:

“The applicants (sic) are reinstated with effect from 21 September 2019, on the same terms and conditions that existed prior to their (sic) dismissal.”

[8] At arbitration, the parties appeared to accept that the applicant’s employment had been renewed to the end of December 2019. In the award, the first commissioner made certain important findings:

8.1 He found that the applicant could not be considered an indefinite term employee because the dispute before him had not been brought under section 198B of the Labour Relations Act No. 66 of 1995 as amended (“the LRA”).

8.2 He found that the applicant could not be reinstated under section 198B, but could only be reinstated under section 193(a);

8.3 He found that the effect of her reinstatement should not exceed the end of December 2019.

[9] Unfortunately, the applicant chose not to review the arbitration award issued by the first commissioner. Instead, on 22 October 2020, she referred a further dispute to the CCMA in which she alleged that she had a reasonable expectation of the renewal of her employment contract and had therefore been dismissed. She also applied for condonation for the late referral of the dispute.

[10] The dispute was allocated to the third respondent (hereafter the “second commissioner”) to determine whether the Commission had jurisdiction.

[11] On 22 February 2021, the second commissioner ruled that there was no decision on the part of the employer not to renew the applicant’s

employment contract. Accordingly, the second commissioner found that there was no dismissal and the CCMA had no jurisdiction. It is this ruling which is the subject of the review.

Legal principles and analysis

[12] For obvious reasons, in most instances, the onus lies on the applicant to show that the forum (to which the applicant had referred the dispute) has jurisdiction. In Malherbe v Britstown Municipality, 1949 (1) SA 281 (C) Ogilvie-Thompson AJ (as he then was) said the following:

“It is the province of the plaintiff to establish the jurisdiction of the Court into which he, as dominus litis, has brought the defendant. In this sense the onus of establishing

jurisdiction is, in my view, always on the plaintiff. But the form of defendant's plea may be such as to burden him with an onus to prove certain facts…“ (Own emphasis)

[13] In SA Rugby Players Association & others v SA Rugby (Pty) Ltd & others[1] the Court held as follows:

“[40] The CCMA is a creature of statute and is not a court of law. As a general rule, it cannot decide its own jurisdiction. It can only make a ruling for convenience. …. The court held that the validity of the proceedings before the Industrial Court is not dependent upon any finding which the Industrial Court may make with regard to jurisdictional facts but upon their objective existence. The court further held that any conclusion to which the Industrial Court arrived on the issue has no legal significance. This means that, in the context of this case, the CCMA may not grant itself jurisdiction which it does not have. Nor may it deprive itself of jurisdiction by making a wrong finding that it lacks jurisdiction which it actually has. There is, however, nothing wrong with the CCMA enquiring whether it has jurisdiction in a particular matter provided it is understood that it does so for purposes of convenience and not because its decision on such an issue is binding in law on the parties. In Benicon's case the court said at 804C-D:

'In practice, however, an Industrial Court would be short-sighted if it made no such enquiry before embarking upon its task. Just as it would be foolhardy to embark upon proceedings which are bound to be fruitless, so too would it be fainthearted to abort the proceedings because of a jurisdictional challenge which is clearly without merit.'

(Own emphasis)

[14] The CCMA is not a court of law and it does not finally determine its own jurisdiction. It does so only as a matter of convenience. In instances where jurisdiction is challenged, then, on review, the test is one of correctness and not reasonableness. The Court must determine whether, objectively speaking, the CCMA had jurisdiction.[2]

[15] In the context of an alleged unfair dismissal dispute, the jurisdictional enquiry will commence with proof of employment and dismissal. In those respects, the onus lies with the employee.

[16] The statutory meaning of dismissal, in terms of section 186(1) of the LRA, requires a termination of employment at the instance of the employer. In other words, the employer must have “engaged in an act which brings the contract of employment to an end in a manner recognised as valid by the law”.[3]

[17] The difficulty here is that the employer took no decision to terminate the employment contract following her reinstatement.

[18] Next, the concept of reinstatement must be considered. The Constitutional Court, in Equity Aviation Services (Pty) Ltd v CCMA & others[4] explained the terms “reinstate” and “reinstatement” as follows:

“The ordinary meaning of the word 'reinstate' is to put the employee back into the same job or position he or she occupied before the dismissal, on the same terms and conditions. Reinstatement is the primary statutory remedy in unfair dismissal disputes. It is aimed at placing an employee in the position he or she would have been but for the unfair dismissal. It safeguards workers' employment by restoring the employment contract. Differently put, if employees are reinstated they resume employment on the same terms and conditions that prevailed at the time of their dismissal. As the language of s 193(1)(a) indicates, the extent of retrospectivity is dependent upon the exercise of a discretion by the court or arbitrator. The only limitation in this regard is that the reinstatement cannot be fixed at a date earlier than the actual date of the dismissal.”

[19] Unfortunately, on the facts of this matter, although reinstated, the applicant could not be placed into the employment contract which had expired.

[20] In this matter, it was open to the first commissioner to reinstate the applicant on an indefinite basis, which I believe he ought to have done. Instead, the first commissioner found that the applicant could not be reinstated beyond December 2019. In effect, the commissioner found that the applicant could only be reinstated for the balance of her contract. This ruling, although misguided, should have been reviewed by the applicant.

Conclusion

[21] In the circumstances, the application is dismissed.

RN Daniels

Judge of the Labour Court of South Africa

Appearances:

For the Applicant

Adv C Grant

Instructed by GJ Brits Attorneys

For the Respondent:

No appearance

[1] (2008) 29 ILJ 2218 (LAC) at para 40

[2] NUMSA obo members v MIS Engineering (Pty) Ltd t/a Mitak & others; NUMSA & others v Transvaal Galvanisers (Pty) Ltd & others; NUMSA on behalf of Nkuna & others v Imab Engineering (Pty) Ltd & others (2022) 43 ILJ 2075 (LC) at para 9

[3] See National Union of Leatherworkers v Barnard NO and another (2001) 22 ILJ 2290 (LAC)

[4] (2008) 29 ILJ 2507 (CC)