NUPSAW obo Modise v GPSSBC and Others (JR1585/12) [2014] ZALCJHB 81 (17 March 2014)
The arbitrator's conclusion that the Bargaining Council lacked jurisdiction was irrational and unreasonable. The referral form clearly alleged an unfair labour practice relating to promotion. The Council is the proper forum to decide the merits of the claim, regardless of whether the applicant can ultimately prove...
Source-derived case information.
- Citation
- [2014] ZALCJHB 81
- Parties
- Applicant: NUPSAW obo Dineo Modise; Respondent: GPSSBC; Respondent: N Maseko N.O.; Respondent: Head of Department: Gauteng Department of Roads and Transport; Respondent: G L Dabula; Respondent: L Mdakane; Respondent: M Nkabiti; Respondent: M P Jonas; Respondent: I N Maseko; Respondent: Member of Executive Council (MEC) for the Gauteng Department of Roads and Transport
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JR1585/12
- Procedural Posture
- Review Application / Leave to Appeal and Reasons for Order
- Outcome
- The arbitration award was reviewed and set aside. The dispute is remitted to the Bargaining Council for arbitration before a different arbitrator.
- Judges
- Steenkamp
- Legal Topics
- Unfair Labour Practice, Promotion Dispute, Jurisdiction of Bargaining Council
Source-derived case record
Summary, issues, holding and outcome
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Parties
NUPSAW obo Dineo Modise
Applicant
GPSSBC
Respondent
N Maseko N.O.
Respondent
Head of Department: Gauteng Department of Roads and Transport
Respondent
G L Dabula
Respondent
L Mdakane
Respondent
M Nkabiti
Respondent
M P Jonas
Respondent
I N Maseko
Respondent
Member of Executive Council (MEC) for the Gauteng Department of Roads and Transport
Respondent
Procedural Posture
Review Application / Leave to Appeal and Reasons for Order
Legal Issues
- 1 Whether the Bargaining Council had jurisdiction to entertain the unfair labour practice dispute referred by the applicant.
- 2 Whether the arbitrator's ruling on jurisdiction was irrational and unreasonable.
- 3 Whether the dispute should be remitted for arbitration before a different arbitrator.
Ratio Decidendi
The arbitrator's conclusion that the Bargaining Council lacked jurisdiction was irrational and unreasonable. The referral form clearly alleged an unfair labour practice relating to promotion. The Council is the proper forum to decide the merits of the claim, regardless of whether the applicant can ultimately prove it. The arbitrator decided the jurisdictional point prematurely and without full consideration of the facts. Therefore, the arbitration award was reviewed and set aside, and the dispute remitted to the Bargaining Council for arbitration before a different arbitrator.
Court Disposition
The arbitration award was reviewed and set aside. The dispute is remitted to the Bargaining Council for arbitration before a different arbitrator.
Orders
- The arbitration award under case number GPBC 1941/2011 dated 10 May 2012 is reviewed and set aside.
- The dispute is remitted to the Bargaining Council (first respondent) for arbitration on the unfair labour practice dispute before an arbitrator other than the second respondent.
Full Case Text
Judgment text and source record
51 paragraphs
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR 1585/12
Not reportable
In the matter between:
NUPSAW obo DINEO MODISE Applicant
and
GPSSBC First
Respondent
N MASEKO N.O. Second
Respondent
HEAD OF DEPARTMENT: GAUTENG Third
Respondent
DEPARTMENT OF ROADS AND TRANSPORT
G L DABULA Fourth
Respondent
L MDAKANE Fifth
respondent
M NKABITI Sixth
respondent
M P JONAS Seventh
respondent
I N MASEKO Eighth
respondent
MEMBER OF EXECUTIVE COUNCIL Ninth
respondent
(MEC) FOR THE GAUTENG DEPARTMENT
OF ROADS AND TRANSPORT
Heard: 19 November 2013
Delivered: 19 November 2013
Edited: 17 March 2014
STEENKAMP J
[1] On 13 November 2013 I granted an order in the following terms:
“The arbitration award under case number GPBC 1941/2011 dated 10 May 2012 is reviewed and set aside. The dispute is remitted to the Bargaining Council, that is the first respondent, for arbitration on the unfair labour practice dispute before an arbitrator other than the second respondent.”
[2] The applicant has applied for leave to appeal and has requested reasons for the order that I debated with its attorney, Mr Ndou, on the day that the order was granted. These are the expanded and edited reasons.
[3] The application arises from an award made by the arbitrator in which he held that the Bargaining Council had no jurisdiction to entertain the dispute referred by the applicant. It is that award that the applicant sought to have reviewed and set aside.
[4] The applicant referred the dispute to the Bargaining Council as an alleged unfair labour practice in terms of s 186(2)(a) of the LRA. It relates to the appointment of employees other than Ms Modise, the applicant who is represented by her trade union, NUPSAW, and Mr Ndou.
[5] The Department[1] raised a preliminary point that the Council did not have jurisdiction as the real issue was one of alleged discrimination, and not an unfair labour practice.
[6] The arbitrator had to rule on that preliminary point. He noted that the applicant’s attorney had argued that the Department had appointed employees on fixed term contracts in “fictitious” positions that could have been filled by the applicant. The applicant alleged an unfair labour practice relating to promotion.
[7] The arbitrator concluded that “the dispute is not necessarily about the alleged unfair labour practice. Resultantly [sic], the Council must be found to be lacking jurisdiction to entertain this matter.”
[8] This conclusion by the arbitrator was irrational and unreasonable. The referral form clearly alleged an unfair labour practice. As Nugent JA pointed out in Makhanya v University of Zululand[2], a claim is a matter of fact. If the applicant claims that her non-appointment is an unfair labour practice, then that is her claim,
as a matter of fact. That it may be a bad claim, is a different matter. That is something that the Bargaining Council, and not this Court, must decide. But the Council has the jurisdiction to decide the unfair labour practice claim that the applicant referred to it, whether or not the applicant can prove the claim.
[9] I came to the conclusion that the Bargaining Council does have jurisdiction to hear the unfair labour practice dispute. That is the proper forum to decide the merits with the benefit of evidence and argument. This application was heard on an unopposed basis. This Court is not in a position to decide on the further relief sought, which takes the form of a declaratory order and a mandamus, and a further order setting aside the appointments of the fourth to eighth respondents.
[10] The arbitrator decided the jurisdictional point on a preliminary basis. Having set aside that ruling, this dispute should properly be remitted to the Council for another arbitrator to hear full evidence and argument on the merits, given that I have found that the Council is the forum with jurisdiction.
[11] It is for those reasons that I granted the order that I did
_______________________
Steenkamp J
APPEARANCES APPLICANT: B A Ndou (attorney).
[1] Cited as the respondent at arbitration and represented by the first respondent (the head of department) and the ninth respondent (the MEC for roads and transport) in these proceedings.
[2] 2010 (1) 62 (SCA).