Oageng v Mfati N.O. and Others (JR1708/20) [2022] ZALCJHB 336 (28 November 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR1708/20

In the matter between:

MMOKWA EDDY QAGENG

Applicant

And

KABELO LESIBA MFATI N.O.

First Respondent

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

Second Respondent

SINANYE PLATINUM MINE

Third Respondent

Heard: 10 November 2022

Delivered: 28 November 2022

(This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date and time for hand-down is deemed to be 10h00 on 28 November 2022.)

Summary: Review of a jurisdictional ruling – CCMA cannot strip itself of the jurisdiction it has.

JUDGMENT

NKUTHA-NKONTWANA, J

[1] This is a review application in terms of section 158(1)(g) of the Labour Relation Act[1] (LRA). The applicant impugns the jurisdictional ruling rendered by the first respondent (commissioner) under case number NWRB 1375-29

dated 23 September 2020 under the auspices of the second respondent (CCMA). The commissioner found that the CCMA has no jurisdiction to arbitrate the matter as the applicant was not an employee of the third

respondent. The third respondent is defending the jurisdictional ruling.

[2] The background facts are mostly common cause. The applicant applied for the position of Supervisor Health and Safety that was advertised by the third respondent in January 2020. According to the third respondent, the position of Supervisor Health and Safety is a legal

appointment in terms of the Mine Health and Safety Act[2]. The role is responsible for the development, implementation and management of safety and risk control programs, as well as ensuring

legal compliance and provision of a safety advisory and reporting service to the Operating Unit of Area.

[3] On 18 February 2020, as part of the recruitment process, the applicant was subjected to a compulsory screening process. As part of the screening process, the applicant had to complete the consent and indemnity form permitting the third respondent to conduct background verification checks, inter alia, credit, criminal, qualification and employment references. The applicant’s response to the required full disclosure of criminal charges or convictions was that he had a pending criminal charge relating to a motor vehicle accident. Thereafter, he was attended an interview but no criminal information was sought during his interview.

[4] On 27 February 2020, the applicant signed an offer of employment which was subject to and conditional upon the applicant passing the screening process. Clause 20 of the offer of employment provides:

‘20. SCREENING PROCESS

20.1 By signing this offer you understand and provide your express permission that the Company, or anyone acting on its behalf shall be entitled to conduct a screening process including:

20.1.1 security and risk clearance, which may entail a verification of any criminal, civil judgments, and past employment history;

20.1.2 credit record checks;

20.1.3 verification of personal details including i.e. verification of qualifications, credentials and references.

20.2 This offer will not come into operation until such time that, in the opinion of the Company, you have satisfactorily passed the screening process and related checks.

20.3 Furthermore, the company reserves a right to refuse to enter into an employment relationship with you or terminate your employment in the event of you having a criminal conviction and/or civil judgement which renders you unsuitable for continued employment.

20.4 Due to operational reasons, you may be required to start working on an expedited basis prior to the screening process having been completed, in such cases, should you fail to satisfactorily pass the screening process, your association with the Company will automatically terminate.’[3] (Own Emphasis)

[5] On 24 March 2020, the screening results came back and the third respondent picked up that the applicant omitted to disclose that, as a result of the motor vehicle accident, he has been charged with the offence of culpable homicide and is awaiting a trial.

[6] The third respondent contends that, by failing to make a full disclosure of the details of the charge, the applicant misrepresented facts and was, therefore, disqualified for appointment as Health and Safety Supervisor. Accordingly, he failed the screening process which was a suspensive condition and, as such, the contract of employment never came into existence.

[7] Dissatisfied with the turn of events, the applicant referred a dispute of unfair dismissal to the CCMA. The commissioner upheld the third respondent’s jurisdictional point. He found that, since the applicant failed the screening process, which constituted a suspensive condition for employment, he was not an employee of the third respondent as there was no employment relationship that came into existence. That is the reason for this application.

[8] In these proceedings, the parties accept that the review test in this instance is correctness as opposed to reasonableness.[4] Moreover, it is a trite principle that the CCMA cannot decide its own jurisdiction. Accordingly, a jurisdictional ruling is merely for convenience as the CCMA could not robe itself with jurisdiction which it does not have or disrobe itself of jurisdiction by making an incorrect ruling that it lacks jurisdiction which it actually has.[5]

[9] The third respondent contends that the applicant failed to make full disclosure to its satisfaction in relation to his criminal charge of culpable homicide. As a result, it invoked clause 20.3 of the offer of employment. The applicant’s counsel, Mr Hulley SC, tore this contention to shreds as clause 20.3 refers to a criminal conviction as opposed to a criminal charge. I agree that the third respondent’s contention is untenable.

[10] Likewise, there is no merit in the third respondent’s reliance on clause 19.4 of the offer of employment which provides that “[y]ou are required to disclose in writing fully and honestly any criminal and/or civil record you might have and/or pending criminal or civil matter which you are a party to, prior to signing this agreement”[6]. In terms of clause 19.6, the third respondent has the right to terminate the offer of employment in the event it transpires that the job applicant failed to make a full disclosure. The only business-like construction of clauses 19.3 and 19.6 is that a failure to make full disclosure empowers the third respondent to terminate the employment relationship. It follows that the CCMA does have was jurisdiction to determine the fairness of that termination which is, in a sense, a dismissal.[7]

[11] In sum, the commissioner erroneously found that he had no jurisdiction to arbitrate the dispute. As such, the jurisdictional ruling is assailable.

[12] On the issue of costs, Mr Hulley submitted that, even though the applicant seeks costs, he and his junior, Mr Ford, will not charge their fees. On the other hand, Mr Kent, appearing for the third respondent, submitted that, to the extent that the third respondent’s opposition was not ill-conceived, it should not be saddled with costs. In my view, the requirements of the law and fairness dictate that costs be awarded as the applicant is an individual litigant who had to expend money to vindicate his rights. Besides, I have taken into account the benevolent offer by the applicant’s counsel to abandon their fees.

[13] In circumstances I made the following order:

Order

1. The jurisdictional ruling under case number NWRB 1375-29 dated 23 September 2020 is reviewed and set aside and is substituted with the following order:

‘The CCMA has jurisdiction to arbitrate the matter.’

2. The matter is remitted back to the CCMA to be enrolled for arbitration before an arbitrator other than the first respondent.

3. The third respondent shall pay the applicant’s costs, excluding the costs of two counsel.

P. Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Advocate G.I. Hulley SC & Advocate B Ford

Instructed by:

Rabia Sayed Attorneys

For the Respondents: Mr J Kent from SolomonHolmes Attorneys

[1] Act 66 of 1995, as amended.

[2] Act 29 of 1996.

[3] See: The offer of employment, p 21 of the bundle of the CCMA documents.

[4] See: Solidarity obo Van Tonder v Armaments Corporation of South Africa (SOC) Ltd and others [2019] 8 BLLR 782 (LAC) at para [5].

[5] See: SA Rugby Players’ Association (SARPA) and others v SA Rugby (Pty) Ltd and others; SA Rugby (Pty) Ltd v SARPU and another [2008] ZALAC 3; [2008] 9 BLLR 845 (LAC) at para [41].

[6] See: The offer of employment, p 21 of the bundle of the CCMA documents.

[7] In terms of section 186(1)(a) of the LRA, dismissal means that an employer has terminated employment with or without notice.