PAWUSA and Another v Department of Education [Free Stae Province] and Others (JR 2316/04) [2008] ZALC 46; (2008) 29 ILJ 3013 (LC) (1 January 2008)

PAWUSA and Another v Department of Education [Free Stae Province] and Others (JR 2316/04) [2008] ZALC 46; (2008) 29 ILJ 3013 (LC) (1 January 2008)

The court held that the applicant's discharge was effected by operation of law under section 17(5)(a)(i) of the Public Service Act, not by dismissal as contemplated by the Labour Relations Act. Consequently, the Bargaining Council lacked jurisdiction to arbitrate the dispute, and the arbitrator's award was not one a reasonable decision maker could have reached. The applicant's remedy lay in reviewing the employer's refusal to reinstate under section 158(1)(h) of the Labour Relations Act, not in referring the matter to the Bargaining Council. The points in limine raised by the respondent were sustained. Despite the excessive delay, condonation for the late filing of the review application...

Citation
[2008] ZALC 46
Parties
Applicant: PAWUSA; Applicant: M.J Mdali; Respondent: Department of Education [Free State Province]; Respondent: MEC Department of Education; Respondent: General Public Service Sectoral Bargaining Council (GPSSBC); Respondent: J.B. Mtembu N.O.
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
1 January 2008
Case Number
JR 2316/04
Procedural Posture
Review Application / Judgment on Review and Condonation
Outcome
Application for review granted; arbitration award set aside for lack of jurisdiction; condonation for late filing granted; costs awarded to first respondent.
Judges
Cele AJ
Legal Topics
Public Service Act Abscondment, Jurisdiction of Bargaining Council, Review of Arbitration Award, Condonation for Late Filing
Labour Law Administrative Law Public Service Act Abscondment Jurisdiction of Bargaining Council Review of Arbitration Award Condonation for Late Filing

Case Brief

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Parties

PAWUSA

Applicant

M.J Mdali

Applicant

Department of Education [Free State Province]

Respondent

MEC Department of Education

Respondent

General Public Service Sectoral Bargaining Council (GPSSBC)

Respondent

J.B. Mtembu N.O.

Respondent

Procedural Posture

Review Application / Judgment on Review and Condonation

Legal Issues

  1. 1 Whether the Bargaining Council had jurisdiction to arbitrate the dispute following discharge under section 17(5)(a)(i) of the Public Service Act.
  2. 2 Whether the arbitrator's award was reviewable for misconduct, gross irregularity, or unreasonableness.
  3. 3 Whether condonation for the late filing of the review application should be granted.

Ratio Decidendi

The court held that the applicant's discharge was effected by operation of law under section 17(5)(a)(i) of the Public Service Act, not by dismissal as contemplated by the Labour Relations Act. Consequently, the Bargaining Council lacked jurisdiction to arbitrate the dispute, and the arbitrator's award was not one a reasonable decision maker could have reached. The applicant's remedy lay in reviewing the employer's refusal to reinstate under section 158(1)(h) of the Labour Relations Act, not in referring the matter to the Bargaining Council. The points in limine raised by the respondent were sustained. Despite the excessive delay, condonation for the late filing of the review application...

Court Disposition

Application for review granted; arbitration award set aside for lack of jurisdiction; condonation for late filing granted; costs awarded to first respondent.

Orders

  • The points raised by the first respondent in limine are sustained.
  • Condonation for the filing of the review application is granted.