SAMWU v SALGBC and Others (JA 56/13) [2015] ZALAC 117 (24 June 2015)

SAMWU v SALGBC and Others (JA 56/13) [2015] ZALAC 117 (24 June 2015)

The Labour Appeal Court held that section 191(5) of the LRA does not give an employee an election to refer a dispute to arbitration after the lapse of 30 days or to await the issue of a certificate of outcome. The right to refer accrues upon the first occurrence of either event, and the referral must be made within a reasonable time, interpreted as 90 days from the lapse of 30 days or the issue of the certificate, whichever occurs first. The appellant acquired the right to refer the dispute to arbitration on expiry of the 30-day period but failed to do so within 90 days and did not seek condonation for the late referral. The Bargaining Council therefore lacked jurisdiction to arbitrate...

Citation
[2015] ZALAC 117
Parties
Appellant: South African Municipal Workers Union OBO K I Manentza; Respondent: Ngwathe Local Municipality; Respondent: Violet Phatsoane N.O.; Respondent: South African Local Government Bargaining Council
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
24 June 2015
Case Number
JA 56/13
Procedural Posture
Labour Appeal / Appeal From Labour Court Judgment Reviewing and Setting Aside Jurisdictional Ruling of Arbitrator
Outcome
Appeal dismissed. Arbitration award correctly reviewed and set aside by the Labour Court. No order as to costs.
Judges
Waglay, Dlodlo, Setiloane
Legal Topics
Unfair Dismissal, Jurisdiction of Bargaining Council, Condonation for Late Referral, Interpretation of Lra, Conciliation and Arbitration, Reasonable Time for Referral
Labour Law Unfair Dismissal Jurisdiction of Bargaining Council Condonation for Late Referral Interpretation of Lra Conciliation and Arbitration Reasonable Time for Referral

Case Brief

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Parties

South African Municipal Workers Union OBO K I Manentza

Appellant

Ngwathe Local Municipality

Respondent

Violet Phatsoane N.O.

Respondent

South African Local Government Bargaining Council

Respondent

Procedural Posture

Labour Appeal / Appeal From Labour Court Judgment Reviewing and Setting Aside Jurisdictional Ruling of Arbitrator

Legal Issues

  1. 1 Whether the Bargaining Council had jurisdiction to arbitrate the dispute when the referral to arbitration was made outside the prescribed time period without condonation.
  2. 2 Whether section 191(5) of the LRA gives an employee an election to refer a dispute to arbitration after 30 days or to await the issue of a certificate of outcome.
  3. 3 Whether the issue of a certificate of outcome is a prerequisite for referral to arbitration or adjudication under the LRA.

Ratio Decidendi

The Labour Appeal Court held that section 191(5) of the LRA does not give an employee an election to refer a dispute to arbitration after the lapse of 30 days or to await the issue of a certificate of outcome. The right to refer accrues upon the first occurrence of either event, and the referral must be made within a reasonable time, interpreted as 90 days from the lapse of 30 days or the issue of the certificate, whichever occurs first. The appellant acquired the right to refer the dispute to arbitration on expiry of the 30-day period but failed to do so within 90 days and did not seek condonation for the late referral. The Bargaining Council therefore lacked jurisdiction to arbitrate...

Court Disposition

Appeal dismissed. Arbitration award correctly reviewed and set aside by the Labour Court. No order as to costs.

Orders

  • The appeal is dismissed with no order as to costs.