Smit v Mthembu and Others (JR 2689/10) [2012] ZALCJHB 194 (16 April 2012)

Smit v Mthembu and Others (JR 2689/10) [2012] ZALCJHB 194 (16 April 2012)

The Labour Court held that the bargaining council did have jurisdiction to arbitrate the dispute referred by the applicant. The court found that section 186(1)(c) of the LRA allows a former employee to seek enforcement of an agreement to reinstate or re-employ, and that the existence or terms of such agreement are matters for the merits, not jurisdiction. The commissioner's ruling to the contrary was described as absurd and contrary to the purpose of the Act. The court substituted the commissioner's ruling with a finding that the bargaining council has jurisdiction and remitted the matter for arbitration before a different arbitrator. Costs were awarded against the third respondent, as...

Citation
[2012] ZALCJHB 194
Parties
Applicant: Gerrit Joachim Smit; Respondent: JB Mthembu; Respondent: Safety and Security Sectoral Bargaining Council; Respondent: South African Police Service
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
16 April 2012
Case Number
JR 2689/10
Procedural Posture
Review Application / Application to Review and Set Aside a Jurisdictional Ruling of the Bargaining Council.
Outcome
Application to review and set aside the commissioner's jurisdictional ruling is granted. The ruling is substituted with a finding that the bargaining council has jurisdiction. The matter is remitted for arbitration before a different arbitrator. Costs awarded against the third respondent.
Judges
A van Niekerk
Legal Topics
Jurisdiction of Bargaining Council, Unfair Labour Practice, Reinstatement Agreement, Review of Arbitration Award
Labour Law Civil Procedure Jurisdiction of Bargaining Council Unfair Labour Practice Reinstatement Agreement Review of Arbitration Award

Case Brief

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Parties

Gerrit Joachim Smit

Applicant

JB Mthembu

Respondent

Safety and Security Sectoral Bargaining Council

Respondent

South African Police Service

Respondent

Procedural Posture

Review Application / Application to Review and Set Aside a Jurisdictional Ruling of the Bargaining Council.

Legal Issues

  1. 1 Whether the bargaining council had jurisdiction to arbitrate the unfair labour practice dispute referred by the applicant.
  2. 2 Whether a former employee can seek enforcement of an agreement to reinstate or re-employ under section 186(1)(c) of the LRA.
  3. 3 Whether the commissioner erred in upholding the point in limine regarding jurisdiction.

Ratio Decidendi

The Labour Court held that the bargaining council did have jurisdiction to arbitrate the dispute referred by the applicant. The court found that section 186(1)(c) of the LRA allows a former employee to seek enforcement of an agreement to reinstate or re-employ, and that the existence or terms of such agreement are matters for the merits, not jurisdiction. The commissioner's ruling to the contrary was described as absurd and contrary to the purpose of the Act. The court substituted the commissioner's ruling with a finding that the bargaining council has jurisdiction and remitted the matter for arbitration before a different arbitrator. Costs were awarded against the third respondent, as...

Court Disposition

Application to review and set aside the commissioner's jurisdictional ruling is granted. The ruling is substituted with a finding that the bargaining council has jurisdiction. The matter is remitted for arbitration before a different arbitrator. Costs awarded against the third respondent.

Orders

  • The ruling made by the first respondent on 1 September 2010 is reviewed and set aside.
  • The ruling is substituted by: 'The bargaining council has jurisdiction to arbitrate the dispute referred by the applicant.'