Special Investigating Unit v Commission for Conciliation, Mediation and Arbitration and Others (JR509/2014) [2017] ZALCJHB 127 (21 April 2017)

Special Investigating Unit v Commission for Conciliation, Mediation and Arbitration and Others (JR509/2014) [2017] ZALCJHB 127 (21 April 2017)

The Labour Court found that the Commissioner misinterpreted section 186(2)(b) of the Labour Relations Act by equating the lodging of a complaint and investigation with disciplinary action short of dismissal. The Court held that no disciplinary action was taken against Lubita, and therefore, no unfair labour practice occurred. The CCMA lacked jurisdiction as there was no live dispute involving disciplinary action or suspension. The compensation awarded by the Commissioner was unjustified and exceeded her powers, as it was based on sympathy rather than legal entitlement. The award was reviewed and set aside, and substituted with an order that the applicant's conduct did not constitute an...

Citation
[2017] ZALCJHB 127
Parties
Applicant: Special Investigating Unit; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner Mabel Sikiti N.O.; Respondent: NEHAWU obo Herbert Lubita
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
21 April 2017
Case Number
JR509/2014
Procedural Posture
Review Application / Labour Court Review of Arbitration Award
Outcome
The arbitration award issued by the Commissioner is reviewed and set aside. The conduct of the applicant did not constitute an unfair labour practice. No order as to costs.
Judges
E Tlhotlhalemaje
Legal Topics
Unfair Labour Practice, Disciplinary Action Short of Dismissal, Jurisdiction of Ccma, Compensation for Unfair Labour Practice
Labour Law Civil Procedure Unfair Labour Practice Disciplinary Action Short of Dismissal Jurisdiction of Ccma Compensation for Unfair Labour Practice

Case Brief

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Parties

Special Investigating Unit

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner Mabel Sikiti N.O.

Respondent

NEHAWU obo Herbert Lubita

Respondent

Procedural Posture

Review Application / Labour Court Review of Arbitration Award

Legal Issues

  1. 1 Whether the failure to institute disciplinary proceedings after a complaint and investigation constitutes an unfair labour practice under section 186(2) of the Labour Relations Act.
  2. 2 Whether the CCMA had jurisdiction to determine the dispute in the absence of disciplinary action or suspension.
  3. 3 Whether the compensation awarded by the Commissioner was justified in law.

Ratio Decidendi

The Labour Court found that the Commissioner misinterpreted section 186(2)(b) of the Labour Relations Act by equating the lodging of a complaint and investigation with disciplinary action short of dismissal. The Court held that no disciplinary action was taken against Lubita, and therefore, no unfair labour practice occurred. The CCMA lacked jurisdiction as there was no live dispute involving disciplinary action or suspension. The compensation awarded by the Commissioner was unjustified and exceeded her powers, as it was based on sympathy rather than legal entitlement. The award was reviewed and set aside, and substituted with an order that the applicant's conduct did not constitute an...

Court Disposition

The arbitration award issued by the Commissioner is reviewed and set aside. The conduct of the applicant did not constitute an unfair labour practice. No order as to costs.

Orders

  • The arbitration award issued by the second respondent under case number FS73311-13 dated 29 January 2012 is reviewed and set aside.
  • The award is substituted with an order that the conduct of the Special Investigating Unit against Herbert Lubita did not constitute an unfair labour practice within the meaning of section 186(2)(b) of the Labour Relations Act.