Posts Tagged ‘Fidelity Guards’

Van Niekerk J once put it mildly by stating that “Section 135 (5) [of the Labour Relations Act, Act 66 of 1995 (‘the LRA’), to the extent that it considers the issuing of a certificate to be mandatory, sits uncomfortably with those provisions of the Act that regulate the statutory dispute resolution process beyond the conciliation stage”.

Sec 135(5)(a) of the LRA records that:-

“When a conciliation has failed, or, at the end of the 30 day period or any further period agreed between the parties… [t]he commissioner must issue a certificate stating whether or not the dispute had been resolved”

The section it sits “most” uncomfortable with is section 191(5)(1)(a) of the LRA which records that: –

“If a council or a commissioner has certified that the dispute remains unresolved, or, if 30 days have expired since the council or the Commission received the referral and the dispute remains unresolved… [t]he council or the Commission must arbitrate the dispute at the request of the employee…”

In Fidelity Guards Holdings (Pty) Ltd v Epstein and others [2000] ZALAC 8 Zondo JP at para [12] held that

“It is the setting aside of the certificate of outcome that would render the CCMA or the council to be without the jurisdiction to arbitrate”

He then stressed this point para [14] and recorded that: –

“I also agree with the views expressed by the court a quo in par 15 of its judgement. There the learned judge had this to say: “‘To my mind jurisdiction of the court under section 191(5) flows from the existence of the appropriate certificate in those classes of dispute which have to be referred to the court'”.

Van Niekerk J in Bombardier Transportation (Pty) Ltd v Mtiya and Others [2010] ZALC 34; (2010) 31 ILJ 2065 (LC) ; [2010] 8 BLLR 840 (LC) (“the Bombardier-case”) at para [14] held that “[a] certificate of outcome is no more than a document issued by a commissioner stating that on a particular day, a dispute referred to the CCMA for conciliation remained unresolved. It does not confer jurisdiction on the CCMA to do anything that the CCMA is not empowered to do, nor does it preclude the CCMA from exercising any of its statutory powers. In short a certificate of outcome has nothing to do with jurisdiction. If a party wishes to challenge the CCMA jurisdiction to deal with an unfair dismissal dispute, it may do so, whether or not the certificate of outcome has been issued. Jurisdiction is not granted or afforded to it by a CCMA commissioner issuing a certificate of outcome. Jurisdiction either exists as the fact or it does not”.

This view is based on interpreting section 135(5)(a) of the LRA in a manner so as to accentuate the fact that the certificate is to provide clarity as to whether the dispute was resolved or not. This view however appear to have lost site of the next section, i.e. section 136 of the LRA which records that “[i]f this Act requires a dispute to be resolved through arbitration, the Commission must appoint a commissioner to arbitrate that dispute if a commissioner had issued a certificate stating that the dispute remains unresolved; and within 90 days after the date on which that certificate was issued, any party to the dispute has requested that the dispute be resolved through arbitration”.

This section makes it clear that the certificate must stipulate that the dispute remains unresolved. One might thus pose the question whether the CCMA would have jurisdiction to arbitrate the dispute where the certificate erroneously records that the dispute has been resolved?

What immediately comes to mind is the famed dicta of Zondo JP in Fidelity Guards Holdings (Pty) Ltd v Epstein and others [2000] ZALAC 8 (“the Fidelity Guards-case”) where he at para [12] clearly stated that “[i]t is the setting aside of the certificate of outcome that would render the CCMA or the council to be without the jurisdiction to arbitrate” and at para [14] that “I also agree with the views expressed by the court a quo in par 15 of its judgement. There the learned judge had this to say: ‘To my mind jurisdiction of the court under section 191(5) flows from the existence of the appropriate certificate in those classes of dispute which have to be referred to the court'”.

The said dicta on the face of it seems in direct conflict with the Bombardier-case but Van Niekerk J overcomes this problem by at parra [9] recording that it “is not clear to me that the judgment serves as authority for the assertion that a certificate of outcome affords the CCMA jurisdiction to arbitrate an unfair dismissal dispute. In truth, Fidelity Guards is concerned only with the proposition that a failure to review an administrative act timeously may result in that act acquiring the force of law (in the sense that it will not be susceptible to review) even though the act is invalid and unlawful”.

This is clearly not the case, Zondo JP’s remarks are clearly to the fact that the issuing of a certificate of outcome constitutes a jurisdictional fact entitling the matter to proceed to arbitration.

One might further pose the question as to why Van Niekerk J’s judgment in the Bombardier-case is even mentioned if it appear clearly in conflict with the dicta of the Labour Appeal Court.

The need for further scrutiny came about in consequence of the following statement by Landman AJA in BMW South Africa (Pty) Ltd v NUMSA obo Members [2011] ZALAC 24 (“the BMW-case”) at para [30] where he states that “[t]he Labour Court declined to review and set aside the CCMA’s certificate of outcome citing Van Niekerk J in Bombadier Transportation (Pty) Ltd v Miya NO and Others (2010) 8 BLLR 840 (LC) at para 15. This approach is the correct one. See Waglay JA (as he then was) in Gillet Exhaust Technology (Pty) Ltd t/a Tennaco v NUMSA on behalf of Members and Another (2010) 31 ILJ 2552 (LAC) [“the Gillet-case”] at para 17″.

At the outset it need be noted that the said case dealt with a certificate issued in relation to strike action (where neither sections 135 or 136 of the LRA find application). Waglay DJP in the Gillet-case at para [17] also dealt with a certificate where sections 135 and 136 of the LRA where not applicable and correctly recorded that “[t]he appellant’s prayer for the setting aside of the certificate of non-resolution of the dispute is misconceived. I say this because whether the certificate of non-resolution is valid or not, in this case this did not affect the legality of the strike the employees may have been planning to embark upon. This is so because in terms of s64(1) (a) (i) and (ii) of the Act a strike will be a protected strike even if there is no certificate of non-resolution of the dispute provided that a period of 30 days from the date of the referral of the dispute to conciliation has lapsed and all the other requirements of s64 of the Act have been complied with”.

There is thus no nexus between the Bombardier-case and the BMW-case. In as far as the Court a quo in the BMW-case relied on Van Niekerk J’s dicta it may be argued that it is correct as in matters where sections 135 and 136 are not applicable, Van Niekerk J’s remarks cannot be faulted. It is further true that sections 135 and 136 of the LRA are unfortunate and that Van Niekerk J’s approach is to be preferred and that statutory intervention pertaining to the said sections are required. The judgment however remains patently in conflict with that of Fidelity Guards and Ladman AJA’s acceptance of the judgment must thus be interpreted as both obiter and limited to its effect on certificates where sections 135 and 136 of the LRA finds no application.