The LAC disallowed the appeal and upheld the order of Tlhotlhalemaje AJ, as he then was, in the LC.  The bargaining council did not have the jurisdiction nor power to deal with the dispute concerning differentiation and whether it amounted to discrimination.

Motsomotso v Mogale City Local Municipality (JA44/2015) [2016] ZALCJHB 268 (21 July 2016) per CJ Musi JA (Sutherland JA and Murphy AJA concurring)

LAC summary:

Unfair discrimination dispute – Commission for Conciliation, Mediation and Arbitration (CCMA) the only dispute resolution forum clothed with the power to conciliate unfair discrimination dispute in terms of section 10 of the Employment Equity Act – in casu unfair labour practice dispute previously conciliated by a bargaining council could not be construed as conciliation of the unfair discrimination dispute.  The Bargaining council does not having jurisdiction to conciliate such dispute.  Labour Court correct in holding that it lacks jurisdiction to adjudicate an unfair discrimination dispute which had not been referred for conciliation to the CCMA.  Appeal dismissed. 

 

Excerpts without footnotes

[12]     A dismissal or dispute about an unfair labour practice may therefore be referred to a bargaining council.  A bargaining council’s power to conciliate or arbitrate a dispute is derived from the terms of its accreditation.  The period for which a bargaining council is accredited and the terms of accreditation must be set out in its certificate of accreditation.  Therefore, if a bargaining council is not accredited to perform a particular function it may not perform such function.

[13]     In terms of section 10 of the EEA, any party to a dispute concerning unfair discrimination may refer such dispute in writing to the CCMA within six months after the act or omission that allegedly constitutes unfair discrimination.  The CCMA must attempt to resolve the dispute through conciliation and if it remains unresolved after conciliation any party may refer it to the Labour Court for adjudication or all the parties to the dispute may consent to arbitration of the dispute.  In terms of the EEA, “CCMA” means the Commission for Conciliation Mediation and Arbitration established by section 112 of the Labour Relations Act.

[14]     CCMA is clearly defined in the EEA and it does not mean the CCMA and or an accredited council or agency.  It means the juristic person established in terms of section 112 of the Act, nothing more nothing less.

[15]     In terms of section 135 of the Act, the CCMA must attempt to resolve a dispute referred to it within 30 days or such extended period as the parties agreed to.  When conciliation has failed or at the end of the 30 day or agreed period, the commissioner must issue a certificate stating whether the dispute has been resolved.

[16]     An unfair discrimination dispute must therefore be referred to the CCMA for resolution in terms of section 135 failing which, it must be referred to the Labour Court unless all the parties agree that it may be referred to arbitration.

[17]     In terms of section 157(4) of the Act, the Labour Court may refuse to determine a dispute if the court is not satisfied that an attempt has been made to resolve the dispute through conciliation.

. . . . .

[19]     When the appellant decided to bring an unfair discrimination claim, it was a different dispute that had to be conciliated before the Labour Court could adjudicate it.  The unfair discrimination dispute was never referred to conciliation.  There was therefore no attempt made to resolve the unfair discrimination dispute through conciliation before it was referred to the Labour Court.

[20]     The bargaining council does not have jurisdiction to conciliate any dispute under section 10 of the EEA.  The bargaining council in casu did not have such dispute before it and it also did not purport to conciliate an unfair discrimination dispute.  The only dispute that was referred to the bargaining council was an unfair labour practice dispute.  Therefore, even if Mr Shakoane’s argument is correct that the certificate remained valid, it would only be valid in respect of the unfair labour practice dispute.