Disregarding time limits: Jurisdictional issues considered

Note: Footnotes omitted and emphasis added

[1] There was a strike at the respondent’s workplace in September 2014. The respondent obtained an order from the Labour Court declaring the strike unprotected.

[2] Following upon the order, the respondent decided to take disciplinary action against 22 of its employees. Ten of them were charged with participating in an unprotected strike and the other 12, who are the second to further appellants in this matter, were charged with misconduct while participating in the strike.

[3] Those charged with participating in an unprotected strike were given a final written warning valid for 12 months. The second to further appellants (the appellants) as stated earlier, were charged with misconduct while participating in the unprotected strike. They were found to have committed the misconduct at a disciplinary hearing and dismissed.

[4] The appellants, together with their union, the first appellant, challenged the fairness of their dismissals. The ground of the claim of unfair dismissals was that the employer, the respondent, applied discipline inconsistently. The argument was that the appellants should have been treated no differently than the other ten employees who were given a final written warning.

[5] Somehow the fact that the complaint against the appellants, while they were out on the unprotected strike, included the charge of misconduct, which was not preferred against the other ten employees, seemed to have escaped them.

[6] The respondent, on the other hand, argued that this was simply an issue of misconduct and had nothing to do with the strike. This argument is either grossly naive or a deliberate attempt to confuse the issue. The misconduct was directly related and linked to the strike action. It was not something that happened independent of the strike action and as such the dismissal was directly linked to the strike.

[7] In any event, all of this is of little relevance at this time. After their dismissals, the appellants referred their dismissal dispute to the for conciliation. Conciliation failed to resolve the dispute. The appellants then referred the matter for arbitration to the CCMA.

[8] The arbitrator found that the CCMA did not have jurisdiction to determine the fairness of the dismissals because the dismissals were connected to or linked with the issue of the unprotected strike and in terms of s 191(5)(b)(iii) of the Labour Relations Act (the LRA) the CCMA did not have jurisdiction to arbitrate such a dispute.

[9] Having found that the CCMA had no jurisdiction to entertain the dispute, the arbitrator stated that the dispute between the parties had to be referred to the Labour Court for adjudication adding that it be so referred within six weeks of the ruling which he handed down.

[10] The respondent argued that the appellants failed to refer their dispute to the Labour Court for adjudication within six weeks. The debate on whether or not the appellants launched their statement of case within six weeks of the CCMA ruling is irrelevant.

[11] A dismissal dispute referred to the Labour Court for adjudication must be referred within 90 days of the date on which a commissioner seized with the conciliation of the dispute has certified that the dispute is unresolved or within 90 days after the lapse of 30 days from the date on which a party refers the dispute for conciliation. Therefore, the statement of case commencing the appellants’ action in the Labour Court had to be filed with the Labour Court within 90 days of the certificate being issued indicating that the dispute between the parties was unresolved at conciliation.

[12] The statement of case does not comply with the time period as recorded above; it was in fact filed substantially late. The appellants saw no reason to file an application for condonation believing that they acted timeously because they launched the application within the six week period as the CCMA ruled they should.

On this, I must state that the CCMA or any bargaining council has neither the power, authority or jurisdiction to amend, alter, condone or set aside time limits relating to matters that are before the Labour Court or are to be referred to the Labour Court, as this is regulated by the LRA or the Labour Court Rules.

[13] In the circumstances, the ruling by the CCMA that appellants launch their application within six weeks of its (CCMA) ruling is of no consequence. The appellants were required to launch their action within 90 days of the non resolution of the dispute at conciliation. The fact that time was lost in this matter being referred to arbitration serves to explain the delay when condonation is sought but does not excuse the noncompliance with the time limits.

[14] The statement of case was filed out of time, and as such, an application for condonation was necessary. This was not done. The respondent took a point in limine that absent condonation the Labour Court could not entertain the action as it had no jurisdiction to do so.

[15] The point in limine was set down for hearing. On the date of the hearing the appellants sought to amend their statement of case seeking inter alia condonation for the late filing of their action.

[16] It is trite that condonation for noncompliance with the provisions of an Act must be made by way of an application which comprises a notice of motion and a founding affidavit because in applying for condonation one is seeking an indulgence, an indulgence which only the court can grant and also only on good cause shown.

Therefore, in seeking an indulgence a party must set out fully why the court should grant it the indulgence.

[17] In this matter, the Labour Court had no option but to deal with the point in limine because that is what was set down for hearing before it and there was no proper condonation application before it nor was a postponement sought to bring a proper condonation application.

[18] Although the Labour Court phrased its order in the form of refusing condonation when it should have upheld the point in limine and dismiss the action for lack of jurisdiction, this is neither here nor there.

[19] The dismissal of the statement of case was correct because the Labour Court being a creature of statute could not entertain a dispute which did not comply with the time limits prescribed by the LRA.

[20] In the circumstances, the appeal must fail. I also see no reason to make an order of costs.

[21] In a result, the appeal is dismissed with no order as to costs.

Summary

Media summary

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