The Labour Court disposes of another hopeless case (and sanctions the attorneys)

On 17 October 2019, the Labour Court was faced with yet another hopeless case, although on this occasion the offending party was the employer.

Written By of Cowan-Harper-Madikizela Attorneys

In South African Broadcasting Corporation (Soc) Limited v The Commission for Conciliation Mediation and Arbitration and others (Unreported case J2055/19, 18 October 2019) the employee, Ms Mkhize, was dismissed by the SABC on 17 October 2018. In response, she referred a dispute concerning an alleged unfair dismissal to the CCMA. The SABC challenged the CCMA’s jurisdiction to determine the matter by arguing that the matter was one concerning a breach of contract rather than an unfair dismissal. It supported this contention by asserting that when an employee misconducts themselves, an employer may decide to treat the matter as either one of misconduct or breach of contract. Therefore, so the SABC argued, since the employee had engaged in misconduct it was free to decide how to deal with the matter. The SABC contended that since it had chosen to deal with it as a breach of contract the employee’s dismissal could only be challenged for its lawfulness and not its fairness. This, the SABC argued, ousted the jurisdiction of the CCMA.

The matter initially came before Commissioner Mqingwana of the CCMA. In dealing with the SABC’s creative contentions, Commissioner Mqingwana ruled that the CCMA had jurisdiction to arbitrate the dispute but that if the evidence led in due course proved that the true nature of the dispute was one in respect of which the CCMA lacked jurisdiction, the dispute would be referred to the appropriate forum.

Subsequent to this Ruling, the dispute was reconvened before Commissioner Du Plessis. After the SABC drew his attention to the Ruling of Commissioner Mqingwana, he refused to hear evidence in relation to the jurisdictional point and instead required the SABC to lead evidence in respect of the unfair dismissal dispute.

In response, on 7 October 2019, the SABC filed an application with the Labour Court seeking to review and set aside the ruling made by Commissioner Mqingwana and to substitute it with a ruling that the CCMA lacked jurisdiction to arbitrate the employee’s dispute.

Four days later the SABC filed a further application in which it sought to stay the arbitration proceedings pending the finalisation of the review application. The SABC contended that if the dispute was to be arbitrated by the CCMA it would be denied its right to review the Ruling and this would expend time and resources in arbitrating the dispute which may be in vain if the review application is successful. The SABC contended that if the proceedings stayed and it subsequently transpired that the CCMA had jurisdiction to arbitrate, then no resources would have been wasted and the matter could be remitted to the CCMA for arbitration.

The application to stay came before van Niekerk J in the Labour Court. The restated the requirements for obtaining an interim order, namely that the SABC was required to show a prima facie right, a well-grounded apprehension of irreparable harm, the lack of a suitable alternative remedy and that the balance of convenience favours the granting of an interim order.

In determining the matter, the Court referred to section 158(1B) of the Labour Relations Act, 66 of 1995, as amended (“the LRA”), which required the SABC to establish that it was ‘just and equitable’ for the Court to intervene and set aside.

The Court found that the SABC had failed to prove on a prima facie basis that it was ‘just and equitable’ for the Court to entertain the review application. The Court found that it had failed to do this for several reasons.

Firstly, the Court found that Commissioner Mqingwana’s ruling amounted to no more than a decision to provisionally assume jurisdiction to hear evidence and to decide whether the CCMA had jurisdiction to determine the dispute on the basis of that evidence. If it transpired during the arbitration that the CCMA lacked jurisdiction, a further Ruling to that effect would have been made.

Secondly, the Court was of the view that control over arbitration proceedings is best left to the presiding commissioner. It is not the function of the Court to micro-manage arbitration proceedings and issue directions to commissioners as to how they should conduct a hearing.

Most importantly, the Court held that there was ‘manifestly no merit in the basis of the SABC’s point in limine’ and, consequently, no merit in the application for review. The Court found that the point raised by the SABC amounted to an assertion that an employer is entitled to choose to treat an act of alleged misconduct by an employee either as a breach of conduct or a breach of a disciplinary rule. If the SABC’s argument was to be accepted, this would mean that any recourse by an employee would be confined to a contractual remedy, which the CCMA is not empowered to grant.

The Court was clinical in disposing of the SABC’s argument:-

“[12]     … This proposition only has to be stated in those terms to illustrate how profoundly unsound it is. The definition of ‘dismissal’ in s 186 of the LRA expressly includes circumstances where the employer has terminated employment with or without notice. Whether the employer casts the termination in the contractual language of acceptance of the repudiation of a contract of employment and an election to cancel the contract, this is no more or less than a termination of employment with or without notice (i.e. a summary termination), which in turn, by definition, constitutes a dismissal for the purposes of s 186. This is a matter over which the CCMA exercises jurisdiction, at least where the reason for dismissal is misconduct, a reason that is not in dispute in the present case (see s 191 (5)). I find it disconcerting to have to record such a trite principle to any labour lawyer, this is a statement of the manifestly obvious.”

The Court found that the SABC had failed to establish any prima facie right and had failed to meet any of the other requirements for interim relief. The application was therefore dismissed.

In respect of costs, the employee sought an order of costs de bonis propriis on the basis that the application constituted an abuse of the process of the Labour Court. The Court found that the conduct of the SABC and its representatives had been directed at frustrating the LRA’s purposes of expeditious disputes resolution. In this regard, the Court remarked that some 12 months had passed since the employee’s dismissal and the arbitration had yet to commence in any meaningful way and that this was due to the SABC launching no fewer than four urgent applications in the Labour Court in respect of that dispute.

The Court drew a distinction between a robust defence of a decision to take disciplinary action and a conscious strategy to deny an employee access to justice. The Court agreed with the employee’s contention that the application brought by the SABC was part of a broader stratagem to prevent the dispute from being finalised.

The Court echoed its sentiments expressed in Mashishi v Mdladla NO and Others (2018) 39 ILJ 1607 (LC) in regard to pursuing hopeless cases at the Labour Court. The Court found that the employee should not be deprived of the costs she has incurred in opposing the SABC’s ‘overbearing’ legal strategy (which itself would have to be funded by the taxpayer). The Court found that the interests of law and fairness required that the SABC’s attorneys be held liable for those costs since holding the SABC liable would unfairly prejudice the taxpayers who keep the SABC afloat. The Court accordingly gave the SABC’s attorneys seven days to make representations as to why an order of costs de bonis propriis should not be made against them.

In our view, the judgment represents a commendable approach to hopeless cases being pursued at the Labour Court. Given the sheer number of hopeless cases being pursued, the question remains whether the CCMA’s Rules should be amended to permit Commissioners to issue similar costs awards against persons pursuing hopeless cases, even at conciliation stage. While there is merit in such a proposition, a delicate balancing act would need to be struck to ensure that the Labour Court is not flooded with further applications to review costs orders. It may, however, be necessary for the LRA to be amended to permit the CCMA to introduce a filtering process in which it conducts an initial assessment of the respective merits of a dispute before enrolling it for conciliation. Such a process could assist in weeding out hopeless cases at an early stage, with minimal cost and effort.

Neil Coetzer

Neil Coetzer
Head of Employment

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