Article 58/2022

The scenario is as follows: a trade union and an employer concluded a collective agreement for the period 2011 to 2012.  The agreement governed matters such as salary increases, working hours, benefits and other terms and conditions of employment and was to remain binding on the parties until 30 June 2012.  The union alleged that, in 2018, a dispute arose in that the employer failed to extend benefits in terms of the said collective agreement to certain employees.  When the matter proceeded to arbitration before the CCMA, the employer challenged the jurisdiction of the CCMA alleging that the dispute was not referred within a reasonable time period.  The CCMA agreed and made a ruling to the effect that it lacked jurisdiction to entertain the matter in terms of s24 of the LRA.  On review, what was the viewpoint of the labour court in respect of the following issues:

(i) with reference to SA Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others (2008) 29 ILJ 2218 (LAC) and Eskom Holdings Soc Ltd v NUM obo Kyaya and Others [2017] 8 BLLR 797 (LC), what is the test to be utilised to determine whether or not the CCMA correctly indicated that it lacked jurisdiction and what approach should be adopted if indeed such a finding has been made?

(ii) seeing that there is no specific statutory time period within which this type of dispute has to be referred to the CCMA for determination, was it a requirement that such dispute had to be referred within a reasonable time period or, alternatively, is the true scenario that each day the disputed benefits were not extended this gave rise to a new claim and, therefore, the requirement of a reasonable period is not necessary?

(iii) the distinction between a single, completed wrongful act and a continuous wrong was accepted by the labour appeal court in the context of claims under both the LRA and the EEA (see, in this regard, inter alia, South African Broadcasting Corporation Limited v CCMA and Others and Brilliant and 50 Others v Gauteng Gambling Board [2017] JOL 37571 (LC)).  On what basis did the labour court in casu distinguish these cases from the present case?

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The labour court, in SACCAWU v De Wet NO, CCMA and Sun International (2021) 32 SALLR 29 (LC), adopted the following approach to the above issues raised:

  • the test on review concerning the jurisdiction of the CCMA is fairly trite. The enquiry to be conducted by the labour court was whether the determination of the commissioner had been right or wrong
  • in Eskom Holdings SOC Ltd v NUM obo Kyaya and Others [2017] 8 BLLR 797 (LC), at paragraph [32], it was held that, in matters surrounding the jurisdiction of the CCMA, the court is entitled, if not obliged, to determine the issue of jurisdiction of its own accord. In that regard, the court must determine the issue de novo, in order to decide whether the determination by the arbitrator on jurisdiction was right or wrong (SA Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others (2008) 29 ILJ 2218 (LAC), at paragraphs [39] to [41].)
  • in casu, the dispute concerned the alleged failure by the employer to implement in full a substantive agreement for the period 2011 to 2012, in particular clause 10 and/or the application and interpretation of the above agreement (concerning the alleged failure of the employer to extend certain benefits to certain employees – in terms of paragraph 5 of the relevant LRA Form 7.11, the union indicated the date of the dispute as being 16 July 2018
  • the employer raised the point in limine that the union failed to refer the dispute to the CCMA within a reasonable time period and also failed to apply for condonation for such failure
  • Revelas J, in NUCW v Oranje Mynbou en Vervoer Maatskappy Bpk [2000] 2 BLLR 196 (LC), at paragraphs [8] to [9], stated the following: ‘A dispute about the application of a collective agreement, referred to in terms of s24(1) of the LRA, includes a dispute about the enforcement of a collective agreement which is allegedly breached.’
  • Sutherland J, in Health and Other Services Personnel Trade Union of South Africa obo Tshambi v Department of Health, KwaZulu-Natal [2006] 7 BLLR 649 (LAC), adopted the following approach:
  • what constitutes a reasonable time within which to refer a true labour dispute is dictated by the expectations to be derived from the LRA, not civil litigation – in true labour disputes, the provisions of s191(1) of the LRA are a more obvious general yardstick to test what is a reasonable time for a referral
  • the absence of a prescribed period does not automatically licence a longer period than is the norm for other labour disputes to be referred (so applied in casu)
  • applying the aforesaid approach, the CCMA in casu held that, in terms of s191(1)(b)(ii) of the LRA, 90 days are to be calculated from the date that the respondent allegedly incorrectly applied and/or interpreted the 2011/2012 substantive agreement, or, if it is a later date, within 90 days of the date that the applicant became aware of such ‘wrong’ interpretation and/or application of such substantive agreement
  • the following is a summary of the current case law dealing with a so-called ongoing dispute:
  • SA Broadcasting Corporation v CCMA and Others (2010) 31 ILJ 592 (LAC) – in respect of an unfair labour practice dispute in terms of s186(2)(a) of the LRA, dealing with a promotion dispute or, alternatively, a discrimination dispute in terms of s6 of the EEA, the concept of an ongoing dispute was recognised and the following ratio is to be identified: ‘But, where an employer decides to pay its employees who are similarly qualified with similar experience performing similar duties different wages based on race or any other arbitrary ground,then notwithstanding the fact that the employer implemented the differential on a particular day the discrimination is continual or repetitive.’
  • Parliament of the Republic of South Africa v CCMA and Others (C646/16) [2018] ZALCCT 12 (24 April 2018) – with reference to an unfair labour practice in terms of s186(2)(a) of the LRA, constituting a benefits dispute, it was held that the distinction between ‘ordinary unfair labour practice’ and ‘continuing unfair labour practice’ does not hold true – in line with Tshambi
  • Brilliant and 50 Others v Gauteng Gambling Board case number JS286/15; JS721/14 – in respect of a dispute concerning an alleged unfair discrimination in terms of the EEA, especially dealing with the employer’s failure to compensate employees in accordance with the principles of equal pay for work of equal value, Van Niekerk J, applying the principles established in SA Broadcasting Corporation, also acknowledged the concept of an ongoing dispute
  • Mngadi v Jenkin (2021) 21 SALLR 19 (LAC); (2021) 42 ILJ 768 (LAC) – in respect of an alleged unfair discrimination claim in terms of s6 of the EEA, in applying SA Broadcasting Corporation, it was held that such established discrimination is ongoing and repetitive (i.e. the payment of salaries every month) and every such date constitutes a new 6-month period (in terms of s10(2) of the EEA) and, consequently, condonation is not required for the referral of past and future payments
  • in casu, the labour court, after considering the above case law, followed the approach adopted in Tshambi and held that, in the absence of a prescribed period to refer the dispute for conciliation, the 90-day time period is applicable, so calculated from the day of the wrong interpretation/ application/awareness of the alleged unfair conduct – entailing that the 90-day time period in casu is to be calculated from the end of the collective agreement, namely, 30 June 2012, and was not ongoing

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.