Qibi /Quibe v Joy Global Africa (Pty) Ltd; In re: Joy Global Africa (Pty) Ltd v CCMA (JA 119/13) [2015] ZALAC 1; [2015] 4 BLLR 415; (2015) 36 ILJ 1189; [2015] JOL  32728 (LAC) (15 January 2015) per Kathree-Setiloane AJA.

LAC Summary:

Review of a rescission application- employer seeking rescission of a default award granted against it- employer contending that it belongs to a bargaining council and CCMA not having jurisdiction – commissioner dismissing rescission application – Appeal – commissioner assuming jurisdiction and failing to request the CCMA management to make a ruling on whether to refer the dispute to the relevant bargaining council for resolution, or whether he could continue to determine the dispute in terms of s 147 of the LRA – CCMA lacking jurisdiction.

Coram: Musi JA, Murphy AJA and Kathree-Setiloane AJA

Date heard: 20 November 2014         Date delivered: 15 January 2015 [Marked reportable]

Appeal disallowed and Labour Court’s judgment [Benjamin AJ] upheld.

‘[1] The appellant appeals against the decision of the Labour Court (Benjamin AJ) in which it set aside on review an arbitration award made by the Commissioner acting under the auspices of the Commission for Conciliation Mediation and Arbitration (“the CCMA”), on 14 May 2013, in which it dismissed an application by the respondent to rescind a default arbitration award which was made on 28 March 2013, in the absence of the respondent.

[2] The appellant was dismissed by the respondent on 9 December 2011. He referred an unfair dismissal dispute to the CCMA. The matter was set down for arbitration on 26 March 2012. The parties were notified by the CCMA of the date of set down by facsimile. On receipt of the notice of set down, on 17 February 2012, the respondent’s Group Human Resource Manager, Mr S Skosana, addressed an e-mail to Ms J Modiba of the CCMA’s case management division, informing her that the CCMA did not have jurisdiction to arbitrate the dispute as the respondent is a member of the Metal and Engineering Industries Bargaining Council (MEIBC).[1] The respondent did not receive a response from the CCMA.

[3] The Commissioner who was assigned the arbitration was presumably unaware of the respondent’s e-mail of 17 February 2012, and made a default arbitration award on 28 March 2012, in which he found that the appellant was unfairly dismissed and ordered his retrospective reinstatement. On 13 April 2012, the respondent brought an application for the rescission of the default award on inter alia the grounds that the CCMA had no jurisdiction to arbitrate the dispute as it should have been referred to the MEIBC under whose jurisdiction it fell. With reference to the respondent’s e-mail of 17 February 2012, the Commissioner found as follows in his award in the rescission application:

‘The CCMA’s failure to respond to the e-mail did not exempt the employer from attending the hearing on 26 March 2012. Further the employer did not provide any proof of registration with the MEIBC. The CCMA can assume jurisdiction to any dispute that falls under the jurisdiction of any Bargaining Council if the jurisdiction issue is not or was not raised at the beginning of the arbitration.’”