Nehawu obo Kgekwane v Department of Development Planning And Local Government (JA 68/13) [2015] ZALAC 5  ; [2015] 6 BLLR 575 ; (2015) ILJ 1247 (LAC) (15 January 2015) per Kathree-Setiloane AJA.

LAC Summary:

Review of arbitration award – termination of services by operation of law in terms of section 17(5)(a)(i) of the PSA – employee services terminated by operation of law – employee referring unfair dismissal dispute to the CCMA – employee later referred same dispute to bargaining council with jurisdiction- bargaining council ruling that it lacks jurisdiction –  employee not reviewing jurisdictional ruling – employee requesting arbitration at the CCMA – employer contending jurisdiction of the CCMA and that matter already dealt with by the bargaining council – commissioner finding that CCMA not bound by bargaining council ruling and reinstating employee.Labour Court substituting arbitration award with compensation.  Appeal and cross-appeal – issue of jurisdiction dispositive of the appeal – application of section 147(2)(3) of the LRA- once employee referred the dispute to the bargaining council, referral to CCMA lapses – employee may not refer the same dispute to the CCMA and ask the CCMA to exercise its powers under s 147(2) or (3) of the LRA.

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

Heard: 19 November 2014     Delivered:      15 January 2015 [marked reportable]

CCMA hearing an affront to the rule against collateral challenges and is estopped by the exceptio res judicata.  Cross-appeal allowed – Labour Court judgment set aside and substituted with the order that the arbitration award is reviewed and set aside.

“[1]        This judgment concerns both an appeal, and a cross-appeal against the judgment and order of the Labour Court (Bhoola J) dated 25 March 2013 in which, it:

(a) upheld the arbitration award of the Commissioner made under the auspices of the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) on the merits;

(b) reviewed and set aside the relief awarded by it; and

(c) substituted it with the following order:

‘The applicant is ordered to pay the third respondent the sum of R152 861.92, which is an amount equivalent to her salary of R9553.87 for a period of 16 months as compensation for her unfair dismissal. Each party is to pay its own costs.’

[2]        On 30 August 2001, the respondent provided the appellant with a letter in which it informed her that she had been discharged pursuant to s 17(5)(a)(i)[1] of the Public Service Act, 103 of 1994 (“the PSA”) with effect from 19 June 2001.  Section 17(5)(a)(i) of the PSA provided that an officer in the public service who without the permission of the Head of Department absents herself from official duties for a period exceeding one calendar month “shall be deemed to have been discharged” from the service on account of the misconduct.  The letter spawned a host of litigation before various tribunals and courts of which the present appeal is the latest chapter.”