Article written by Avyakta Sing, Candidate Attorney, checked by Kirsten Chetty, Associate and released by Chantelle Gladwin-Wood, Partner at Schindlers Attorneys
05 July 2022
Mr Rala-Rala (“the Respondent”) was employed by Colgate-Palmolive (Pty) Ltd (“the Applicant”) as its CDT Finance Manager. In August 2017 the Respondent suffered a brain stem bleed, which temporarily incapacitated him. As a result, he was booked off work from 1 August 2017, with his anticipated return date being 2 January 2018. In November 2017, whilst the Respondent was still unable to resume his duties, the Applicant advised the Respondent of its decision to fill the role of CDT Finance Manager, due to his inability to work for a prolonged period. During this time, the Applicant received a special review audit report indicating under-accruals in its books of accounts, which were previously overseen by the Respondent. Upon the Respondent’s return to work in January 2018 he was offered three different positions, as his role had been replaced. The Respondent refused to accept the three alternative positions offered to him, as he considered the alternative positions to be tantamount to a demotion given his professional experience. Despite the Applicant’s attempts to amicably resolve this, with no agreement having been reached between the parties, the Respondent was appointed as Senior Credit Controller. The Respondent maintained his stance and once again refused this new appointment, following which the Applicant instituted disciplinary proceedings against him based on allegations of misconduct. The Respondent was ultimately found guilty of failing to properly manage his department, as well as those who report to him, and failure to diligently release and sign off on accruals and claims without adequate validation of the amounts detailed therein. This resulted in his dismissal. Pursuant to this the Respondent referred the matter to conciliation and thereafter arbitration on the basis that he was unfairly dismissed. This dispute is currently before the National Bargaining Council for the Chemical Industry (“NBCCI”), before the Third Respondent (Ms Nozibusiso Faith Gumede).
The Applicant herein has brought the current review application before the Labour Court in an attempt to challenge the jurisdiction of the NBCCI to adjudicate the Respondent’s unfair dismissal claim. The Applicant alleges that the Respondent’s claim is for an automatically unfair dismissal, in terms of section 187(1)(c) of the Labour Relations Act 65 of 1995 (“the LRA”), and for that reason the NBCCI does not have jurisdiction to consider the matter.
This case presents two legal questions. The first being whether the protection afforded by section 187 (1)(c) of the LRA, since the amendment thereof in 2014, extends to the current set of facts, where the dismissal of an individual employee is in dispute. Secondly, what the role of an arbitrator is and the ambit of his/her authority.
Section 187(1)(c) concerns dismissals that are automatically unfair as a result of an employee having refused to accept a demand in respect of any matter of mutual interest between the employer and said employee. The Court highlighted the previous use of the section, which was to discourage employers from offering “re-employment” to employees who have been retrenched after refusing to accept changes in working conditions. The case law prior to the amendment refers to an “employee” (singular) as opposed to “employees” (plural/collective group).
With an appreciation of the wording of the amended section it is clear that its intention is to protect the integrity of the collective bargaining process (where a group is concerned, and not an individual employee)1. More specifically, it seeks to prevent the use of dismissal as a tool of coercion in the collective bargaining process. As such, for the section to find application, there must have been an employer demand made to two or more employees, which is refused and results in the consequential dismissal of said employees.
Irrespective of this distinction, the Respondent did not place any reliance on section 187(1)(c) of the LRA (as amended), even as an alternative course of action. This is despite the Applicant’s insistence that the referral herein is based on section 187(1)(c) of the LRA. In fact, it is common cause that the Respondent’s dismissal was as a result of a ruling following his disciplinary hearing, as is evidenced by the LRA forms completed and lodged requesting the conciliation and arbitration of the matter (in terms of section 191(5) of the LRA). As such, the Respondent clearly elected to challenge his dismissal on the basis of “misconduct” as contemplated in terms of section 191(5)(a)(i) of the LRA (and not automatic unfair dismissal in terms of section 187(1)(c) of the LRA).
Moreover, the referral of this matter to arbitration dictates that the arbitrator adjudicating over the matter establish the true nature of the dispute (this is especially the case as referrals of this nature are not done by way of formal pleadings but rather standard forms, wherein the specifics of the matter are detailed).
While the Applicant herein attempted to argued that the NBCCI did not have jurisdiction to arbitrate over the matter currently before it, it would appear that this argument was born of the Applicants’ ill-conceived understanding of the basis for the Respondent’s referral and dispute raised therein. In this regard, it would appear that the Applicant misconstrued the referral as being founded in terms of section 187(1)(c), where the same has clearly been brought in terms of section 191(5)(a)(i) of the LRA.
For this reason, the Court held that the review application brought before it by the Applicant, in terms of section 158(1B) of the LRA, must fail. And more specifically, the jurisdictional ruling of the NBCCI remains unassailable and stands2.
This case reiterates the effect of the amendment to section 187(1)(c) of the Labour Relations Act 66 of 1995, as well as the responsibility of an Arbitrator in arbitration proceedings. Explanatory Memorandum (emphasis placed).  Section 158 (1B) of the Act reads as follows: The Labour Court may not review any decision or ruling made during conciliation or arbitration proceedings conducted under the auspices of the Commission or any bargaining council in terms of the provisions of this Act before the issue in dispute has been finally determined by the Commission or the bargaining council, as the case may be, except if the Labour Court is of the opinion that it is just and equitable to review the decision or ruling made before the issue in dispute has been finally determined.