Labour court rules that the bargaining council has jurisdiction to entertain a dispute.
The labour court, in PSA (obo L Liebenberg) v Department of Defence, Public Service Co- Ordinating Bargaining Council and Maritz NO (2013) 24 SALLR 82 (LC), had the opportunity of considering the following important issues:
(a) In a scenario where there is a collective agreement regulating a matter such as the granting of temporary incapacity leave and an employee is dissatisfied with an employer’s refusal to grant such leave in terms of the said collective agreement, is such dispute to be resolved in terms of section 24 of the LRA so dealing with the interpretation or application of such collective agreement?
This review application is unusual in the sense that the parties agree that the arbitrator’s ruling is not sustainable and should be reviewed, set aside and substituted. However, they differ as to the nature of the substituted order.
The dispute turns on the question as to whether or not the second respondent (the bargaining council) had jurisdiction to entertain the dispute that the applicant referred.
That question, in turn, depends on the question whether the dispute can properly be categorised as a dispute over the application of a collective agreement as envisaged in s24 of the Labour Relations Act 66 of 1995 (“the LRA”) or whether the true nature of the dispute is one for substantive relief in which the application of the agreement is merely a matter in the dispute.
Both parties seek to review and set aside a jurisdictional ruling by the arbitrator (the third respondent, Adv Bill Maritz) in which he held that the bargaining council did not have jurisdiction to entertain the dispute that the applicant (the PSA acting on behalf of its member, Ms L Liebenberg) had referred to it.
The PSA seeks a substituted ruling that the bargaining council does have jurisdiction. The first respondent, the Department of Defence (“the Department”), seeks a substituted ruling that the bargaining council does not have jurisdiction, but for different reasons from those advanced by the arbitrator.
Pertinent facts of the case Collective agreement The broader dispute between the parties turns on a collective agreement of the bargaining council, Resolution 7 of 2000 (“the resolution”). The resolution deals with temporary incapacity leave, commonly referred to as “‘TIL” by the parties. The parties have encountered a mutual problem whereby the Department is faced with a large number of applications for temporary incapacity leave from its employees.
Approach of PSA
Where members of the PSA, such as Ms Liebenberg, have been unsuccessful in their applications for TIL, the PSA has referred a dispute to the bargaining council in terms of s24 of the LRA as a dispute over the application of a collective agreement.
It is the union’s view that, where the Department fails to timeously assess and determine such applications, it amounts to a failure to apply the resolution and the bargaining council has jurisdiction to consider the dispute in terms of s24 of the LRA. Section 24(1) of the LRA provides that:
“Every collective agreement – must provide for a procedure to resolve any dispute about the interpretation or application of the collective agreement. The procedure must first require the parties to attempt to resolve the dispute through conciliation and, if the dispute remains unresolved, to resolve it through arbitration.”
Duties of the employer into the collective agreement
The resolution provides for the following process for TIL:
(a) An employee whose normal sick leave credits in the cycle have been exhausted and who, according to the relevant practitioner, requires to be absent from work due to disability which is not permanent, may be granted sick leave on full pay, provided that:
(i) her or his supervisor is informed that the employee is ill; and
(ii) a relevant registered medical and/or dental practitioner has duly certified such a condition in advance, as temporary disability, except where conditions do not allow.
(b) The employer shall, during 30 working days, investigate the extent of the inability to perform normal official duties, the degree of inability and the cause thereof. Investigations shall be in accordance with item 10 (1) of schedule 8 in the Labour Relations Act of 1995.
(c) The employer shall specify the level of approval in respect of applications for disability leave.” The parties are ad idem that the Department has to investigate and decide on an application for TIL within 30 days.
Particulars in casu
Ms Liebenberg exhausted her sick leave credits and applied for TIL in terms of the resolution. Her application was refused, but the Department only notified her of the refusal more than two and a half years after she applied (instead of 30 days). The PSA then referred a dispute to the bargaining council on her behalf.
Nature of the dispute referred to bargaining council
The nature of the dispute was described as the application of a collective agreement, that is, PSCBC Resolution 7 of 2000. The outcome required was that TIL be approved for the period of 5 to 7 November 2008.
Point in limine raised at arbitration
The Department raised a preliminary point that the bargaining council did not have jurisdiction to consider the dispute. Its argument was based on the decision of the labour appeal court in Minister of Safety and Security v SSSBC and Others (2010) 31 ILJ 1813 (LAC).
In short, the Department argued that the interpretation and application of the resolution was only an “issue in the dispute” and that the real dispute was whether it was fair for the Department to have refused Liebenberg’s TIL application.
Findings of the court
The real question for determination
The labour court indicated that the real question for determination is the true nature of the dispute; and the precedent established by the labour appeal court in SSSBC and other cases.
The labour court also agreed with both parties that there would be little point in remitting the jurisdictional question to the bargaining council and that the labour court is in a position to substitute its own decision for that of the arbitrator.
The labour court is bound by the principle of stare decisis and, thus, had to consider whether the SSSBC judgment is in point and whether the import of that decision is to oust the jurisdiction of the bargaining council on the facts before it in this dispute. Subsequent to the arbitration (and the filing of the parties’ heads of argument), though, the labour appeal court’s judgment in PSA obo De Bruyn v Minister of Safety and Security  9 BLLR 888 (LAC) was reported.
In SSSBC, the employee applied for a transfer within the South African Police Services (“SAPS”) which was refused. He referred a dispute about the interpretation and application of a collective agreement dealing with SAPS’s transfer policy and procedures to the Safety and Security Sectoral Bargaining Council (“SSSBC”). He challenged the decision of SAPS to refuse his application for transfer.
The issue before the labour appeal court was whether the SSSBC had jurisdiction to deal with the dispute. That issue had to be determined by how the court answered the further question of whether or not the arbitrator correctly classified the dispute before him as one concerning the interpretation and application of a collective agreement.
It was accepted by both parties that, if the dispute was a dispute about the interpretation or application of a collective agreement, the SSSBC had jurisdiction in respect of the dispute but that, if the dispute was about the fairness of the transfer, the SSSBC did not have jurisdiction.
City Parks judgment
On the same day as it handed down judgment in SSSBC, the labour appeal court handed down judgment in Johannesburg City Parks v Mpahlani NO and Others (201) 3 ILJ 1804 (LAC). In City Parks, the court offered the already-mentioned explanation between “a dispute” and “an issue in a dispute”.
SA Onderwysersunie judgment The labour court applied similar reasoning in SA Onderwysersunie v Head of Department, Gauteng Department of Education and Others (1) (2011) 32 ILJ 1413 (LC), having referred to City Parks and SSSBC judgments, when it held:
“It appears to me that the main dispute in this urgent application is not the interpretation and application of a collective agreement. The relief sought is for the head of department to refund the money deducted from the applicants’ members pending the compilation of a factually correct database. In the course of deciding whether the applicants are entitled to the relief sought, I have to consider various undertakings by the GDE, some of which are contained in collective agreements of the PSCBC. Those agreements form part of the issues in dispute; but the main dispute is not the interpretation or application of a collective agreement.”
Arguments of the respective parties
The Department argues that the SSSBC judgment is directly in point of the case before the labour court. It argues that the dispute before commissioner Maritz was whether the Department’s refusal of Ms Liebenberg’s application for TIL was unfair. The provisions of the collective agreement only had to be interpreted and applied in deciding that dispute. Therefore, the Department argues, the bargaining council did not have jurisdiction.
The PSA has submitted that the dictum in SSSBC should be narrowly construed so as to avoid the situation where most disputes concerning the application of a collective agreement are rendered nugatory.
It submitted that the clear purpose of s24 is to resolve disputes where a party is in breach of a collective agreement by failing to apply its terms, either correctly or at all.
Even though the union would be limited to a finding by the arbitrator that the Department had breached (or failed to apply) the collective agreement and a declaratory order that the Department should comply or rectify its non-application, that should not deprive the bargaining council of jurisdiction altogether.
Gcaba judgment and similar case law
This line of argument appears to the labour court to be consistent with the approach of the constitutional court in Gcaba v Minister for Safety and Security (2010) 31 ILJ 296 (CC).
The constitutional court pointed out that what ultimately determined the jurisdictional divide was the manner in which the dispute was pleaded (that is, the cause of action relied upon) and the nature of the relief sought.
Jurisdiction is determined on the basis of the pleadings, as the constitutional court held in Chirwa v Transnet 2008 (4) SA 367 (CC); (2008) 29 ILJ 73 (CC), and not the substantive merits of the case. A similar point was made by Nugent JA in Makhanya v University of Zululand 2010 (1) SA 62 (SCA):
“ [T]he claim that is before a court is a matter of fact. When the claimant says that the claim arises from the infringement of the common law right to enforce a contract, then, that is the claim, as a fact, and the court must deal with it accordingly. When the claimant says that the claim is to enforce a right that is created by the LRA, then, that is the claim that the court has before it, as a fact. When he or she says that the claim is to enforce a right derived from the Constitution, then, as a fact, that is the claim. That the claim might be a bad claim is beside the point.
 We know this [that is, what the claim is] because that is what it says in the particulars of claim. Whether the claim is a good one or a bad one is immaterial. Nor may a court thwart the pursuit of the claim by denying access to a forum that has been provided by law.”
Application of the above principles to the facts in casu
In the present case, the applicants formulated the claim before the bargaining council as one concerning the application of Resolution 7 of 2000. If that was the true nature of the dispute, the bargaining council had jurisdiction to consider it. The judgments in City Parks and SSSBC must also be reconsidered in the light of the more recent decision of the labour appeal court in De Bruyn. It is the opinion of the court that the De Bruyn judgment is directly in point with the current one. The PSA also acted on behalf of its member, De Bruyn who applied for temporary incapacity leave. The employer approved TIL for one period and disapproved it for another period.
He referred an unfair labour practice dispute to the SSSBC. However, the dispute was not pursued and remained unresolved. The PSA then approached the labour court for the review and setting aside of the employer’s decision to disapprove the application for TIL in terms of s158(1)(h) of the LRA.
The labour court held that temporary incapacity leave is governed by the provisions of a resolution of the PSCBC which is a binding collective agreement. The appropriate forum to challenge the decision of the employer refusing the employee temporary incapacity leave, the court held, was the bargaining council. It also expressed the view that the cause of action for the applicant (the PSA on behalf of its member) rested in the application and/or interpretation of the provisions of the PSCBC resolution.
On appeal, Mlambo JP considered sections 158(1)(h) and 24 of the LRA and concluded: “ The appellant’s complaint clearly concerns the denial of incapacity leave. The alleged right the appellant seeks to assert derived from the provisions of the PSCBC resolution as the labour court, correctly in our view, found. The resolution deals with leave of absence and what steps an employee should take in case of a dispute arising regarding attendant matters. There is no doubt that the aspect of leave of absence is an issue falling squarely under the PSCBC resolution. In deciding whether the relief sought ought to be granted, the court a quo had to have regard to the provisions of the resolution.
 Therefore, the court a quo – correctly proceeded to consider whether the LRA required the kind of dispute which existed between the appellant and the respondent to be resolved through arbitration. The court concluded that leave, including incapacity leave and temporary incapacity leave at the respondent’s organisation, is governed by the provisions of Resolution 5 of 2001 of the PSCBC which is a binding collective agreement. This means that the dispute between the parties was required to be submitted to arbitration, as it concerned the application and/or interpretation of the provisions of the PSCBC resolution.
 It follows therefore that where an employee – is dissatisfied with a decision by the employer with regard to the issue of leave of absence – his remedy lies in the provisions of the resolution. It follows that the appellant is confined to its remedy in terms of s24 of the LRA.”
The labour court held that the above dictum is directly applicable to the facts of the matter before it and that it is bound by that decision. The De Bruyn judgment makes it clear that, in a case such as the current one, where the employee and her union are dissatisfied with the employer’s refusal to grant temporary incapacity leave, and the procedure for granting or refusing TIL is governed by the collective agreement of the bargaining council, her remedy lies in the referral of a dispute over the application of the resolution to the bargaining council in terms of s24 of the LRA.
The labour court also took into account that De Bruyn is the most recent decision of the labour appeal court on this point. For the reasons set out above, and given the judgement in De Bruyn and the principle of stare decisis, the labour court held that the bargaining council did have jurisdiction to entertain a dispute over the application of Resolution 7 of 2000 in terms of s24 of the LRA. The dispute was remitted to the bargaining council to convene an arbitration hearing on the merits.
Dr Brian van Zyl is a Director at labour law firm Van Zyl Rudd and Associates, www.vanzylrudd.co.za.
This article appeared in the July 2015 issue of HR Future magazine.