Work In Solutions

Case Number: D 412/07

Judgment Date: 09 June 2009

Jurisdiction: Labour Court, Durban

Judge: Van Niekerk J

Subject: Review

CCMA Arbitration

Issue: Certificate of outcome did not constitute a jurisdictional ruling.

Summary of Facts: The employee was employed by Kishara CC t/a Mugg and Bean Suncoast as a general manager and was also a member of the CC. After a disagreement between the members of the CC, the business (Mugg and Bean Suncoast) was sold as a going concern to Silver Meadows Trading 99 (first Respondent), the new Employer. The employee referred a dispute to the CCMA alleging he had been constructively dismissed, because the new employer had declined to offer him employment as before. The employee never resigned. At conciliation the dispute remained unresolved, and the commissioner indicated the nature of the dispute as ‘unfair dismissal’ – section 197 and section 187(1)(g) of the LRA and indicated that the dispute should be referred to the LC. The employee contended that his dismissal was not an automatically unfair dismissal and the matter was set down for arbitration. The arbitrating commissioner ruled that the CCMA was functus officio.  It did not have jurisdiction to arbitrate and the matter could only be referred to the LC.

Summary of Judgment: The court held that applicable principle in this case was that a referring party was not bound by a commissioner’s classification of a dispute or any directive as to its destiny. If this were not so and if some legal significance were to be attached to a commissioner’s categorisation of a dispute in a certificate of outcome, then by electing the forum in which the dispute is to be determined, the commissioner could deny the referring party the freedom to pursue her rights as she deemed fit.  Certificates of outcome are issued without evidence regarding nature of the dispute. The court was of the view that the conciliating commissioner is not always well-placed to make judgments, based only on the say-so of parties during conciliation. Consequently the certificate of outcome should not be binding on the referring party.  In light of the above the court held the certificate of outcome did not amount to a jurisdictional ruling.  The ruling that the parties were bound by the certificate of outcome was grossly irregular and not a conclusion a reasonable decision maker could come to.  The commissioner’s ruling that the CCMA was functus officio was reviewed and set aside and the matter was remitted to the CCMA for an arbitration hearing de novo.