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Pillay v NBCCI & others

Procedure: Jurisdiction of Bargaining Council in retrenchment dismissal

Tue, 04 Dec 2007 11:16

Issue:

The Employee had been retrenched and referred a dispute to the bargaining council. After conciliation a certificate of outcome was issued.At arbitration the Employer challenged the jurisdiction of the BC.

The Labour Court held that the arbitrator should not have entertained this point until such time as the certificate had been reviewed and set aside.

Summary of Facts:

The Employee, who prior to his dismissal was employed as a credit manager and worked his way up through to the higher ranks and held the position of a senior customer service manager, was dismissed for operational reasons. He then referred a dispute to the BC. At conciliation the matter was not resolved and a certificate of outcome was issued.

The Employee referred the matter for arbitration as per the certificate and at arbitration the Employer contended that the Employee's dismissal for reasons of operational requirements was part of the total restructuring of its business which included some 84 employees being dismissed for operational requirements. As a result the arbitrator ruled that he had no jurisdiction to arbitrate the matter.

Summary of Judgement:

The court held that where a dispute about fairness of a dismissal had been referred to the CCMA or the bargaining council and a certificate of non-resolution of the dispute has been issued in terms of section 191(5), the CCMA or the bargaining council as the case may be has jurisdiction to arbitrate the dispute.

The jurisdiction acquired as a result of the certificate of outcome will cease only once the certificate is reviewed and set aside.

Because of the consequences that arise from the certificate of outcome, the challenge to its validity must be brought within a reasonable time. In this case the Employer did not raise the issue of jurisdiction at conciliation stage.

The Arbitrator should have held that, as the certificate had not been reviewed and set aside, he had jurisdiction to arbitrate the matter.

In addition to this, the dispute between the parties in this matter evidently required that oral evidence concerning the dispute about the number of employees who were affected be heard. Failure to require oral evidence deprived the Employee of a proper opportunity to show that the BC had jurisdiction to arbitrate the dispute.

The ruling was set aside and the matter was referred back to the BC for arbitration before another Arbitrator.

The Employer was ordered to pay the cost of the application.