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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT DURBAN

Case Number: D228/98

In the matter between

T E Ngcobo Applicant

and

KwaZulu-Natal Health Services Respondent

JUDGMENT

LANDMAN J

[1] Thandu Edna Ngcobo, who was employed by the KwaZulu-Natal Health Services, to work at Greys Hospital, has filed a statement of case. It is common cause that she was a public servant. She seeks relief from this Court in the form of a finding that her dismissal, for reasons relating to misconduct, was unfair. The KwaZulu-Natal Health Services alleges that this Court does not have jurisdiction to entertain her claim.

[2] Before proceeding further it is necessary that I should say something about the relevant law, and particularly the law which prevailed immediately prior to the coming into operation of the Labour Relations Act 66 of 1995.

[3] In 1994 the Public Service Labour Relations Act was promulgated. It made provision for public servants to refer certain disputes to the Industrial Court, established by the Labour Relations Act 28 of 1956. The Public Service Labour Relations Act was repealed and replaced anew by the Public Service Labour Relations Act, 1994, which was promulgated by proclamation 105 in the Government Gazette.

[4] The latter Act repeated, in essence, the provisions of the former Act. On the 11th of November 1996 the Labour Relations Act of 1995 came into operation. This Act introduced a new labour law dispensation and was expressly made applicable to persons who had previously been excluded from the Labour Relations Act of 1956 including, inter alia, public servants such as the present applicant.

[5] The position of public servants is dealt with in the Labour Relations Act of 1995 in two ways. In the first place, they are to be treated in the same way as private sector employees. In the case of an alleged unfair dismissal they are to refer their dispute to the Commission for Conciliation and Arbitration until such a time as the Bargaining Council for the Public Service is established. The CCMA is to attempt to conciliate the dispute and, if that cannot be achieved, disputes relating to conduct are to be arbitrated by the CCMA. Other disputes, for instance unfair dismissals relating to operational requirements, are to be referred to the Labour Court.

[6] In the second place, the Labour Relations Act of 1995 provides, in schedule 7, item 15, that there is deemed to be a collective agreement in the public service. This collective agreement is the Public Service Labour Relations Act of 1994, as introduced by proclamation, read together with certain changes set out in item 15 of the 7th schedule. This is to be done notwithstanding the repeal of the Public Service Labour Relations Act.

[7] This collective agreement, once the insertions and deletions have been made, provides that a dispute of right as referred to in clause 18(1), where it has not been conciliated, but where an application for a conciliation board has been made, or where conciliation has failed, must be dealt with by the Labour Court.

[8] This clause is not entirely unambiguous. Although this Court is referred to in clause 18(10)(a) as amended, clauses 18(1)(a)(c) and (d) and clause 18(11)(b) still make reference to the Industrial Court. However, I think this matter can be decided by determining what a dispute of right is. If there is a dispute of right, it is to come to the Labour Court, and presumably the other references to Industrial Court should be read as also being amended to refer to the Labour Court.

[9] The collective agreement does not say what a dispute of right is. The term formerly referred to an unfair labour practice. That would have been a dispute of right. But this collective agreement must be read in terms of the Act giving birth to it, namely the Labour Relations Act of 1995.

[10] That Act deals with disputes of right and disputes of interest. A claim regarding an unfair dismissal is a dispute of right. As I have already indicated, the Act decides how those disputes of right are to be dealt with. Those dealing with misconduct are to be dealt with by the CCMA and certain others are to come to the Labour Court.

[11] Even if I accept that this is a proper interpretation of the collective agreement, it must be borne in mind that generally speaking, a collective agreement, even if it were to have the status of delegated legislation, which may or may not be the case here, may not validly confer jurisdiction on a Court of law.

[12] In the circumstances, It would seem to me that this dispute must be dealt with by having it arbitrated by the CCMA.

[13] In terms of section 158(2), instead of merely dismissing this application on the grounds of lack of jurisdiction, this Court is entitled to stay the proceedings and order that the dispute be referred to the CCMA. That is the course of action which I intend following.

[14] Consequently, the proceedings introduced in this Court under case No. D228/98 are hereby stayed and the dispute is referred to the CCMA for conciliation and, if that fails, arbitration. The CCMA is also directed to give priority to this matter and to conciliate and, if necessary, arbitrate it with all due despatch.

[15] I do not think that in this particular circumstance, particularly having regard to the novel point and the ambiguity of the collective agreement, the applicant should pay costs. Accordingly there will be no order as to costs.

A A LANDMAN

Judge of the Labour Court

DATE OF HEARING: 12 November 1998

DATE OF JUDGMENT: 13 November 1998

For the Applicant: Mr Nxumalo of the Unemployed Workers Union

For the Respondent: The State Attorney

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