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Sneller Verbatim/rm

IN THE LABOUR COURT OF SOUTH AFRICA

BRAAMFONTEIN CASE NO: JR17/01

2003-03-24

In the matter between

WASHINGTON M TWALA Applicant

and

CCMA Respondent

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J U D G M E N T

________________________________________________________________

BARRIE, A J.:

[1] This is a review application of a ruling ("the ruling") that the second respondent ("the Commissioner") issued in relation to an unfair dismissal dispute that the applicant ("Mr Twala") had referred for conciliation to the first respondent ("the CCMA").

[2] In terms of the ruling the Commissioner, acting in terms of Section 191(2) of the Labour Relations Act 66 of 1995 ("the LRA"), refused to condone Mr Twala's late referral of the dispute for conciliation. The referral was apparently made fifteen days beyond the thirty day time limit imposed in terms of Section 191(1) of the LRA.

[3] The Commissioner provided comprehensive reasons for her ruling.

[4] She was obviously cognisant of the fact that a fifteen day delay was prima facie not an undue delay. She was however critical of the reasons that Mr Twala had proffered for the delay.

[5] It is evident that the Commissioner was aware that the dispute that Mr Twala had intended to refer for conciliation, not only related to an alleged unfair dismissal, but also to Mr Twala's claims for, inter alia, leave pay, severance pay and unpaid travelling expenses.

[6] The Commissioner concluded that the CCMA had jurisdiction to address only the unfair dismissal dispute. On the basis of the papers before her, she concluded that Mr Twala's prospects of success regarding this dispute were poor. She according refused condonation.

[7] The Commissioner was quite correct that the CCMA could not entertain claims for leave pay and unclaimed travelling expenses. However, she was wrong as regards the severance pay claim.

[8] What the Commissioner had apparently lost sight of was that Mr Twala had in the papers before her indicated that he had been in the third respondent's employ since 1997 in terms of successive fixed term contracts.

[9] Although there was a clause in the last fixed term contract that purported to rule severance pay out, that is not decisive. If there had been "continuous service"' as intended by Section 41(2) of the Basic Conditions of Employment Act 75 of 1997 ("the BCEA") there was an obligation to pay severance pay.

[10] Mr Twala had expressly stated in the papers that he believed that he was entitled to severance pay in terms of Section 41 of the BCEA. A dispute about that entitlement was something that the CCMA could entertain in terms of Section 41(6) of the BCEA. Moreover, the thirty day time limit that applies in terms of Section 191(1) of the LRA, does not apply to Section 41 of the BCEA.

[11] I cannot fault the Commissioner on the remainder of the ruling. However, the effect of the ruling was to bar Mr Twala's access to the CCMA for relief in terms of Section 41 of the BCEA.

[12] There is no prescribed time limit for a referral in terms of Section 41(6) of the BCEA. A referral has accordingly to be made within a reasonable time. There was an and can be no suggestion that Mr Twala's referral of the severance pay dispute did not occur within a reasonable time.

[13] The upshot is that I cannot review the ruling. It was intended only to relate to the unfair dismissal dispute. However, I intend to issue an order confirming Mr Twala's right to pursue the severance pay dispute in the CCMA.

[14] Such an order will constitute a fair measure of success for Mr Twala. The fact that the review application is unsuccessful, accordingly, does not carry an implication that he should be liable for the third respondent's costs.

[15] The order that I make is:

1. The review application is dismissed.

2. The CCMA is directed to attempt to resolve the dispute that the applicant referred to it on 11 September 2000, under case number GA110750, through conciliation, but only in respect of the applicant's claims that he was entitled to severance pay from the third respondent.

3. If the dispute cannot be resolved through conciliation, the applicant shall have the right, in terms of Section 41(9) of the Basic Conditions of Employment Act 75 of 1997 to refer the dispute to arbitration.

4. There shall be no costs order.

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F G BARRIE

Acting Judge of the Labour Court

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