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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

REPORTABLE JS 331/04

In the matter between:

DR MALCOLM NAUDE APPLICANT

And

MEC FOR THE DEPARTMENT OF HEALTH

AND SOCIAL SERVICES, MPUMALANGA

PROVINCE RESPONDENT

­­­­­­­­­­­­­­­­­

JUDGMENT

Cele AJ

Introduction

[1] This is an application in terms of section 158 (1) (a) of the Labour Relations Act 66 of 1995 (the Act) for a declarator whether or not the dispute between the parties was resolved in consequence of the issue of an arbitration award made by an Arbitrator under the auspices of the Public Health and Welfare Sectoral Bargaining Council in this matter on 20 April 2004.

Background Facts

[2] On 1 June 2000 the applicant commenced employment with the Department of Health, Mpumulanga, (the Department) as a Community Services Doctor for a fixed period of one year ending on 31 May 2001. He was stationed at Rob Ferreira Hospital, Nelspruit (the Hospital). The Department appointed all Community Service Doctors for a fixed period of one year. Where there was a vacancy for a Medical Officer in the Department, a Community Service Doctor could be employed against such a post. The parties are in dispute as to how translation of such employment was given effect to.

[3] On his appointment, the applicant reported to a Senior Superintendent of the Hospital, Dr Thys Van Mollendorf. According to the applicant, he wished to remain at the Hospital after the completion of his community service and to translate his post to one of a Junior Medical Officer. The applicant’s version was that towards the end of March or beginning of April 2001, he completed forms for the translation of his rank, believing that it was always the practice of the Department, so to translate, if there was a vacant post. He said that he made a second application for unpaid six months’ leave in order to work temporarily overseas from June 2001. He averred that in May 2001 both of his applications were approved by the Department. He was to resume his duties with effect from 1 January 2002.

[4] The case of the respondent is that it bore no knowledge of the desire of the applicant to remain at the Hospital. It also denied the existence of a standard practice of the conversion of positions of Community Service Doctors to Medical Officers. It averred that there would have to be an application for such a translation. The application would be considered together with all other applications received, when a vacant post was available and was to be filled. The respondent denied the receipt of the application for such translation from the applicant and the receipt of a six months’ leave without pay.

The Greater Nelspruit Rape Intervention Project (GRIP)

[5] According to the applicant, in early 2000 the Hospital staff, the South African Police Services (SAPS) and the Greater Nelspruit Intervention Project (GRIP) became jointly involved in running a rape crisis centre. It was to be a “one stop” service to rape survivors where they could be managed in a relatively private, safe and clean environment thus facilitating a quicker and better service for such patients. Antiretrovirals were supplied to the patients as part of a pack and conception prevention pack.

[6] On 9 May 2001 the respondent initiated legal proceedings against Grip to evict the organisation from the premises it occupies at the Hospital. The applicant said that he deposed to a supporting affidavit in addition to the answering affidavit opposing the respondent’s eviction application. According to him circumstances relating to his employment with the respondent thereafter took a change for the worse. According to the applicant, while he was on six months unpaid leave in the United Kingdom, the respondent terminated his contract of employment. He instructed attorneys to investigate his position with the respondent. When he could not be furnished with a satisfactory response, his attorneys referred a dismissal dispute to the Public Service Co-ordinating Bargaining Council (PSCBC). It was an incorrect referral as it should have been referred to the Public Health and Welfare Sectoral Bargaining Council (PHWSBC). The subsequent referral to the PHWSBC was accompanied by an application for condonation due to the lateness thereof. Initially the condonation application was dismissed on 31 July 2002. The applicant successfully applied to rescind the condonation ruling and condonation was granted on 11 August 2003. When granting condonation arbitrator Mr Ramabulana said the following:

“In this respect I grant condonation for the late referral of the dispute. I also order the council to set the matter down for arbitration as soon as is conveniently possible.”

The notice of setdown dated 3 February 2004 invited the parties to attend a conciliation hearing on 13 February 2004 for an alleged unfair dismissal. The dispute was conciliated on 13 February 2004 but remained unresolved and a certificate of outcome was issued on the same date.

[7] On 20 April 2004 an arbitration hearing was convened in this matter. A Mr Chambale appeared for the respondent before Mr Z. S Sibeko as the arbitrator of the PHNSBC. There was no appearance by or for the applicant. At the instance of Mr Chambele the matter was dismissed in terms of section 138 (5) (b) of the Act. On 12 May 2004 the applicant referred a dismissal dispute to this court by means of a statement of claim. It is on the strength of the arbitration award that the respondent, in the course of a pre trial conference held by the parties raised as a point in limine the issue that the dispute had been resolved between the parties. Under the heading “Issue to be decided by Court” in their pre trial minute, the parties agreed to frame the questions whether or not the dispute was resolved in consequence of the award or ruling made by PHWSBC on 20 April 2004.

Submissions by parties

[8] Mr Scheepers for the respondent submitted that:

• The award in terms of which the referral of an alleged unfair dismissal was dismissed was a final order. That the award was not akin to an absolution from the instance but was similar to a default judgment

• The dispute referred to the Council and the one referred to this Court was between the same parties;

• The applicant claimed the same thing on the same ground-an alleged unfair dismissal;

• The nature of the relief claimed by the applicant in both disputes was compensation for an alleged unfair dismissal; even if the extent thereof differed;

• Consequently the defence res judicata ought to be upheld in favour of the respondent.

• The applicant has known at least since the date on which the response was filed that an award was made, in terms of which the unfair dismissal dispute was dismissed. Despite that knowledge the applicant has not since applied for a rescission or review of the default award which therefore is a final order with legal force and effect.

• The submission by the applicant that the Council lacked jurisdiction, which was not conceded, did not render the award void. At best for the applicant, the defence to the plea res judicata might render the award reviewable.

• The dispute referred by the applicant was dismissed prior to the statement of case being issued in this Court. Therefore no dispute was in existence between the parties at the time when the applicant issued a statement of case.

• The need for finality in disputes will be dealt a mortal blow if, irrespective of failure to attend an arbitration hearing and irrespective of the result in the CCMA or Council with jurisdiction, an applicant can approach this Court without acting in accordance with the rulings and/or awards made, merely by allegations conferring jurisdictions to this Court.

[9] Mr Lagrange for the applicant on the other hand submitted that:

• The applicant made it clear in his referral and in his condonation application that he believed that he had been dismissed for providing a supporting affidavit in papers opposing the eviction of an NGO from Hospital premises that was assisting rape survivors to obtain antiretroviral treatment;

• In his rescission application he made it clear that his claim was one of automatically unfair dismissal based on unfair discriminations or, and only in the alternative, it was procedurally and substantively unfair;

• With certain limited exceptions, only this Court has authority to adjudicate over a claim of automatically unfair dismissal under section 195 (5) (b) (1) read with section 157 (1) of the Act.

• One of the exceptions to the exclusive jurisdiction of this Court to determine such disputes is that the CCMA may arbitrate a dispute over which this Court has exclusive jurisdiction provided the parties consent thereto in writing, in terms of section 133 (2) (b) of the Act;

• The PHWSBC has no authority to determine by arbitration a claim of automatically unfair dismissal, even if the parties consent thereto.

• The submission that the arbitration award renders the matter res judicata is without foundation, firstly because the applicant did not refer the matter to arbitration by the PHWSBC. It was set down without a request by him. Secondly, it is a well established exception to the res judicata rule that if the prior decision which is relied on, in this case, the award, was a decision of a forum which had no jurisdiction to determine the dispute raised in the subsequent forum, then the rule does not apply.

• To refer a dispute over an automatically unfair dismissal to this Court, that dispute ought to have been conciliated prior to the referral. It was conciliated and accordingly this Court has jurisdiction to hear the disputed without the applicant first having to rescind or review the award.

Analysis

[10] Both parties have correctly submitted that the principles of the doctrine of issue estoppel or res judicata are applicable in Labour Law disputes – See Dumisani & Another v Mintroad Sawmills (Pty) Ltd (2000) 21 ILJ 125 LAC and National Union of Mineworkers v Elandsfontein Colliery (Pty) Ltd (1999) 20 ILJ 878 (LC). Finality in disputes accords with justice where the pre requisite steps have been taken in the resolution of disputes in appropriate fora.

[11] There are however exceptions to the applicability of the principle enshrined in the res judicata rule. One such exception which Mr Lagrange referred me to is one pertaining to the absence of jurisdiction to determine a dispute by a forum a quo which has the effect of rendering its decision a nullity. See Suid-Afrikaanse Sentral Ko-Operatiwe Graanmaatskappy Bpk v Shifren and Others and the Taxing Master 1964 (1) SA 162 (O).

[12] The decision in the case of Minister of Agricultural Economics and Marketing v Virginia Cheese and Food Co 1961 (4) SA T.P.D 415 provides an informative guide for the issue at hand. In his judgment, Ludorf J placed reliance in the decision of Innes, CJ in the case of Lewis and Marks v Middel, 1904 T.S 291 p 303 to say the following:

“the authorities are quite clear that where legal proceedings are initiated against a party and he is not cited to appear, they are null and void and upon proof of invalidity the decision may be disregarded, in the same way as a decision given without jurisdiction, without the necessity of a formal order, setting it aside.”

[13] With all these authorities in mind, I return to the facts of the case before me. It has always been common cause between the parties that the applicant did not refer his dispute to be arbitrated upon by the PHWSBC. When the matter was scheduled for a hearing on 13 February 2004, the parties were invited only to the conciliation of the dispute. No mention in the notice of set down was made of a con/arb. Therefore the conciliating arbitrator had no authority to schedule the matter for an arbitration hearing. I have taken note that the arbitrator who granted the applicant condonation for the late referral of the dispute for condonation on 11 August 2003 simultaneously ordered the council to arbitrate the dispute. It is probable that the arbitrator who unsuccessfully conciliated the dispute on 13 February 2004 also ordered the council to arbitrate the dispute without waiting for the applicant to initiate that important step, hence his references to section 138 (5) (b) of the Act, when he dismissed it.

[14] Accordingly, in the absence of a referral by the applicant. The PHWSBC had no jurisdiction to arbitrate the dispute in this matter. Moreover, the dispute between the parties was about an automatically unfair dismissal of the applicant. Again, the PHWSBC was devoid of the power to arbitrate the dispute and therefore had no jurisdiction. The decision in the Virginia Cheese case provides sufficient authority that the applicant did not have to first apply for the rescission or review of the arbitration award as a prelude to referring the dispute to this court. In my view, he was entitled to disregard the award and to proceed and refer the dispute.

[15] The following order therefore will issue:

1. The dispute in this matter was not resolved in consequence of the issue of the award or ruling by the PHWSBC.

2. The respondent is ordered to pay costs of this application.

3. The registrar is directed to enrol this matter for trail on notice to both parties, if it shall not have been settled by 31 January 2008.

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Cele AJ

Date of Hearing: 06 December 2007

Date of Judgment: 21 December 2007

APPEARANCES:

For the Applicant: Adv R G Lagrange

Instructed by Aids Law Project

For the Respondent: Adv G J Scheeepers

Instructed by Morgan Attorneys

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