By Sarah McGibbon on 1 May 2014

This case is an appeal against the judgment of Coppin AJA in the Labour Appeal Court (“LAC“).  The primary questions to be considered by the Constitutional Court are (i) whether the LAC has the power to decide grounds of review that were not fully canvassed by the Labour Court; (ii) whether the arbitrator should have found that he did not have the jurisdiction to arbitrate the dispute; and (iii) whether the decision of the LAC to confirm the arbitrator’s award was correct.

In this case, Jongikhaya Chris Sinuko (“Sinuko“) was employed by Powertech Transformers DPM (“Powertech“) as a tank fitter in its engineering business.  After an incident on 15 June 2009 in which he allegedly threatened Johnson (his supervisor and a member of a different trade union), Sinuko was charged with two counts of misconduct; namely, gross insubordination and physically threatening a supervisor.  He was found guilty on both counts and dismissed on 29 September 2009.

NUMSA referred an unfair dismissal dispute to the Metal and Engineers Industries Bargaining Council (“MEBC“) for conciliation on behalf of Sinuko.  A certificate was issued declaring the dispute unresolved and the matter was referred to arbitration before Daniel Du Plessis (“the arbitrator“).

The arbitrator found that the employment relationship had not broken down, and ordered Powertech to reinstate Sinuko on the same terms and conditions as previously subject to a final written warning being given to Sinuko due to the “threatening behaviour” (this was the correct sanction in terms of Powertech’s disciplinary policy).

Powertech then brought an application in the Labour Court to review the award on grounds that appeared to relate only to the merits: no grounds were raised as to the arbitrator’s jurisdiction to hear the matter.  However, it appears from the Labour Court’s judgment that, at the hearing, Powertech contended that the real reason for Sinuko’s dismissal was union victimisation and, therefore, the arbitrator ought to have referred the matter to the Labour Court.  The Labour Court referred to, among others, Cusa v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC) and found that the arbitrator’s failure to refer the matter constituted a gross irregularity as contemplated in section 145 of the Labour Relations Act 66 of 1995 (“LRA“).  It then remitted the matter back to the MEBC for determination by a different arbitrator.  This finding was then appealed to the LAC by NUMSA.

The LAC found that the Labour Court misapplied the principles of the cases to which it referred, and that it had erred in finding that the arbitrator should have referred the matter to the Labour Court, as there did not appear to be any evidence supporting the contention that union victimisation was the reason behind Sinuko’s dismissal.  The LAC was of the view that the arbitrator’s decision on the reason for the dismissal was justified and one that a reasonable decision-maker could have made.  In addition to this, Coppin AJA found that the Labour Court’s decision remitting the arbitrator’s decision back to the MEBC was incorrect, and upheld NUMSA’s appeal on this ground.

With regard to the question of whether the LAC has the power to consider grounds of review not fully canvassed at the Labour Court level, the Constitutional Court case of Bruce and Another v Fleecytex, Johannesburg CC and Others 1998 (2) SA 1143 (CC) (in which it was stated that it is not necessarily in the interests of justice for appeal courts to sit as courts of first and last instance, and that there is a likelihood that a decision will be correct if it has been considered by more than one court).  Coppin AJA found that the powers granted to the LAC under section 175 of the LRA (which empowers the Judge President to direct that the LAC hear any matter before the Labour Court as a court of first instance) must be sparingly exercised and reserved for exceptional circumstances.

He then went on to compare the powers of the Supreme Court of Appeal (“SCA“) with those of the LAC, and found that the LAC’s powers derive, ultimately, from the Constitution but also from section 174 of the LRA, which is almost identical to the provisions empowering the SCA.  As such, the LAC and SCA have virtually the same statutory powers on appeal, save that the powers of the LAC are confined to appeals from the Labour Court.  As the SCA’s powers have been interpreted to include auxiliary matters and not only matters arising from the appeal itself, Coppin AJA held that the LAC has the same power as that exercised by the SCA in respect of auxiliary matters by virtue of the identical wording in the respective empowering provisions.

The LAC therefore found that it was legally competent to finalise a matter on appeal before it and not remit it to the Labour Court if (i) there has already been an inordinate delay in finalising the matter; or (ii) its remittal would entail a further long delay and further costs; or (iii) if there was a reasonable possibility of a miscarriage of justice occurring due to the remittal.  It further held that a departure from the general rule contemplated in Fleecytex is exceptional and depends on whether the interests of justice and convenience would be best served by the appeal court finalising the matter.

Coppin AJA was of the view that, in this case (which has been running since the incident in 2009), referring the matter back to the Labour Court would just compound the already inordinate delay in the finalisation of the matter, and that the interests of justice would be best served if the LAC finalised the matter itself.

The questions and findings detailed above will be before the Constitutional Court for determination on 12 May 2014.

[Note: At the time of posting, neither the applicant’s nor the respondents’ submissions were available to the author.  This post will be updated with a summary and analysis of these submissions if they become available prior to the hearing on 12 May 2014.]