Categorisation of a dispute

It happens that an employer receives a referral of a dispute, and that the referral does not disclose a cause of action (reason). Or that the cause of action (reasons) on the request for arbitration differs from those on the referral of the dispute.

The following case should be taken note of.

The applicant in Strautmann v Silver Meadows Trading 99 (Pty) Ltd t/a Mugg and Bean Suncoast and Others [2009] 10 BLLR 1007 (LC) was employed by Kishara CC t/a Mugg & Bean Suncoast as a general manager. After a disagreement with the members of the close corporation that employed him (of which he was also a member) the business of the close corporation was sold as a going concern to the first respondent. The first respondent contended that it was a condition of the sale that Strautmann would withdraw from the business and that he would not be involved in the business going forward.

Strautmann, on the other hand, contended that he was dismissed and that he was not aware of the reason for his dismissal. He contended, however, that his dismissal was not related to the transfer of the business. He referred a dispute to the CCMA. The conciliating commissioner, a Mr Vedan, issued a certificate recording that the dispute had remained unresolved. He ticked the box indicating that the nature of the dispute concerned an ‘unfair dismissal’ and added, in handwriting, ‘section 197 transfer of company as going concern’ and ‘automatically unfair dismissal in terms of s 187(1)(g) of LRA’. Vedan further indicated that the dispute should be referred to the Labour Court.

Strautmann was of the view that his dismissal did not relate to the transfer and was not automatically unfair – he contended that he was dismissed for an unknown reason. He accordingly referred the dispute to arbitration. At arbitration, the respondents raised a number of points in limine, including that the dispute ought to have been referred to the Labour Court as per the certificate. The arbitrating commissioner thereupon issued a ruling in which she held that Commissioner Vedan had previously ruled that the CCMA did not have jurisdiction to determine the matter, that the CCMA was functus officio and that the matter could not be arbitrated at the CCMA.

Strautmann took this ruling on review to the Labour Court. The court, per Van Niekerk J, held that the certificate of outcome had no legal significance other than to confirm that the dispute remained unresolved. The indication that was given as to which forum or courses of action might be open to the applicant was therefore nothing more than gratuitous advice. An applicant was accordingly not bound by the classification of a dispute on the certificate of outcome.

Furthermore, when the commissioner ticks a particular box on the certificate, he does not make up a ‘jurisdictional ruling’. To the extent that the arbitrating commissioner held that Vedan made a jurisdictional ruling when he completed the certificate of service, she committed a reviewable irregularity. The ruling was reviewed and set aside and the matter was referred back to the CCMA.