Nelson Mandela Bay Municipality v SAMWU obo Mvuleni Bukula

Mr Bukula was employed by Nelson Mandela Bay Municipality since January 2000 and appointed as manager support services in 2003. In 2007, following organizational restructuring, his designation changed from 'manager' to 'director' on salary grade 18. In December 2013, a TASK (Tuned Assessment of Skills and Knowledge) job evaluation collective agreement was implemented. On 23 May 2014, Mr Bukula received a letter informing him that following the TASK evaluation, his position was redesignated as 'deputy director support services' on task grade 16, but he would remain 'contractual to holder' retaining his existing higher salary. Mr Bukula filed a review application against this outcome only on 19 April 2016 (not within 30 days as required). After various internal processes between 2016-2020, Mr Bukula lodged an internal grievance on 21 February 2020 alleging unfair demotion. On 11 September 2020, he referred an unfair labour practice dispute to SALGBC, more than six years after the May 2014 demotion. The arbitrator ruled she had jurisdiction and ultimately found the Municipality committed an unfair labour practice, ordering reinstatement to senior director grade 20 with retrospective benefits from May 2014 and R500,000 compensation.

• Whether the SALGBC had jurisdiction to adjudicate the unfair labour practice dispute when it was referred more than six years after the alleged demotion
• Whether the 90-day referral period in section 191(1)(b)(ii) of the LRA could be extended by internal grievance processes
• Whether condonation was required for the late referral
• Whether the deponent to an affidavit in motion proceedings must be authorized
• Whether a Rule 7(1) notice disputing authority can be filed outside the 10-day period without leave of court

The arbitration award issued on 7 July 2023 under case no: ECD 092003 was reviewed and set aside. The second respondent's (arbitrator's) ruling was substituted with a ruling that the SALGBC and the arbitrator lacked the necessary jurisdiction to adjudicate Mr Bukula's unfair labour practice dispute. No order as to costs was made.

An unfair labour practice dispute must be referred to the bargaining council within 90 days of the date the employee becomes aware of the act constituting the unfair labour practice as required by section 191(1)(b)(ii) of the LRA. This is a statutory jurisdictional prerequisite. The pursuit of internal grievance procedures does not suspend, extend, or otherwise affect this statutory time period. Where a dispute is referred outside the 90-day period without an application for condonation being sought and granted, the bargaining council lacks jurisdiction to adjudicate the dispute, and any subsequent proceedings and awards are invalid and constitute nullities. The 90-day period cannot be calculated from the date of a grievance hearing or any other internal process - it runs from the date of awareness of the unfair labour practice.

The Court made several observations: (1) It is unfortunate that both parties became victims of the arbitrator's poor judgment and lack of understanding of basic legal principles applicable to disputes she was mandated to adjudicate; (2) The arbitrator's inability to apply the law correctly resulted in lengthy arbitration proceedings with far-reaching consequences and cost implications for both parties; (3) The Court noted that filing a second Rule 7(1) notice the day before the hearing was "nothing but a stratagem to stall the proceedings and to delay the hearing of the matter" and that "the strategy adopted was not well thought through, and it was not sound in law"; (4) The Court observed that it appeared respondent's legal representatives were "wholly unprepared in respect of the proceedings before Court"; (5) The Court commented on the general principle that "litigation is a process in which adversaries make choices" and if those choices or inaction result in forfeited opportunities, "it does follow that there is a failure of justice."

This case reinforces critical principles regarding jurisdictional requirements in South African labour law: (1) Time periods for referring disputes under section 191 of the LRA are statutory prerequisites that go to jurisdiction, not mere procedural formalities; (2) The 90-day period runs from the date the employee becomes aware of the unfair labour practice and is not suspended or extended by pursuit of internal grievance procedures; (3) Failure to comply with statutory time limits requires an application for condonation - without it, the dispute resolution forum lacks jurisdiction; (4) Jurisdictional defects render subsequent proceedings and awards nullities; (5) Courts can raise jurisdictional issues mero motu on review even if not pleaded as grounds; (6) The test on review of jurisdictional findings is correctness, not reasonableness; (7) The importance of expeditious resolution of labour disputes as a primary object of the LRA. The case also clarifies that Rule 7(1) notices disputing authority must be filed within 10 days or with leave of court on good cause shown, and that only attorneys need be authorized, not deponents to affidavits.