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[2020] ZALAC 10
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Adams v National Bargaining Council for the Freight and Logistics Industry and Others (CA2/2019) [2020] ZALAC 10; [2020] 9 BLLR 867 (LAC); (2020) 41 ILJ 2051 (LAC) (18 May 2020)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case no: CA2/2019
In
the matter between:
REVON
ADAMS
Appellant
and
NATIONAL
BARGAINING COUNCIL FOR THE
FREIGHTAND
LOGISTICS INDUSTRY
First
Respondent
AE
ANDREWS NO
Second
Respondent
ABIES
TRANSPORT SERVICES CC
Third
Respondent
Heard:
25 February 2020
Delivered:
18 May 2020
Coram:
Davis, Sutherland JJA and Murphy AJA
JUDGMENT
SUTHERLAND
JA
[1]
This is a case about the significance of who signs the prescribed
form to refer a
dispute to conciliation and then to refer that
dispute to arbitration under the auspices of the Bargaining Council
for the Road
Freight and Logistics Industry (the Council). The
appellant, Adams, the aggrieved dismissed employee, did not
personally sign the
referral to conciliation or to arbitration; his
attorney did so. This formed the ground of a challenge by the
employer, Abies Transport
Services, the third respondent, to the
jurisdiction of the Council. The arbitrator upheld the point and
dismissed the application
for want of jurisdiction. On review, the
Labour Court endorsed the arbitrator’s ruling. This appeal,
which is not opposed,
addresses this sole issue.
[2]
The critical common cause facts are these:
2.1
Adams was dismissed for misconduct.
2.2
A referral to the council to conciliate the alleged unfair dismissal
dispute was signed
by his attorney.
2.3
A conciliation meeting was convened on two occasions. Adams appeared
alone in these proceedings.
Abies Transport did not appear and
conciliation therefore failed. It must be inferred that the time
elapse of 30 days kicked in.
No protest was noted about the referral
to conciliation being signed by a person other than the aggrieved
employee.
2.4
A referral to arbitration was signed by Adams’ attorney.
2.5
An arbitration hearing was convened. Adams appeared alone. Abies
Transport appeared and
raised a point
in limine
that the
council had no jurisdiction because rule 6.1 of the Council rules had
not been complied with. That rule reads:
‘
A
document that a party must sign in terms of the Act or these rules
must be
signed by the party or by a
person entitled in terms of the Act or these rules to represent that
party in the proceedings.’
(underlining supplied)
2.6
The Ruling of the arbitrator reads:
‘
The
point
in limine
is upheld. The dispute had been referred to the Bargaining Council
by
a person other than the employee, and such person does not have a
right to represent him at the hearing
.
The referral is procedurally irregular and as a consequence the
Bargaining Council does have jurisdiction to hear this matter.
The
employee is at liberty to refer the matter again, in a procedurally
compliant manner, to the Bargaining Council and to argue
for
condonation should he wish to proceed further with the dispute.’
(underlining supplied)
[3]
On review, the judgment of the Labour Court concluded thus:
‘
[27]
In my view, a proper and authorised signature on a
referral document must be subject to the same kind of
considerations
as set out in
[Numsa v Intervalve
(2015) 36 ILJ 363 (CC)]
relating
to service of that very same document. It is significant that it is
found in the same part of the Rules dealing with service
as well. The
actual signature by the party making the referral signals the
authorisation of the bringing of the process, and then
the
participation in the proceedings by such referring party. It is like
a proper mandate to sue. There can be no doubt that signatures
on
such kind of documents have a critical role to play. In
Librapac
CC v Moletsane NO and Others
(1998) 19
ILJ 1159 (LC) at para 55, the Court held:
‘
The
applicant has submitted further that, of those 16, only one has
signed the referral and that he was therefore the only employee
who
was properly part of the conciliation and properly part of the
subsequent arbitration. There is considerable force in that
submission. To have certainty about parties to a dispute resolution
mechanism, which begins with conciliation and which may potentially
end in the Labour Appeal Court, is a necessary part of the process.
It does not impose an overly technical or legalistic obstacle.
All
that is required is a clear schedule containing each person’s
full names, his or her address, and a signature to record
that
person’s wish to be party to the steps being taken…’
[28]
The signature of a referral document by any person not entitled to do
so, is just the same as
no signature at all. Such a defective
signature, which is for all intents and purposes invalid, has no
legal consequence or significance.
It is trite that unsigned
pleadings are valid.
[29]
This Court has dealt with situations where referral documents have
been signed by labour consultants,
who would clearly not be entitled
to represent parties before the CCMA and bargaining councils. In
National Union of Metalworkers of SA v Commission for
Conciliation, Mediation and Arbitration and Others
(2000) 21 ILJ
1634 (LC) at paras 19 - 20, the Court held as follows:
‘…
In the
case of arbitration the same right to be represented applies. In
addition, a legal practitioner, as defined may represent
the
employee. See s 138(4) of the LRA. However, there is no right
permitting a legal practitioner to appear before the CCMA when
it
arbitrates dismissals arising from conduct and capacity. But on
application the commissioner may permit a legal practitioner
to
represent an employee. See s 140(1) of the LRA.
It is clear that a labour
consultant, who has no right of audience before a CCMA commissioner,
may not sign form LRA7.11 nor form
LRA7.13 on behalf of a dismissed
employee.’
[30]
In
Vac Air Technology (Pty) Ltd v Metal and Engineering Industries
Bargaining Council and Others
(2006) 27 ILJ 1733 (LC) at para 14,
the Court dealt with a situation where a labour consultant signed
pleadings in the Labour Court,
and said:
‘…
papers
before the Labour Court signed by a person who does not fall within
the permitted category are null and void, and proceedings
relating
thereto are also null and void.’
The Court concluded:
‘
A
labour consultant is not permitted to represent parties in terms of
the Act. It follows that any affidavits he deposed to or any
correspondence he wrote, in the capacity of a labour consultant
representing a party, are null and void. The proceedings are also
null and void.’
[31]
Even though the Court in
Vac Air
was dealing with pleadings
under the Labour Court Rules, there is in my view no reason why these
same consequences should not equally
apply to invalidly signed CCMA
or bargaining council referral documents, thus rendering the same
null and void. This was recognised
in
Danone Southern Africa (Pty)
Ltd and Another v Commission for Conciliation, Mediation and
Arbitration and Others
[2017] SALCJHB 252 (30 June 2017) at para
39, where the Court held:
‘…
Representation
in the context of Rule 25 does not just include appearing at the
CCMA. It includes all facets of representation,
which would include
the bringing of legal process such as the filing of applications. A
defect in this regard renders the proceedings
so brought, to be
nothing else but an irregular step.’
The Court then
specifically referred to the judgment in
Vac Air
and
concluded:
‘
Whilst
the judgment in
Vac Air
dealt with the Labour Court Rules, I can see no reason why these same
considerations should not equally apply to the CCMA Rules.’
[32]
In
casu
, it was not hard for the applicant to have simply
complied with the Rules. There was no indication or plea on his part
that he
had some or other difficulty or obstacle causing him to be
unable to sign the referral forms. There was no feasible reason for
his attorney signing the forms instead of him. All he needed to do
was just append his signature to the referral forms. His failure
to
do so rendered the referrals to conciliation and arbitration invalid,
and thus null and void. The consequence of this failure
was aptly
described in
Oosthuizen v Imperial Logistics CC and Others
(2013) 34 ILJ 683 (LC) at para 14, as follows:
“
In
a line of decisions starting with
Rustenburg
Platinum Mines Ltd (Rustenburg Section) v CCMA & Others,
this
court (and following it the CCMA) has found that the failure by the
referring party personally to sign a referral to conciliation
constitutes a material defect which deprives the CCMA (and a
bargaining council) of the jurisdiction to hear the dispute. The
personal signature of a referral form is thus a jurisdictional fact
which must be established before the CCMA or a bargaining council
can
exercise its jurisdiction over the dispute.”
[4]
The controversy, as articulated in the appeal, falls into two parts.
The first is
a textual interpretation of the phrase “entitled
to represent”, in which the thrust is that Adams’
attorney was
an “entitled representative”. The second is
an argument which assumes the irregularity of the attorney’s
signature
instead of Adams, but upon the authority of
ABC
Telesales v
Pasmans
[2001] 4 BLLR 385
(LAC), contends that
the irregularity can be overcome by the aggrieved employee
participating in the subsequent hearing after the
referral form is
signed.
[5]
As to the interpretation argument, the focus was on the possible
meanings to attribute
to the term “….entitled to
represent….” in order to contrive an “entitlement”
for an attorney
to be in a class of persons so “entitled to
represent” a party. I am not convinced that this is fertile
ground, and
in the light of the rationale expressed in this judgment,
it is unnecessary to traverse the semantics of the phrase which, in
its
context, seems pretty clear that what is meant is that only the
party should affix a signature. A related debate took place at the
arbitration on the hypothetical premise that, had Adams made an
application to be represented by a lawyer in the arbitration and
such
application succeeded (ie the attorney would have become “entitled
to represent” him), the controversy might have
been resolved.
In my view, this tack led nowhere. The arbitrator considered the
merits of such a hypothetical application to be
represented by a
lawyer and held, on the facts, that it would have been unsuccessful.
However, more importantly, the hypothesis
could be relevant only to
the odyssey into the mysteries of the phrase “entitled to
represent”, which, as alluded to
above, it is unnecessary to
pursue. The arbitrator’s ruling was premised on the “entitled
to represent” notion,
and in my view, is not in this regard, to
be faulted, as it seems that, at best, an attorney is merely a person
in a class of persons
“eligible” to become entitled
to represent parties before the CCMA or a bargaining council.
[6]
In the debate before the review court and in the appeal hearing, the
fresh contention
was advanced that the decision of this Court in
ABC
Telesales
was authority for the proposition that, where a party
does not personally sign the prescribed form but thereafter appears
at the
convened proceedings, such conduct amounts to a
quasi-ratification which satisfies the need for proof of
jurisdiction.
[7]
The relevant passages in
ABC Telesales
read:
‘
[4]
In terms of section 191(1) of the LRA
“
(i)f
there is a dispute about the fairness of a dismissal, the dismissed
employee may refer the dispute in writing within 30 days
of the date
of the dismissal to –
. . .
(b)
the Commission. . .”
And section
191(4) directs the CCMA to “attempt to resolve the dispute
through conciliation”.
[5]
In terms of rule 5.1 of the rules of the CCMA:
“
A
referral of a dispute for conciliation must comply with regulation
11(2) of the Regulations on LRA Form 7.11 . . . and
must be
signed by the referring party”.
Regulation
11(2) reads in so far as it is relevant:
“
A
referral of a dispute to the Commission for conciliation in terms of
(section). . . 191(1) . . . by the Commission,
must be made in the form of annexure LRA 7”.
It
appears that the form concerned was filled in by the firm of
attorneys acting on behalf of Pasmans and that an articled clerk
in
its employ signed the form as the “Party referring the
dispute”. This, I am prepared to assume, amounted to
non-compliance
with rule 5.1. It is quite clear that after the
dispute had been referred for conciliation, Pasmans and ABC
participated in the
conciliation process and, thereafter, both
participated in the proceedings before the Commissioner.
[6]
The court’s duty in interpreting legislation is, of course,
always to establish the intention of the lawmaker. There is
no
difficulty in discerning the intention of the words in rule 5.1 at
the stage when Form 7.11 is handed to the CCMA.
At that stage the
intention is clearly to provide for the CCMA to reject the form by
reason of it not having been signed by the
referring party. In this
way the possibility of an unauthorised referral is avoided.
However, the referring party’s participation in the
conciliation process without objection renders the requirement of her
signature redundant at that stage
. It follows that the rule-maker
could not have intended the rule to apply once such participation had
occurred and with it, the
ratification of the referral
. This
approach, it seems to me, gives effect to a purposive interpretation
of the rule in accordance with the approach approved
of by this Court
in
Business South Africa v Congress of South African Trade
Unions and another
(1997) 18
ILJ
474 (LAC)
at 479A–B and in
Ceramic Industries Ltd t/a Betta
Sanitary Ware v National Construction Building & Allied Workers
Union
(2) (1997) 18
ILJ
671 (LAC) at 675G–H.
[7]
It follows that with respect the Labour Court in
Rustenburg
Platinum Mines Limited (Rustenburg Section) v CCMA and others
[1997]
11 BLLR 1475
(LC) erred in deciding in effect at 1479H–I
that a referral which was not signed by the referring party himself
remained
invalid beyond the stage of conciliation.’
[8]
From
ABC Telesales
these important considerations are notable:
8.1
First, the core rationale is the divination of the purpose of the
primary injunction that
the form must be signed by the ‘dismissed
employee’ – in the phraseology used in the Council’s
rules -
the “party”. In accordance with the
interpretation of a rule being purposively interpreted, this Court in
ABC Telesales
recognised that the function of the injunction
was to eliminate the risk of unauthorised referrals.
8.2
Second, a failure to adhere strictly to this rule does not unsuit an
aggrieved party for
want of jurisdiction. The conduct of the
aggrieved party subsequent to the irregular signature could render
‘the requirement
of her signature redundant at that stage’.
The reference to that stage was to the proceedings at which the
aggrieved party
appeared and sought to participate as envisaged by
the referral.
[9]
In
ABC Telesales
, of course, there are important factual
distinctions from the present case. In
ABC Telesales
the
employer had, itself, participated fully in both the conciliation and
in the arbitration; in this case the employer did not
participate in
the conciliation and objected only at the arbitration stage. Thus,
the court in
ABC
Telesales
did not have to consider the
implications of an objection at the latter stage.
[10]
However, in my view, that distinction does not serve to distinguish
the decision on the material
issue:
post-signature conduct by the
aggrieved employee
that achieves the purpose of the rule which is
to eliminate the risk of an unauthorised referral. Moreover, no sound
policy consideration
can exist that, under such circumstances, should
impel a court to uphold the absurd result that a party who
demonstrates unequivocally
that he wants his own dispute addressed is
improperly before the tribunal because a formality to eliminate the
risk of an unauthorised
referral was not complied with in the literal
terms of such rule. The appearance of the aggrieved employee in the
arbitration proceedings
is the foundation of the clear proof that the
referral was not unauthorised. The legitimate concern of the Council
to avoid assuming
a jurisdiction it might not have, is addressed.
Seemingly, the decision in
ABC Telesales
was not drawn to the
attention of the arbitrator and she was not called upon to consider
the ratification argument.
[11]
The judgment in the court
a quo
, rejected the import of
ABC
Telesales
. The basis for the rejection was that the ratification
dictum could not be good law because it was supposedly a derivative
decision
based on a dictum in
Fidelity Guards Holdings (Pty) Ltd
v Epstein N O
(2000) 21 ILJ 2382 (LAC), a case that was
concerned with a late referral
.
That decision addressed the
question of whether the validity of a referral to conciliation could
be challenged after a certificate
of non-resolution had been issued.
In
Epstein
it was held to not be possible to do so because the
certificate was a
sine qua non
for jurisdiction to be
established. This notion was addressed tangentially in
SAMWU obo
Manentza v Ngwate Local Municipality & others
(2015) 36
ILJ 2581 (LAC). It held that
Epstein
was wrong insofar as a
certificate of non-resolution casts a blanket on all that went
before. It held further that a breach of
a peremptory requirement to
refer a dispute within a fixed period could not be overlooked for the
purposes of determining jurisdiction.
The key criticism of
Epstein
was that it was wrong to hold that jurisdiction was dependant on the
issue of a certificate of non-resolution at conciliation.
In neither
case was the Court called upon to consider a ratification argument.
[12]
In my view, the
dicta
in these cases do not conflict with the
ratio
in
ABC Telesales
. The policy considerations about
timeous referrals cannot be equated with the utility of a personal
signature by the aggrieved
party to avoid the risk of an unauthorised
referral. A referral out of time cannot be tolerated and requires
condonation to achieve
the purpose of that rule; a signature on the
referral whose sole function is to eliminate the risk of an
unauthorised referral
is not of the same type of injunction.
[13]
In
Oosthuizen v Imperial Logistics CC & others
(2013) 34
ILJ 683 (LC), the Labour Court considered
ABC Telesales
. In
Oosthuizen,
as in
Manentza
, the central controversy was
whether a late referral should be condoned. The referral in question
was a second referral. The first
referral had been rejected by the
Bargaining Council because it was not personally signed by the
aggrieved employee. The case was
decided on the basis that no proper
case for a delay of about a year in respect of the second referral
had been made out. Some
attempt was made in the argument to invoke
ABC Telesales,
but the court rejected the applicability of
that authority to the facts of the case because there was no attempt
by the aggrieved
employee to ratify the first referral. No allusion
was made to
ABC Telesales
having been wrongly decided.
[14]
A second thesis in the Court
a quo
to distinguish
ABC
Telesales,
was to hold that the different facts affected the
force of its import. The critical distinction identified is that the
employer
in
ABC Telesales
participated fully and cried wolf
belatedly. By contrast, the employer here, Abies Transport,
complained at the outset of the arbitration
proceedings. I am
unpersuaded that this distinction is functional to the true
controversy: it is not what the employer did, nor
when it did so, but
rather, what the conduct of the aggrieved employee was that could and
did categorically dispel the risk
of an unauthorised referral.
[15]
In the result, I am of the view that
ABC Telesales
is sound
authority for the appellant’s proposition that the purpose of
the signature rule was achieved by the ratification
of the aggrieved
person’s agent signing the referral. The fact that it was an
attorney who signed it is a non-material fact.
Conclusions
[16]
Although it is highly desirable for good order that rules be complied
with on their own terms,
the function of the rule is the paramount
consideration and, where it can be safely found that the purpose of
the rule is achieved,
it is highly undesirable to approach the matter
in a literalist way. Mechanical thinking is anathema to our law:
cessante ratione legis cessat et ipsa lex.
The objectives of
the
Labour Relations Act 61 of 1995
inform the context of
interpretation and its penumbra of pragmatism. Our law is not an Ass.
[17]
Accordingly, the ruling that there was no jurisdiction ought not to
have been made. It ought
to have been reviewed. The appeal succeeds.
[18]
The circumstances of the matter do not warrant a costs order being
made.
The Order
(i)
The appeal is upheld.
(ii)
The decision of the Labour Court is set
aside and replaced with the following:
“
The
ruling of 5 September 2016 is reviewed and set aside”.
_____________________
Sutherland
JA
Davis
JA and Murphy AJA concur.
APPEARANCES:
FOR
THE APPELLANT: H. Rossouw of Edward Nathan
Sonnenbergs.
No
appearances for the respondents.