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[2020] ZALAC 16
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Cold Chain (Pty) Ltd v Food and Allied Workers Union (JA134/18) [2020] ZALAC 16; (2020) 41 ILJ 2067 (LAC) (18 May 2020)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JA134/18
In the matter between:
THE COLD CHAIN (PTY)
LTD
Appellant
and
FOOD AND ALLIED
WORKERS UNION
Respondent
Heard:
18 February 2020
Delivered:
18 May 2020
Summary: dismissal –
notice of termination - dismissal for operational requirements –
Non-compliance with procedural
requirements not rendering dismissal
invalid – declaration of invalidity not remedy contemplated by
the LRA 1995.
Coram: Davis, Musi and
Sutherland JJJA
JUDGMENT
DAVIS
JA
Introduction
[1]
This case concerns the effect of s 189(A)
(8) and (13) of the Labour Relations Act 66 of 1995 (‘LRA’)
and, in particular,
whether respondent was entitled to relief to the
effect that the notices of termination of employment issued to its
members by
the appellant on 13 December 2013 were of no legal force
and effect. Following therefrom, respondent sought an order that its
dismissed
members were entitled to be reinstated until such time as
appellant had complied with the procedural requirements laid out in s
189 of LRA.
The chronology leading
to the dispute
[2]
The core facts appeared to be undisputed.
The notices terminating the contracts for employment of the members
of respondent were
given to them on 13 December 2013, headed “Notice
of Retrenchment”.
[3]
The notices required the relevant members
to sign and confirm that his or her contract of employment was
terminated for reasons
based on operational requirements from 13
December 2013, that their contract would be terminated on 14 January
2014 and that they
could be paid until that date. On 10 January 2014,
respondent launched an application in terms of s 189 A (13) and (14)
of the
LRA for an order declaring that the notices of termination of
the member’s contracts of employment, as issued on 13 December
2013, were of no force and effect. The dispute was heard by Shai AJ,
sitting in the court
a quo
,
on 17 April 2014. Judgment was delivered on 13 May 2014. Shai AJ held
that the notices of termination issued by the appellant
on 13
December 2013 were invalid and thus unlawful in terms of s 189 A
(8)
(b)
read with s 189 (3) and s 64 of the LRA. The members refused to sign
these notices.
[4]
The relevant sections upon which the court
a quo
relied on are the following:
‘
Section
189 A (8) provides as follows:
If a facilitator is not
appointed-
(a)
a party may not refer a dispute to a
council or the Commission unless a period of 30 days has lapsed from
the date on which a notice
was given in terms of s 189 (3); and
(b)
once the periods mentioned in s 64(1)
(a)
have lapsed-
(i)
the employer may give notice to terminate
the contracts of employment in accordance with section 37(1) of
the
Basic Condition of Employment Act
; and
(ii)
a registered trade union or the employees
who have received notice of termination may-
(aa)
give notice of a strike in terms of section 64(1)
(b)
or
(d)
;
or
(bb)
refer a dispute concerning whether there is a fair reason for the
dismissal to the Labour Court
in terms of s 191(11).’
Section 64 (i) of the LRA
provides as follows:
(1)
Every employee has a right to strike and
every employer has a recourse to lock out if-
(a)
the issue in dispute has been referred to a
council or to the Commission as required by this Act, and-
(i)
a certificate stating that the dispute
remains unresolved has been issued;
(ii)
a period of 30 days, or any extension of
that period agreed to between the parties to the dispute, has elapsed
since the referral
was received by the council or Commission; and
after that…’
[5]
In essence, the respondent contended that
the appellant had failed to trigger the periods referred to in s 64
(1)(
a)
by
way of a referral to the council or to the
Commission
for Conciliation Mediation and Arbitration
;
hence the notices were in breach of the LRA and thus had to be
considered as legally invalid.
[6]
The court
a
quo
agreed with the respondent’s
submissions that the appellant had not applied the time periods laid
down in s 64 (1)
(a)
.
Accordingly, and following jurisprudence of this Court, in particular
De Beers Group Services (Pty) Ltd v
National Union of Mineworkers
[2011] 4
BLLR 319
(LAC)
De Beers)
,
the notices issued on 13 December 2013 were held to be in breach of
the prescribed time limits and thus had to be considered to
have no
legal force and effect. On this basis, the court
a
quo
reinstated the dismissed members
until such time as the appellant had complied with the fair
procedures as set out in s 189 A of
the LRA.
The appeal
[7]
The central issue on appeal was the
following: subsequent to the decision of this Court in
De
Beers
, a further decision of this Court
was delivered in
Edcon v Steenkamp and
others
2013 (4) SA 247
(LAC) in which a
different approach to the effect of s189 was adopted. This latter
approach was later confirmed by the Constitutional
Court in
Steenkamp
v Edcon
2016 (3) SA 251
(CC) (
Edcon
).
It is to this judgment that I now must turn.
The Edcon Case
[8]
In
Edcon
,
the Constitutional Court was required to determine whether a
dismissal effected by an employer pursuant to notices given in breach
of s 189 A (8) of the LRA was invalid and of no force and effect. The
Court accepted that an employer was precluded from giving
an employee
a dismissal notice during the period of 30 days from the date of the
giving of a s189 (3) notice until the period set
out in s 64 (1)
(a)
had elapsed. In
Edcon
the employer had given individual employees dismissal notices during
the prescribed period when it was precluded from doing so.
The effect
of the breach of these requirements lay at the heart of the dispute
before the Constitutional Court.
[9]
Writing on behalf of the majority of the
court, Zondo J (as he then was) concluded that an ‘invalid
dismissal and a declaratory
order that a dismissal is invalid and of
no force and effect fall outside the contemplation of the LRA.
Such an order cannot
be granted in a case based on the breach of an
obligation under the LRA concerning a dismissal’. (para 136)
[10]
Zondo J also held that there has to be a
‘LRA remedy for a LRA breach’ (para 137). If a litigant’s
cause of action
constitutes a breach of a provision of the LRA, that
litigant should seek a remedy as provided in the LRA. If an employer
had failed
to comply with the procedures set out in s 189 (A), the
employee was entitled to apply to the Labour Court for an order
compelling
the employer to comply with a fair procedure. As Zondo J
said:
’
If
an employer gives employees notices of dismissal without complying
with a fair procedure, or if an employer dismisses employees
without
complying with a fair procedure, the consulting party may apply to
the Labour Court for an order interdicting the dismissal
of employees
in terms of ss (13) (b) until there is compliance with a fair
procedure
.’ (para 160)
[11]
The majority of the court was clear: there
is a distinction to be drawn between an invalid dismissal and an
unfair dismissal. In
the case of a s 189 A dispute, the majority
found that the previous jurisprudence was incorrect in holding that
an invalid dismissal
had taken place. In any event, the Court noted
that an employee whose dismissal is invalid does not need an order of
reinstatement.
(see para 192)
Application to the
present appeal
[12]
It is clear from this judgment that the
approach adopted by the court
a quo
cannot be sustained. It was based on precedent which was overruled by
the Constitutional Court. Thus the finding of the court
a
quo
that the dismissal was invalid and
that reinstatement flowed from this invalidity must be set aside.
[13]
The problem in the present case is that the
respondent relied on decisions of the Labour Court and Labour Appeal
Court, the effect
of which was that it was open to respondent to
circumvent the dispute mechanism of LRA and seek a declaration of
invalidity. In
Edcon
,
the court was alive to this problem and considered the question as to
what employees could do in such a situation. The answer
provided by
Zondo J was as follows:
‘
it is
arguably open to them to seek condonation and pursue remedies under
the LRA obviously Edcon would be entitled to oppose that.’
(para 193)
[14]
In the present case, it was not the course
that the respondent chose to follow. It did not rely upon challenge
to the procedural
fairness of the dismissal of its members. It chose
instead to bring the case exclusively on the strength of an invalid
dismissal.
Once the invalidity argument falls to be rejected, there
is no alternative cause that commends it to consideration by this
Court.
However, even if it could be said that the issue of procedural
fairness was raised by respondent in the case it brought before the
court
a quo
,
more than six years have elapsed since the notices of termination
were issued. After the
Edcon
judgment, the only relief available to a party such as respondent and
its members would be to order reinstatement pending proper
compliance
by appellant with the procedures contained in s 189 A of the LRA. But
six years have passed and there would appear to
be no sensible basis
to grant what, in effect, is an interim interdict, pending procedural
compliance. In this connection
see
Steenkamp
v Edcon Ltd
(CC) (2019) 40 ILJ 1731 at
para 73:
‘
Having
regard to the primary purpose of s 189A(13), which is to get the
consultation process back on track whilst parties are still
engaged
in consultation or in timeous proximity to the dismissal of the
employees when the process may still be salvaged, a long
delay in
seeking remedies provided for this purpose is simply inappropriate.
The mere fact that the applicants’ application
in terms of s
189A(13) has been delayed as a result of their pursuit of a remedy
that has subsequently has been found to be wanting,
does not entitle
the court to ignore the purpose of the process provided for in s
189A(13).
’
[15]
The Court is thus left with no alternative
other than to find that the order of the court
a
quo
cannot stand in law. Thus the
appeal must succeed.
[16]
Accordingly, the following order is made.
The order of the court
a quo
is set aside and substituted with the following:
The
application in terms of s 189 A (13) of the LRA is dismissed with
costs.
__________________
Davis JA
Musi
and Sutherland JJA concur.
APPEARANCES:
FOR THE
APPELLANT: Mr
Snyman of Snyman
attorneys
FOR THE RESPONDENT:
Adv F A
Boda SC
Instructed
by Cheadle Thompson and Haysom