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[2020] ZALAC 24
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Feni v Commission for Conciliation, Mediation and Arbitration and Others (JA30/2019) [2020] ZALAC 24; (2020) 41 ILJ 1899 (LAC); [2020] 10 BLLR 1001 (LAC) (28 May 2020)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case No: JA30/2019
In the matter between:
ZIXOLISLLE
FENI Appellant
and
COMMISSIONER FOR
CONCILIATION, MEDIATION
AND ARBITRATION
First
Respondent
HARMSE
N.O Second
Respondent
PAN SOUTH AFRICAN
LANGUAGE BOARD Third
Respondent
Heard:
19 May 2020
Delivered:
28 May 2020
Coram:
Phatshoane
ADJP, Davis JA and Murphy AJA
JUDGMENT
DAVIS JA
Introduction
[1]
This appeal concerns an important question
as to the approach to be adopted in circumstances where an employee
lodges two disputes
with the Commission for Conciliation Mediation
and Arbitration (‘CCMA) concerning his or her dismissal; in
particular where
an employee proceeds to the CCMA on the basis that
the dismissal was automatically unfair and subsequent thereto raises
a further
dispute to the effect that the very same dismissal is
unfair for grounds other than those which would fall within the scope
of
an automatically unfair dismissal.
The factual background
[2]
On 27 June 2016, third respondent issued a
notice to the appellant in which it called upon appellant to make
representations as
to why his services should not be terminated on
the grounds of incompatibility. The letter which was signed by Dr
Monareng, the
Chief Executive Officer (CEO) of third respondent, set
out a series of grounds ‘on which I hold the preliminary view
that
your services should be terminated on grounds of
incompatibility.’ These included an alleged campaign by the
appellant to
attack the legitimacy of the appointment of Dr Monareng
as CEO of third respondent, attempts by appellant to undermine the
authority
of the CEO as well as a sustained campaign of litigation
against third respondent.
[3]
The appellant did not make any
representations following the receipt of this letter. On 29 June
2016, Dr Monareng wrote a further
letter to appellant entitled
“Notice of Dismissal” in which he noted: ‘you were
invited to make such representations
if any by 28 June 2016 we note
that you have not provided such representations and had not indicated
the intention to do so. Accordingly,
you are dismissed with immediate
effect on the grounds of incompatibility.’
[4]
Following receipt of this letter, the
appellant referred an alleged unfair dismissal dispute to the CCMA on
6 July 2016. In terms
of the LRA 7.11 referral form, the nature of
the dispute was described as “dismissal”, the type of
dispute was referred
to as “automatic unfair dismissal”
and the facts of the dispute were summarised as “dismissal for
making protected
disclosures and for exercising my rights”.
[5]
On 25 July 2016, a certificate of the
outcome of the dispute which had been referred to conciliation was
issued. It certified that,
as the dispute had remained unresolved, it
could now be referred to the Labour Court because it involved an
alleged automatic unfair
dismissal flowing from a protected
disclosure.
[6]
A day later, on 26 July 2016, the appellant
completed and served a further LRA 7.11 referral form referring to
the nature of the
dispute as “dismissal”. In this
referral, the type of dismissal was described as “for unknown
reasons”.
The facts of the dispute were summarised as
‘dismissed when there was no hearing, no charges referred and
no fault of my
own’. It was made clear that the date of the
dismissal and thus the date of the dispute was the 29 of June 2016
which was
exactly the same date which had been inserted in the first
LRA 7.11 referral form. In short, there was no dispute that one act
of dismissal pursuant to the letter of Dr Monareng of 29 June 2019
had prompted the appellant to generate two referrals.
[7]
This second referral, that is on 26 July
2016, was set down for conciliation on 26 August 2016. At these
proceedings third respondent
raised a point in limine in which it
alleged two unfair dismissal disputes had been referred by the
appellant pertaining to the
very same dismissal. As the CCMA had
already considered the dispute previously and had issued a
certificate of outcome certifying
that the dispute had remained
unresolved and could be referred to the Labour Court as it pertained
to an alleged automatically
unfair dismissal based on an alleged
protected disclosures, it was contended that the CCMA did not have
jurisdiction to hear the
matter.
[8]
The point in limine was upheld by the
second respondent on 26 August 2016 in which the following ruling was
issued.
‘
The
respondent raised a point in limine stating that the CCMA lacks
jurisdiction in this matter as the applicant referred an alleged
automatic unfair dismissal dispute under case number GATW8714-16 and
another alleged unfair dismissal under this case number.
Essentially these two disputes are the same in nature as it relates
to the applicant’s dismissal. The matter was already
referred
to the Labour Court for adjudication and therefore the CCMA is
functus officio
to arbitrate this matter i.e. the CCMA lacks jurisdiction to
arbitrate this matter. Case management is directed to close the CCMA
case file
.’
[9]
Following this ruling, the appellant
approached the Labour Court contending that the CCMA did indeed have
jurisdiction to hear this
second referral. In dismissing this
application, Rabkin-Naicker J noted that this was not a case where
there were two causes of
action but rather one where the appellant
sought two separate hearings for the same dismissal which, in her
view, was impermissible
in law. With the leave of this court, the
appellant seeks to have this order overturned.
The appeal
[10]
The crisp questions for determination are
whether the CCMA has jurisdiction to conciliate and arbitrate the
second dismissal which
was lodged on 26 July 2016 and, if it did not,
on what basis can it be found that it did not have such jurisdiction.
In particular,
the question arises as to whether either of the
doctrines of
res judicata
or
lis pendens
is applicable in this case.
[11]
Counsel for the third respondent contended
that the CCMA could not be expected to deal with the same dismissal
dispute relating
to the same parties under two different themes.
Having failed to conciliate the dispute regarding the automatically
unfair dismissal,
it was contended that the CCMA was
functus
officio
in respect of the second
referral. In support thereof it was submitted that the principle of
res judicata
was applicable in respect of the second referral in that it was one
and the same dispute between the parties and that the CCMA
had made a
decision that the dispute could not be resolved, entitling appellant
to approach the Labour Court. Thus the issuance
of a certificate of
non-resolution was a jurisdictional decision which had been taken in
respect of the dispute and could not be
retaken.
[12]
The doctrine of
res
judicata
encompasses a matter that has
already been decided; that is the same dispute had been finally
adjudicated upon in proceedings between
the same parties and
therefore cannot be raised again. According to Voet 42.1.1 this
exceptio
was available in the common law, if it was shown that the judgment in
the earlier case was given in a dispute between the same
parties for
the same relief on the same ground or on the same cause. See
National
Sorghum Breweries Ltd (t/a Vivo African Breweries) v International
Liquor Distributors (Pty) Ltd
[2000] ZASCA 159
;
2001 (2)
SA 232
(SCA) at 239 as well as the cases cited therein.
[13]
The law was further explicated by Scott JA
in
Smith v Porritt and others
2008 (6) SA 303
SCA at para 10 “the
ambit of the
exceptio
rei judicata
has
over the years been extended by the relaxation in appropriate cases
of the common-law requirements that the relief claimed
and the cause
of action be the same (
eadem
res
and
eadem
petendi causa
)
in both the case in question and the earlier judgment. Where the
circumstances justify the relaxation of these requirements those
that
remain are that the parties must be the same (
idem
actor
)
and that the same issue (
eadem
quaestio
)
must arise. Broadly stated, the latter involves an inquiry whether an
issue of fact or law was an essential element of the judgment
on
which reliance is placed. Where the plea of
res
judicata
is
raised in the absence of a commonality of cause of action and relief
claimed it has become commonplace to adopt the terminology
of English
law and to speak of issue estoppel. But, as was stressed by Botha JA
in
Kommissaris
van Binnelandse Inkomste v Absa Bank BPK
1995
(1) SA 653
(A) at 669D, 670J-671B, this is not to be construed
as implying an abandonment of the principles of the common law in
favour
of those of English law; the defence remains one of
res
judicata
.
The recognition of the defence in such cases will however require
careful scrutiny. Each case will depend on its own facts and
any
extension of the defence will be on a case by case basis.
‘
Applying this test to the
facts of this dispute, it is difficult to see how a decision on
jurisdiction constitutes
res judicata.
It is not a
determination of the legal justification of the core dispute of
dismissal between the parties.
[14]
Aligned, however, to the concept of
res
judicata
is that of
lis
pendens
. As Nugent AJA said in
Nestlé
(South Africa) Pty Ltd v Mars Inc
2001
(4) SA 542
(SCA) at para 16:
‘
The
defence of
lis alibi pendens
shares features in common with the defence of
res
judicata
because they have a common
underlying principle, which is that there should be finality in
litigation. Once a suit has been commenced
before a tribunal that is
competent to adjudicate upon it, the suit must generally be brought
to its conclusion before the tribunal
and should not be replicated
(
lis alibi pendens
).
By the same token the suit will not be permitted to revive once it
has been brought to its proper conclusion (
res
judicata
). The same suit between
the same parties, should be brought once and finally.’
[15]
Wallis J explicated upon the doctrine in
Caesarstone Sdocot-Yam v World of Marble
and Granite
2000
CC and others
2013 (6) SA 499
(SCA) at
para 2 where he said that the policy underlying the doctrine of
lis
pendens
‘is that there should be
a limit to the extent to which the same issue is ligated between the
same parties and that it is
desirable that there be finality in
litigation. The courts are also concerned to avoid a situation where
different courts pronounce
on the same issue with the risk they may
reach different conclusions.’
[16]
Herbstein and Van Winsen The Civil Practice
of the High Courts in South Africa (5ed) at 606 note that a plea of
lis pendens
involves an intervention by the court to stay one or other of the
proceedings because it is prima facie vexatious to bring two
actions
in respect of the same subject matter. The learned authors point out
that the court has a discretion in the matter which
is sourced in the
policy that to allow two separate proceedings to continue in respect
of the same dispute may well border on the
authorisation of a
vexatious practice.
[17]
The question that therefore requires
determination, in this case, is whether both the CCMA and the court
a
quo
were confronted with the same
dispute; that is a single act of dismissal of the appellant by the
third respondent and that the
fact that the former had raised two
justifications for his argument that the dismissal was unfair did not
mean that
lis pendens
should not be invoked in this case.
[18]
Of relevance to the determination of this
question is a recent judgment of the Constitutional Court in
Association of Mine Workers and
Construction Union and others v Ngululu Bulk Carriers (Pty) Ltd (in
liquidation) and others
[2020] ZACC 8.
The facts were as follows: Respondents employees including members of
appellant were engaged in an unprotected strike. Respondent
dismissed
476 of these workers as a result of their participation in the
unprotected strike. An unfair dismissal dispute was immediately
referred to the relevant bargaining council by appellant. The dispute
was conciliated without success and a certificate of non-resolution
was issued by the relevant council. The Court referred to this as the
first dispute.
[19]
At the same time, respondent reemployed
some of the dismissed employees although it did not reemploy a single
member of the appellant.
The appellant and its members considered
that the respondent had embarked upon a process of selected
reemployment. Thus there was
now a second act of further dismissal to
which the members of appellant had been subjected.
[20]
A referral to the same bargaining council
was made by the appellants for conciliation. It was contended that
selective reemployment
constituted an unfair dismissal as set out in
s 186 (1) (d) of the Labour Relations Act 65 of 1995 (‘LRA’).
The court
referred to this as the second dismissal. The respondent
disputed that the bargaining council had jurisdiction to conciliate
the
second dismissal but the council rejected this objection and
conciliation continued. Again a resolution was unsuccessful and a
certificate of non-resolution was thus issued. Aggrieved by this
ruling, respondent launched a review application in the Labour
Court
impugning the ruling on jurisdiction and hence the validity of the
certificate of non-resolution. Thereafter the appellant
and its
members initiated a claim for unfair dismissal in the Labour Court.
With regard to the first dismissal, it was contended
that members of
the appellant had been dismissed for their affiliation to the union
and for this reason, in terms of s 187 (1)
(f) LRA, these dismissals
were automatically unfair.
[21]
Respondent defended this action and raised
two preliminary points, namely, that, as this dismissal was based on
the assertion that
it was automatically unfair, the Labour Court
lacked jurisdiction in that an automatically unfair dispute had not
been referred
to conciliation. It also raised the defence of
lis
pendens
contending that the issues
raised by the second claim were the subject matter of a review
application then pending before the Labour
Court. These preliminary
objections were upheld by the Labour Court and the matter finally
proceeded to the Constitutional Court.
[22]
The Constitutional Court rejected
respondent’s arguments and overturned the decision of the
Labour Court. With regard to the
first argument, namely that, as the
first dismissal had been reclassified by the appellant as an
automatic unfair dismissal, and
that claim had to be conciliated
before the Labour Court could entertain it, the Constitutional Court
took the view that the fact
that an unfair dismissal dispute had been
referred to conciliation and had been conciliated it appeared to have
been ignored by
the Labour Court. In short, ‘the flaw in the
Labour Court’s reasoning stems from its characterisation of an
automatically
unfair dismissal as a dispute separate from an unfair
dismissal dispute that was referred to conciliation. That court
overlooked
the fundamental issue which is that what was referred to
conciliation was the unfairness of the dismissal regardless of
whether
the unfairness concern was automatic or otherwise. And that
is not reasons for dismissal which must be referred to conciliation
but the unfairness of the dismissal.’ (para 21)
[23]
With regard to the argument based on
lis
pendens
, the Constitutional Court noted
that the causes of action in the two proceedings were different as
were the subject matters. There
were two separate causes of action:
One, dealing with dismissal as a result of the unprotected strike and
another being the decision
regarding a selective reemployment.
[24]
In the present case, as I have emphasised,
there was only one dismissal. That dismissal was referred to
concilation and then to
the Labour Court ... As the Constitutional
Court said in the
AMCU
case, it is not reasons for a dismissal which must be referred to
conciliation but the unfairness of the dismissal’ (para
21),
because the Constitutional Court considered that there were two
separate dismissals, the approach adopted by the Court is
distinguishable from the present dispute. Indeed, the emphasis placed
by the Court on difference between the reasons for the dismissal
and
the dismissal itself is fatal to the appellant’s case in the
present dispute.
[25]
Were appellant’s argument to succeed,
it would create significant obstacles to one of the essential
objections of LRA with
regard to dismissals, namely their expeditious
resolution thereof. A party could, as in this case proceed with a
referral of an
alleged unfair dismissal dispute to the CCMA, which
would fail to resolve it. Because the case was one based on an unfair
dismissal
where, as in this case, it was alleged that the dismissal
was based on an alleged protected disclosure and therefore
constituted
an automatically unfair dismissal, the matter would
proceed to the Labour Court. However, the disgruntled employee could
then raise
a battery of further reasons for the very same dismissal
and, while the first argument was pending resolution before the
Labour
Court, he could revert to the CCMA on the grounds that he had
a series of further reasons as to why he had been dismissed. If that
argument succeeded the CCMA would be engaged either with a
conciliation process or possibly an arbitration thereafter at the
same
time as the fairness of the same dismissal was to be heard
before the Labour Court or possibly on appeal by the Labour Appeal
Court.
[26]
This set of consequences would be entirely
incongruent with the policy of the LRA, being expedition of the
resolution of a single
act of dismissal. This conclusion, namely that
the doctrine of
lis pendens
would be appropriately invoked in such a case, is strengthened by the
lack of prejudice to a party in the position of appellant.
In terms
of s158 (2) of the LRA, if at any stage after a dispute had been
referred to the Labour Court, it becomes apparent that
the dispute
ought to have been referred to arbitration, the court may- (a) stay
the proceedings and refer the dispute to arbitration;
or (b) with the
consent of the parties if it is expedient to do so continue with the
proceedings with the court sitting as an arbitrator
in which case the
court may only make any order that a commissioner or arbitrator would
have been entitled to make.’
[27]
This implies that, if a dispute concerning
a single act of dismissal of appellant by third respondent was being
heard in the Labour
Court, it would be possible for the appellant to
make an application to amplify his case so as to include as a second
ground for
his allegation of unfair dismissal the facts that no
justifiable reason was proffered by the third respondent, that no
hearing
had taken place and that therefore there had been significant
procedural and substantive irregularities. The court could then
decide
to sit as an arbitrator in respect of this component of the
case. Not only would such a cause of action be sanctioned by s158 (2)
of the LRA but this would be congruent with the fundamental idea set
out in the
AMCU
case, namely that where there is one dispute then there should be one
set of proceedings.
[28]
For all of the reasons therefore, as set
out, there is no basis by which to disturb the conclusion reached by
the court
a quo
.
Accordingly, the appeal is dismissed with costs.
______________
Davis
JA
Phatshoane
ADJP and Murphy AJA concur.
APPEARANCES:
For
the APPELLANT:
Makhafola &
Verster Inc
FOR
THE THIRD RESPONDENT:
Bowman
Gilfillan