Edgars Stores Limited v South African Commercial Catering and Allied Workers Union and Another (JA77/97) [1998] ZALAC 18 (2 March 1998)

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[1998] ZALAC 18
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Edgars Stores Limited v South African Commercial Catering and Allied Workers Union and Another (JA77/97) [1998] ZALAC 18 (2 March 1998)

IN THE
LABOUR APPEAL COURT OF SOUTH AFRICA
(
HELD
AT JOHANNESBURG
)
Case no:
JA77/97
In
the matter between
EDGARS STORES
LIMITED
Appellant
and
SOUTH AFRICAN
COMMERCIAL
CATERING AND
ALLIED WORKERS UNION
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION AND
ARBITRATION
Second
Respondent
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
On 14 August
1996 the appellant, Edgars Stores Limited (“the company”),
commenced a disciplinary enquiry into the conduct of
fifty-one of
its employees. The charge was that on 31 July the employees had held
members of management hostage in order to compel
compliance with a
demand. The employees were represented by the first respondent, the
South African Commercial Catering and Allied
Workers Union (“the
union”). The enquiry ended on 28 October. On 8 November the
company dismissed the employees. The employees
appealed against the
dismissal. The appeal was dismissed on 13 December 1996.
On 11 November
1996 the Labour Relations Act, 95 of 1996 (“the 1995 Act”) came
into operation. One of the statutes it repealed
was the Labour
Relations Act, 28 of 1956 (“ the 1956 Act”).
On 10 January
1997 the union referred the dispute concerning the dismissal to the
second respondent, the Commission for Conciliation
Mediation and
Arbitration (“the Commission”) in terms of the 1995 Act. The
dispute was described in these terms in LRA Form
7:
“
The dispute
was about:
The
dismissal of individual applicants on the 8 November 1996 whose names
can be seen on annexure A hereto. The outcome of the appeal
was on
the 13 December 1996 whereby the company upheld the dismissal and
thereby refused to reinstate individual applicants.”
The company
took the point before the Commission that in terms of items 21(1)
and 22(1) of schedule 7 of the 1995 Act the Commission
did not have
jurisdiction to conciliate or arbitrate the dispute as the dispute
had arisen on 8 November 1996, prior to the commencement
of the 1995
Act. The contention was that only the industrial court had
jurisdiction to determine the dispute.
The union’s
answer was that the dismissal did not become effective until the
appeal procedure had been exhausted, an event which
occurred after
11 November 1996.
On 10 April
1997 the union applied for the establishment of a conciliation board
in terms of 1956 Act “to consider and settle
a dispute”. The
dispute was stated to concern “unfair dismissal of E Wabile and 50
others”. It was said that the matter
in dispute was “... an
unfair labour practice and commenced/ceased on 8/11/96". The
dispute concerning the dismissal of
the fifty-one employees is
hereinafter referred to as the “dismissal dispute”.
The Commission
upheld the company’s contentions and rejected those of the union.
The union
thereafter instituted review proceedings in the Labour Court.
The Labour
Court reversed the decision of the Commission. The Court accepted
that the dismissal was final on 8 November 1996, but
held that the
dismissal dispute arose after 11 November 1996, and that accordingly
it was the Commission, and not the industrial
court, which had
jurisdiction to determine the dispute.
Schedule 7 to
the 1995 Act contains the transitional arrangements. Item 21 deals
with “disputes arising before commencement of
this Act”.
Subitem (1) provides: “Any dispute contemplated in labour
relations laws which arose before the commencement of
this Act must
be dealt with as if those laws had not been repealed.”
Item 22(1)
provides:
“
In any
pending dispute in respect of which the industrial court or the
agricultural labour court had jurisdiction and in respect of
which
proceedings had not been instituted before the commencement of this
Act, proceedings must be instituted in the industrial court
or the
agricultural labour court (as the case may be) and dealt with as if
the labour relations laws had not been repealed. The industrial
court
or the agricultural labour court may perform or exercise any of the
functions and powers that it had in terms of the labour
relations
laws when it determines the dispute.”
The Labour
Court’s reasoning, in essence, was that the word “dispute” in
item 22 is not defined in the 1995 Act; that a dispute
arises when
there is “[the] expression by parties, opposing each other in
controversy, of conflicting views, claims or contentions”,
in the
words of Selke J in
Durban
City Council v Minister of Labour ao
1953 (3) SA 708
(D) at 712A; that the dismissal and “... the
arising of the dispute in this case, occurred on different dates”;
that “...
a dispute about the fairness or otherwise of the
dismissal cannot be said to arise until in deed or words the
employee or his agent
has, at the very least, shown that he disputes
the fairness of such dismissal”; and “... [a]lthough no date is
given as to
when the declaration of the dispute was made, it is
clear that this was soon after the [union] learned of the
[company’s] rejection
of the appeal - which clearly represented
the taking by the [company] of a position on the fairness or
otherwise of the dismissal,
a position which was contrary to that
already taken by the [union].”
In terms of
items 21(1) and 22(1) of schedule 7 of the 1995 Act the industrial
court is required to determine the dispute if:
- the dispute
was contemplated by the 1956 Act;
-
the dispute arose prior to 11 November 1996;
-
the industrial court had jurisdiction to determine the dispute; and
-
proceedings had not been instituted prior to 11 November 1996 to
determine the dispute.
It is common
cause between the parties that the dismissal dispute was one:
- contemplated
by the 1956 Act;
-
in respect of which the industrial court had jurisdiction; and
-
in respect of which proceedings had not been instituted.
The sole
inquiry is whether the dismissal dispute arose prior to 11 November
1996.
By virtue of
the provisions of items 21 and 22 of schedule 7 of the 1995 Act, the
answer must be sought in the 1956 Act.
The dispute
which the industrial court had jurisdiction to determine in terms of
the 1956 Act was “a dispute concerning an alleged
unfair labour
practice.”
The functions
of the industrial court included the power to grant urgent interim
relief until an order was made in terms of s43(4);
to grant interim
orders in terms of s43; and to make determinations in terms of
s46(9). S43 conferred on the industrial court
the power “to order
reinstatement of employees or restoration of terms and conditions or
abstention from unfair labour practice”.
In terms of ss (1) the
term “dispute” used in s43 meant “a dispute concerning an
unfair labour practice”. In terms of
s46(9) the industrial court
had the power to determine “a dispute regarding an alleged labour
practice”. In terms of the definition
of unfair labour practice
in s1 an unfair labour practice consisted of “any act or omission”
which had or might have had one
or more of the effects set out in
the definition.
For the purpose
of the prescription of claims under s43 and s46(9) the prescription
period was calculated from the date the unfair
labour practice was
committed, not the date on which the parties declared a dispute
concerning the unfair labour practice, and
no distinction was drawn
between the notion of “a dispute” and that of “an unfair
labour practice”. The crucial date was
the date the cause of
action (based on the unfair labour practice jurisdiction of the
industrial court) arose. In terms of s43(4)(a)
read with s43(2) any
party to a dispute concerning an unfair labour practice was obliged
to refer the dispute to an industrial
council or conciliation board
“within 30 days of the date on which notice was given of the
alleged unfair labour practice, or
if no such notice was given, of
the date on which the alleged unfair labour practice was
introduced”. S46(9)(a) read with s27A(1)(d)(i)
and s35(3)(d)(i)
provided that:
(a) the
industrial court was precluded from determining a dispute concerning
an alleged unfair labour practice unless the dispute
had been
referred for conciliation to either the industrial council having
jurisdiction or, where no such industrial council existed,
to a
conciliation board; and
(b) no
dispute concerning an unfair labour practice could be referred to an
industrial council or conciliation board unless the dispute
had been
referred to the industrial council or conciliation board “within a
180 days from the date on which the unfair labour practice
commenced
or ceased as the case might be.”
In terms of the
1956 Act, the date of dismissal constituted the date on which the
alleged unfair labour practice was introduced,
commenced or ceased.
The 30 day and 180 day periods were calculated from the date of
dismissal, not the date that the parties
declared a dispute
regarding the dismissal. Put differently, a dismissal dispute arose
on the date of the dismissal.
Neither in its
referral to the Commission nor in its application for a conciliation
board did the union allege that the company
acted unfairly after 8
November 1996. Its contention was that the dismissal did not become
final until the internal appeal procedure
had been exhausted, a
submission which the Commission and the Labour Court, correctly,
rejected.
The Labour
Court should have found that the dispute concerning the unfair
labour practice allegedly committed by the company in
dismissing the
fifty-one employees arose on 8 November 1996, that on 11 November
the dismissal dispute was pending and that the
industrial court had
jurisdiction to determine the dispute.
The appeal
succeeds, with costs.
The order of
the Labour Court is altered to read:
“
The
application is dismissed, with costs.”
___________________
Myburgh
JP
I
concur:
_________________
Froneman
DJP
I
concur:
__________________
Kroon
JA
Date
of hearing: 20 February 1998
Date
of judgment: 2 March 1998
Appearances
for appellant: Mr Brian Bleazard of Brian Bleazard Attorneys
For
respondent: Adv J.G. Rautenbach instructed by S V Khampepe
Attorneys