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[2014] ZALAC 29
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Intervalve (Pty) Ltd and Another v National Union Of Metalworkers Of South Africa obo Members (JA24/2012) [2014] ZALAC 29; (2014) 35 ILJ 3048 (LAC) (26 March 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
REPORTABLE
CASE NO: JA24/2012
In the matter between:
INTERVALVE (PTY) LTD
First
Appellant
BHR PIPING SYSTEMS
(PTY) LTD
Second
Appellant
and
NATIONAL UNION OF
METALWORKERS
OF SOUTH AFRICA obo
its MEMBERS
Respondent
Heard:
05 September 2013
Delivered:
26 March 2014
Summary: joinder
application- Respondent seeking joinder of appellants in the Labour
Court- conciliation prerequisite in Labour
disputes- principles that
all dismissal matters must be conciliated before referred to
arbitration or adjudication restated. Labour
Court Rules providing
for joinder application cannot supersede mandatory requirement for
conciliation provided by the LRA. Labour
Court lacking jurisdiction
to entertain the joinder application- Appeal succeeds and application
for joinder dismissed.
Coram:
Waglay JP, Francis and Dlodlo AJJA.
JUDGMENT
WAGLAY JP
Introduction
[1]
Intervalve (Pty) Ltd (“Intervalve”) and BHR Piping
Systems (Pty) Ltd (“BHR”) are the first and second
appellants in this matter. They come to this Court with leave of the
Labour Court (Steenkamp J) to set aside the order of the Labour
Court
joining them as respondent parties in the action instituted by the
National Union of Metalworkers of South Africa (“NUMSA”)
against Steinmüller Africa (Pty) Ltd (“Steinmüller”).
Background
[2]
NUMSA brought the action on behalf of 204 of its members all of whom
were dismissed on 20 April 2010 for participating in a
strike. These
members were employed by Steinmüller, Intervalve and BHR. NUMSA
timeously referred this dismissal dispute to
the Metal and
Engineering Industries Bargaining Council (“the Bargaining
Council”) for conciliation. The only party
cited as the
employer in the referral was Steinmüller. A conciliation meeting
was held on 19 May 2010 and failed to resolve
the dispute. At the
conciliation meeting, Steinmüller pointed out to NUMSA that many
of the members on behalf of whom it referred
the dispute to the
Bargaining Council were not employed by it.
[3]
Arising from the above information, NUMSA made another referral to
the Bargaining Council to conciliate the dispute. This time
it
alleged that the employer party was Steinmüller alternatively
Intervalve, alternatively BHR alternatively KOG Fabricators
(Pty) Ltd
t/a Bellows Africa. As this referral was made outside the period
prescribed by the Labour Relations Act 66 of 1995 (“the
LRA”),
NUMSA sought condonation for the late referral. The Bargaining
Council refused the condonation application hence the
referral was
not entertained by it. NUMSA did not seek to review the refusal by
the Bargaining Council to grant it condonation
for the late referral
of the dispute.
[4]
On 17 August 2010, NUMSA filed its Statement of Claim averring that
its members were dismissed unfairly. Again, only Steinmüller
was
cited as the employer party. Steinmüller then lodged an
application to remove various causes of complaint in the Statement
of
Claim. About seven months after the filing of its Statement of Claim,
NUMSA brought an application to join Intervalve and BHR
and two other
entities as respondents to the unfair dismissal action it had
instituted against Steinmüller.
[5]
The Labour Court granted the application thus joining the parties to
the action instituted by NUMSA against Steinmüller.
Intervalve
and BHR opposed the application. The other two parties who were
joined did not oppose the application: they are both
labour brokerage
companies.
The
Joinder application
[6]
It is clear when regard is had to the application brought by NUMSA to
join the four further respondents that the application
was brought in
terms of rule 22(2)(a) of the Rules for the conduct of proceedings in
the Labour Court. The founding affidavit addressed
three issues in
support of the application viz:
(i)
the steps NUMSA took to ascertain who were the true employers of the
members
on behalf of whom NUMSA instituted the action against
Steinmüller;
(ii)
the “
direct and substantial interest that the parties sought
to be joined”
had in the action instituted by NUMSA against
Steinmüller; and
(iii)
the absence of any prejudice to Steinmüller or the parties
sought to be joined if
the application succeeds.
[7] On the first issue,
NUMSA set out how it spent months attempting to reconcile its members
with Steinmüller, Intervalve
and BHR as their specific
employers. On the issue of direct and substantial interest which
Intervalve and BHR had in the action,
NUMSA stated that because
Intervalve and BHR employed certain of the members of NUMSA on whose
behalf NUMSA instituted its action
against Steinmüller,
Intervalve and BHR have a direct and substantial interest in the said
proceedings, adding, mostly in
its replying papers that: BHR,
Intervalve and Steinmüller form part of the same group of
companies and have certain directors
and shareholders in common; BHR,
Intervalve and Steinmüller have a number of “shared
services” which include
inter alia,
Payroll
Administration and Human Resources (HR) services; the dismissal of
the individual employees was consequent upon a strike
action at the
premises shared by amongst others, Steinmüller, Intervalve and
BHR; the strike was handled, from the employers’
side, by the
shared HR services of the three companies; the shared HR Services
communicated with employees using a document on
a letterhead bearing
the names of all three entities Steinmüller, BHR and Intervalve-
and signed by a single member of management,
Mr J Abert, under the
designation “General Manager”; the shared HR Services of
Steinmüller, Intervalve and BHR
maintain a single system of
records in respect of their employees; some employees of Steinmüller,
Intervalve and BHR, were
required to sign an addendum to their
employment contracts reflecting the names of all of these entities,
regardless of the identity
of the employer; Steinmüller,
Intervalve and BHR acted with a single voice and face throughout the
events that culminated
in the dismissal of the individual employees,
in particular in effecting their dismissal; the shared HR Services
prepared and issued
identical dismissal letters to all employees on a
letterhead reflecting the names of Steinmüller, Intervalve and
BHR; that
the operations, personnel, identities and other
characteristic of the three companies “
are interwoven in
that the three companies have a parity of interest”
in
relation to the members on whose behalf NUMSA instituted an action
against Steinmüller. NUMSA finally averred that any
order that
it may obtain against Steinmüller it might have to execute
against the other two companies.
[8] With regard to the
issue of prejudice, NUMSA outlined why none of the parties sought to
be joined would suffer any prejudice
if joined: as BHR and Intervalve
already had full knowledge of the proceedings to date because of the
shared HR Services; BHR and
Intervalve have full and ready access to
the shared records in respect of the individual employees; and, the
attorneys for Steinmüller
(who also act for Intervalve and BHR)
furnished the respondent’s attorneys with documentary records
drawn from the shared
HR Services with lists, which they amended on
more than one occasion, purporting to identify the correct employer
of each of the
individual employees.
[9]
Finally, in its founding affidavit, NUMSA states that it continues to
hold the view that Steinmüller is in fact the true
employer of
the members on behalf of whom NUMSA has instituted the action. Its
application for joinder should therefore be seen,
in my view, as a
cautionary exercise.
[10]
Intervalve and BHR argue that the joinder is not permissible
principally on two grounds:
(a)
that the Labour Court has no jurisdiction to entertain an unfair
dismissal claim brought
by NUMSA against Intervalve or BHR because
the condition precedent, that a matter first be conciliated before
being referred to
adjudication was not met; and
(b)
that NUMSA has failed to satisfy the requirement that the parties it
seeks to join have
a “
substantial interest in the subject
matter of the proceedings”
as required by Rule 22.
[11]
The starting point must be whether the Labour Court had jurisdiction
to entertain the dispute brought by NUMSA on behalf of
its members
against Intervalve and BHR. In the absence of having the jurisdiction
to entertain the dispute the issue of joinder
does not arise.
[12]
The dispute between the parties is one of dismissal based on
participation in a non-procedural strike. In terms of s191 of
the
LRA, such disputes must, firstly be referred to conciliation within
30 days of the date of the dismissal (although the non-compliance
with the 30 days’ time limit may be condoned on good cause
shown) and, if the matter remains unresolved after conciliation,
the
dispute must be referred for adjudication to the Labour Court and
this must be done within 90 days after a certificate of
non-resolution of the dispute at conciliation is issued. Again the
non-compliance with the 90 day time period can be condoned on
good
cause shown.
[13]
The relevant sub-sections of section 191 which regulate the above
position provide:
“
191.
Disputes about unfair dismissals and unfair labour practices
(1)
(a)
If there is a dispute about the fairness of a dismissal,
or a dispute
about an unfair labour practice, the dismissed employee or the
employee alleging the unfair labour practice may refer
the dispute in
writing to
(i)
a
council, if the parties to the dispute fall within the
registered
scope of that council; or
(ii)
the Commission, if no council has jurisdiction.
(b)
A referral in terms of paragraph (a) must be made within -
(i)
30 days of the date of a dismissal or, if it is a later date, within
30 days
of the employer making a final decision to dismiss or uphold
the dismissal;
(2)
If the employee shows good cause at any time, the council or the
Commission may permit
the employee to refer the dispute after the
relevant time limit in subsection (1) has expired.
(3)
The employee must satisfy the council or the Commission that a copy
of the referral
has been served on the employer.
(4)
…
(5)
If a council or a commissioner has certified that the dispute remains
unresolved,
or if 30 days have expired since the council or the
Commission received the referral and the dispute remains unresolved –
(a)
…
(b)
the employee may refer the dispute to the Labour Court for
adjudication if the employee
has alleged that the reason for
dismissal is –
…
(6) to (10)…
(11) (a)
The referral, in terms of subsection (5) (b),
of a dispute to
the Labour Court for adjudication, must be made within 90 days after
the council or (as the case may be) the commissioner
has certified
that the dispute remains unresolved.
(b)
However, the Labour Court may condone non-observance of that
timeframe on good cause
shown.”
[14]
NUMSA as has been recorded earlier referred the unfair dismissal
dispute against Steinmüller both for conciliation and
to the
Labour Court
prima
facie
in compliance with s191. NUMSA did refer a dispute for conciliation
against Intervalve and BHR but this was done outside the prescribed
time limit and it was rejected by the Bargaining Council on the basis
that NUMSA failed to show good cause as to why the referral
should be
entertained. In the circumstances no dispute against Intervalve and
BHR was referred for conciliation. Based on the non-referral
of the
dispute for conciliation and relying on the judgment of this Court in
National
Union of Metalworkers of South Africa v Driveline Technologies (Pty)
Ltd
(“
Driveline
”),
[1]
Intervalve and BHR aver that the Labour Court has no jurisdiction to
entertain a dispute between NUMSA and them. In
Driveline,
Zondo
AJP (as he then was) with Mogoeng AJA (as he then was) concurring
held that:
“…
the
wording of section 191(5) imposes the referral of a dismissal dispute
to conciliation as a precondition before such a dispute
can either be
arbitrated or referred to the Labour Court for adjudication.”
[2]
[15]
NUMSA, however, argued that where a dispute involves more than one
employer, there is no requirement that each employer must
of
necessity be party to a conciliation process as the Labour Court has
a discretion to join parties to an already commenced matter.
For this
it relied on the judgments of the Labour Court in
Selala
and Another v Rand Water
[3]
(“
Selala
”)
and
Mokoena
and Others v Motor Component Industry (Pty) Ltd and Others
[4]
(“
Mokoena
”).
[16]
In the matter of
Mokoena,
the employee party sought to join three further respondents in the
action it had instituted against the Motor Component Industry
(Pty)
Ltd (the “respondent”). The parties sought to be joined
were not cited in the referral the employee party had
made for
conciliation, nor was there any referral made for conciliation
against them. The Labour Court there took the view that
“
as
long as the dispute has been the subject of proper conciliation, even
if all the parties did not participate in such conciliation
the
aforesaid jurisdictional requirement is satisfied”
[5]
.
The court then, relying on the Labour Court judgment of
Selala
stated that it “
has
a discretion to join parties to a matter, even if they did not
participate in the preceeding conciliation process”.
[6]
(Participation in the context of the above statements is not intended
to convey a failure to take part in the process but not being
cited
as a party in the referral of the dispute for conciliation). The
Court in
Mokoena
then went on to hold, rather curiously, that individual employees
“
who
were not identified in the dispute referral form [for conciliation]
and did not participate in the conciliation proceedings”
[7]
could not refer their dismissal dispute to adjudication or
arbitration because of non-compliance with s191(1) and (3) of the
LRA.
In
Mokoena
,
the Labour Court allowed the joinder of one of the parties. The party
joined was a party that the Labour Court held had taken
over the
respondent’s business in circumstances that invoked s197 of the
LRA. In terms of this section where a business is
transferred as a
going concern the transferee takes over the employment
responsibilities of the transferor. The joinder was thus
granted not
on the basis of any exercise of a discretion of joining a party not
taken to conciliation but because s197(9) of the
LRA
placed
the new employer in the shoes of the old employer.
[8]
In the circumstances, there was no need to refer both the new and the
old employer to conciliation any one would suffice as judgment
against one was effective against the other. The party joined in
Mokoena
was
in the same position as the respondent. In fact the Court in granting
the joinder said:
“
Section
197(9) of the Act stipulates that, in such a transfer situation, the
old and new employer are jointly and severally liable
in respect of
any claim concerning any term or condition of employment that arose
prior to the transfer. Section 197(2)(a) provides
that the new
employer is automatically substituted in the place of the old
employer in respect of all contracts of employment in
existence
immediately before the date of transfer. If the applicants, in the
instant matter, succeed in proving that they were
unfairly dismissed,
any reinstatement order or compensation order made in their favour
would be enforceable against the transferee,
the third respondent. In
those circumstances, the third respondent is an interested party
(
Halgang
Properties CC v Western Cape Workers Associations
[2008] ZALAC 5
;
[2002]
10 BLLR 919
(LAC) at 927J-928C and should be joined to the
proceedings.”
[9]
[17]
Likewise in
Selala,
while the Labour Court held the view that it had a discretion to join
a party who was not taken to conciliation, it was neither
called upon
to exercise a discretion nor did it do so. In that matter, it joined
a co-employee of the applicant as a respondent.
The co-employee was
employed in a position which the applicant alleged should have been
his. The co-employee’s rights were
therefore affected and it
had to be party to the proceedings. The joinder there was therefore
necessary before the applicant could
proceed with its case because it
is obliged to join all parties that may be affected by the relief it
seeks. The joining of the
co-employee was not consequent upon a
dispute that the applicant had with the co-employee, the applicant’s
dispute
was with its employer but the co-employee had to be cited as
his/her rights would have been affected in the matter. Since there
was no dispute between the co-employee and the applicant there was no
need for applicant to take the co-employee for conciliation.
[10]
[18]
NUMSA also referred to various other authorities pointing to the fact
that formalities imposed by a statute were not self-serving
and even
if the formalities required by statutes were peremptory, not every
deviation is fatal particularly if the deviation results
in the
statutory provision being achieved.
[11]
In this matter, so NUMSA argued, the object of the conciliation
process, that the parties sit together and try and resolve the
matter
was achieved: there was a proper referral although Steinmüller
was the only party cited; the representative of Steinmüller
or
its HR department was exactly the same as those representing
Intervalve and BHR; these representatives did not indicate that
they
would want NUMSA to sit and talk about its members who were dismissed
by Intervalve and BHR, nor do they say that now; hence
the objective
of the process has been achieved.
[19]
Finally, NUMSA argued that to close the door to an action against
Intervalve and BHR on the basis of non-compliance with s191
of the
LRA would represent an “
unbecoming approach to labour
legislation and deny certain members of NUMSA from having their day
in court. That a pragmatic and
realistic approach must be adopted in
interpreting legislation such as this so that constitutional right to
fair labour practice
triumphs over technical obstacles to access to
have one’s disputes determined.”
[20]
In this matter, at the conciliation meeting, following upon the
referral made by NUMSA citing only Steinmüller as the
employer,
NUMSA was informed that they needed to include other employers in the
dispute as Steinmüller was not the sole employer
of the members
on behalf of whom NUMSA referred the dispute for conciliation, yet it
failed to act with any degree of haste before
referring the dispute
for conciliation in respect of the other employees. When condonation
for the late referral was refused, it
again did nothing for months
and then sought via the back door, so to speak, to get Intervalve and
BHR included as respondents
in the action.
[21]
NUMSA’s excuse that it took months from the information
provided by Steinmüller, Intervalve and BHR to determine
whom
worked for who is unhelpful. The court is not told whether NUMSA had
signed membership forms which could or could not assist
them to
ascertain who the true employer was of each of the members or why
their wage slip was not obtainable (the employers indicated
that the
employees pay slips should have alerted NUMSA as to who was the
employer of the individual member). NUMSA’s averment
that its
members were all across the country and difficult to contact is less
than convincing, as this would imply that had the
employers made any
offer of settlement and if Numsa decided not to accept the offer
unless it spoke to its members it would take
months for NUMSA to
obtain instructions to respond. I do not accept this. Also having
regard to the fact that Intervalve BHR and
Steinmüller
constituted the three employers why were they not jointly cited as
employers when the matter was originally referred
for conciliation?
There was no requirement to set out exactly which member worked for
which employer at that stage, or it could
be explained that the
members worked for one alternatively for the other. It is evident
from the papers filed that NUMSA held the
view, which it still does,
that Steinmüller is the only real employer of its members in
this matter.
[22]
Neither
Selala
nor
Mokoena
is of any assistance to the
respondent. The view expressed in both those judgments that the
Labour Court has a discretion to condone
non-compliance with the
requirement that before a dispute can be referred to arbitration or
adjudication it has to be referred
to conciliation, as provided by
s191 of the LRA, is wrong. Rules that provide for the conduct of
proceedings in a court cannot
trump or override the clear provisions
of an Act. So even if NUMSA met the requirements of Rule 22 because
it could not have proceeded
against Intervalve and BHR at the time
they brought the application to join Intervalve and BHR, it cannot
succeed by simply piggybacking
on Steinmüller. Rule 22 like any
other Rule does not create a right it is there to accommodate
existing rights.
[23]
Finally, on the issue of constitutional right to have a day in court;
this right is not to be exercised at a litigant’s
pleasure. The
Act is clear. It makes provisions which must be complied with. There
is nothing unconstitutional about that. One
cannot fail to comply
with the steps that are required to be followed to enforce a right
and then complain that these steps which
you have failed to follow
now impinges your constitutional right, particularly when there is a
right to purge that failure and
no steps are taken or properly taken
to purge the failure. When NUMSA failed to refer the dispute to
conciliation timeously, it
applied for condonation for its late
referral which was not granted but NUMSA did not challenge this
refusal. In these circumstances,
it cannot be said they are being
denied their day in Court.
[24]
In summary: NUMSA failed to comply with s191(1) read with s191(3) in
that, it failed to refer on time the dispute against Intervalve
and
BHR to conciliation, nor was it able to show good cause why the
referral it made to the bargaining council was out of time.
In the
absence of conciliation, it is not entitled to refer its dispute for
adjudication to the Labour Court as provided in s191(5).
The Labour
Court does not have jurisdiction to entertain the dispute, and as
such it serves no purpose to consider whether the
application for
joinder has merit.
[25]
Notwithstanding the above, I need to add that the application for
joinder based as it is on Rule 22(2)(a), is without merit.
Intervalve
and BHR have no direct and substantial interest in the dispute
between NUMSA and its members on the one hand, and Steinmüller
on the other. All of the facts, circumstances and allegations
demonstrating that the demand which formed the basis of the strike
was the same against the three employers; that there was a single
dispute between the employees and their union on one hand and
the
three employers on the other; that the three employers acted in
unison in dismissing the members; that the dismissal was based
on the
same dispute, the same facts, the same strike, dealing through the
same disciplinary process using the same managerial team;
that there
was a single industrial action involving the members of NUMSA- all of
who are employed at the same place; and the employers
all took the
same decision in the same dispute against employees in the same
industrial action, are certainly grounds for holding
a single trial
but they do not demonstrate that Intervalve and BHR have interest in
the dispute between Steinmüller and NUMSA.
A judgment against
Steinmüller cannot affect Intervalve or BHR. These two companies
are for all intents and purposes separate
entities, a fact
acknowledged by NUMSA. There is nothing to show that a judgment
against Steinmüller would be of any consequence
to Intervalve or
BHR.
[26]
Had separate actions been instituted the matters would have been
consolidated, though more appropriately a single action is
what was
required to be instituted. Had NUMSA complied with the provisions of
s191(1) to (5) of the LRA and then sought this joinder,
it would
still have to show good cause as to why it failed to launch the
joinder within the time period set out in s191(11)(a).
[27]
In the circumstances, the appeal must succeed. As regards costs I am
of the view in terms of law and equity that this is a
matter where
there should be no order as to costs.
[28]
In the result I make the following order:
The
appeal succeeds with no order as to costs.
The
order of the Labour Court is set aside and substituted with the
following:
The application is dismissed
with no order as to costs
.
_____________
Waglay
JP
_____________
Francis
AJA
_____________
Dlodlo
AJA
APPEARANCES:
FOR
THE APPELLANTS:
Adv Anton Myburgh SC
Instructed
by Anton Bakker Inc
FOR
THE RESPONDENT:
Adv Paul Kennedy SC and Adv Jason Brickhill
Instructed
by Thompson and Haysom Inc
[1]
(2000)
21 ILJ 142 (LAC).
[2]
At
160A.
[3]
(2000)
21 ILJ 2102 (LC).
[4]
(2005)
26 ILJ 277 (LC).
[5]
At
page 279 G
[6]
At
page 279 E-F
[7]
At
page 281 J
[8]
See
in this respect
Foodgro
v Keil
[1999] 9 BLLR 875
(LAC),
NEHAWU
v University of Cape Town
2003 (2) BCLR 154
(CC) and
Anglo
Office Supplies (Pty) Ltd v Lotz
(2008) 29 ILJ 953 (LAC).
[9]
At
281F-H.
[10]
See
in this respect
Public
Servants Association v Department of Justice and
Others
[2004] ZALAC/(7 January 2004)unreported judgment of this court.
[11]
See
Unlawful
Occupiers of the School Site v City of Johannesburg
[2005]
2 All SA 108
(SCA).