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[2014] ZALAC 80
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Kalahari Country Club v National Union of Mineworkers and Another (CA16/2013) [2014] ZALAC 80; [2015] 4 BLLR 410 (LAC); (2015) 36 ILJ 1210 (LAC) (3 December 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA,
CAPE
TOWN
Case no:
CA16/2013
DATE: 03 DECEMBER
2014
Reportable
In the matter
between:
Kalahari Country
Club
.............................................................................................................
Appellant
And
National Union of
Mineworkers
..................................................................................
First
Respondent
Dire Phillip
Mabote
..................................................................................................
Second
Respondent
Heard: 11
September 2014
Delivered: 03
December 2014
Summary: Right to
representation by trade union – employer objecting to trade
union representation- evidence showing that
employee member of trade
union- employee entitled to representation. Principle of a purposive
approach to interpretation restated.
Arbitration award set aside
Labour Court’s judgment upheld Appeal dismissed with costs.
Coram:
Tlaletsi DJP, Hlophe AJA, Dlodlo AJA
JUDGMENT
Hlophe AJA
[1]
This is an appeal against the judgment of
Steenkamp J which raises the question of whether an employee is
entitled to be represented
at arbitration by a trade union, of which
he is a member, even if the employer objects to the validity of his
membership on the
basis that his job does not fall within the scope
of the union’s constitution. In
casu,
the employer challenged the validity of the employee’s
membership of his chosen trade union, National Union of Mineworkers
(NUM), on the basis that the employee’s job did not fall within
the scope of the union’s constitution. The court
a
quo
held that the employee, Mr Mabote,
was entitled to representation by an official of NUM at the
arbitration. Leave to appeal was
granted by the court
a
quo
to the Labour Appeal Court. The
matter was fully argued and judgment was reserved on 11 September
2014.
[2]
Briefly, the facts giving rise to this
appeal were that the second respondent (Mr Mabote) was dismissed by
Kalahari Country Club
(the club) from its employ as an Assistant Chef
on 14 August 2012. At the time of his dismissal, Mr Mabote was a
member of NUM.
The latter had been afforded organisational rights by
the club and subscriptions were also deducted. The dispute between
the parties
could not be resolved at the conciliation stage and,
accordingly, same was referred to arbitration. At the commencement of
the
arbitration proceedings, the club’s representative raised a
point in limine
objecting to Mr Mabote’s entitlement to representation at the
arbitration by NUM.
[3]
The basis of such an objection was that Mr
Mabote was not eligible to be a member of NUM because he was not
employed in any of the
industries described in NUM’s
Constitution. Furthermore, that because he could not validly and
lawfully be a member of NUM
for the aforementioned reasons, NUM’s
official did not meet the requirements of Rule 25(1)(b)(3) of the
Rules for the conduct
of proceedings before the CCMA (the CCMA Rules)
and was therefore not entitled to represent Mr Mabote. The arbitrator
ruled on
04 December 2012 that NUM could not represent Mr Mabote
during the arbitration proceedings and accordingly the matter was
rescheduled
for arbitration. The arbitrator’s ruling was
challenged in the Labour Court and the court
a
quo
ruled that Mr Mabote was entitled
to be represented by NUM representative during the arbitration
proceedings. The appellant was
represented by Mr Harrison before us.
The respondents were represented by Mr Cloete.
[4]
Mr Harrison’s argument was that the
court
a quo
erred in finding that the arbitrator had exceeded his powers in
holding that Mr Mabote could not be represented by NUM and that
he
was entitled to be represented by NUM officials in terms of Rule
25(1)(b)(3) of the CCMA Rules. The ruling of the arbitrator,
so ran
the argument, was one that any reasonable arbitrator could have
reached on the available material and was thus not open
to review.
This was so because section 200(1)(b) of the Labour Relations Act 66
of 1995 (LRA) and CCMA Rules 25 (1)(b)(3) do not
grant an employee
and his trade union an unfettered right to be represented by such
union.
[5]
Furthermore, the ILO convention 87 of 1984
also does not provide an unfettered right of freedom of association
as it expressly provides
that the right of members to join the union
is dependent on the condition that they comply with the rules of the
organisation which
they intend to join. In a nutshell, the argument
advanced on behalf of the appellant was that it would be
ultra
vires
for a trade union to admit to
membership a person who is ineligible according to its constitution.
[6]
There is, in my view, a short answer to Mr
Harrison’s submission. Firstly, the enquiry in this matter is
more factual than
legal. What are the facts? The facts are that Mr
Mabote was a member of NUM. This much was common cause between the
parties, so
much so that organisational rights were extended to NUM
by the club and the latter also deducted union subscription fees,
even
at the time when Mr Mabote was purportedly dismissed by the
club.
[7]
At all material times, Mr Mabote considered
himself a legitimate member of NUM. Thus purely as a matter of
fairness, Mr Mabote expected
(and was entitled) to be represented by
his trade union, NUM. The contrary is clearly untenable. It is trite
that in labour law
fairness is also an important consideration in
addition to whatever legal requirements may be applicable.
[8]
Secondly, as Mr Cloete who appeared for the
respondents argued, the appellant runs a recreation club and related
facility on the
premises of Sishen Iron Ore Company (SIOC) and lease
the premises as well as certain assets from SIOC for its purposes.
The club
previously belonged to and was owned and operated directly
by SIOC. The main business of SIOC is that of mining and “allied”
industries. Thus, even though on the face of it, appellant’s
business was only a recreational club, it clearly qualified
as a
business “allied” or “related” or “connected”
to NUM’s business.
[9]
Thirdly, the referral form (CCMA form 7.11)
and the conciliation certificate reflect that the dispute was
referred as “NUM
on behalf of Mr Mabote” its member. This
much was common cause between the parties. Appellant did not voice
any objections.
Instead appellant participated in the conciliation
proceedings and witnessed the outcome of such proceedings being
awarded the
conciliation certificate.
[10]
Fourthly, the evidence clearly shows that
Mr Mabote regarded himself as a member of NUM and the latter also
regarded him as its
member. That the latter intended to represent him
during the arbitration proceedings as it would represent any of its
members.
Quite clearly it is the duty of trade unions to represent
their members during arbitration or even during litigation for that
matter.
Mr Mabote was legally entitled to be represented by NUM and,
at no stage, prior to arbitration proceedings, did the appellant
object
to NUM’s right to represent Mr Mabote.
[11]
Fifthly,
even if I am wrong regarding what has been stated above, the present
case clearly calls for a purposive interpretation
rather than a
restrictive interpretation. In
County
Fair Foods (Pty) Ltd v CCMA,
[1]
the
union other than the respondent union, of which the employee was then
a member, had initially referred the dispute for conciliation.
The
Labour Appeal Court (LAC), per Davis AJA (as he then was), held that
this did not mean, however, that the withdrawal of the
first union
ended the dispute. Both unions had merely represented the affected
party i.e. the employee in question. Accordingly,
the LAC ruled that
the commissioner had accordingly and correctly rejected the company’s
objection to the employee being
represented by the respondent union.
[12]
See in this regard Para [17] – [18]
of the
Count Fair Foods
case where Davis AJA held:
‘
In my view,
Mr
Kahanovitz
has sought to place an unduly restrictive
interpretation upon these sections. In the present case, FFRWSA
completed LRA form 713
in terms of s 191 of the Act, the matter in
dispute being described as the alleged unfair [dismissal] of Mr
Joseph Alexander to
be resolved through arbitration. It meant that
there was a dispute between appellant and the union, which concerned
another party,
being Joseph Alexander. Indeed in the certificate of
outcome of dispute referred for conciliation, the dispute is
described as
being between 'FFRWSA obo Joseph Alexander and
appellant'.
Accordingly,
FFRWSA had done no more than represent a member in a dispute. When
third respondent assumed that role, after FFRWSA
withdrew, it did no
more than represent the affected party to the dispute, being Mr.
Alexander. For this reason I find there to
be no merit in the
objection by appellant, namely that second respondent had committed
an error of law by admitting third respondent
to the proceedings,
which error would justify a successful application for review. In
short, there is no basis on which it could
be said, within the
context of the facts of the present dispute, that third respondent
did not fall within s 138(4)
(c)
as a recognized representative
of Alexander.’
[13]
I agree with the court
a
quo
that to hold otherwise would place
an unduly restrictive interpretation on Rule 25(1)(b)(ii) of the CCMA
Rules. A purposive interpretation
to the CCMA Rules is called for.
Furthermore as Steenkamp J pointed out in the Court
a
quo
, a purposive interpretation of the
LRA is mandated by section 1 read with section 3(a) of the LRA. The
LAC has furthermore emphasized
the link between the purpose of the
LRA and section 23 of the Constitution, adding that if the LRA is to
achieve its constitutional
goals, the courts must be vigilant to
safeguard those employees that are particularly vulnerable to
exploitation.
[14]
In conclusion, in all circumstances of the
case, I would dismiss the appeal as a being altogether without merit.
Order
[15]
The appeal is dismissed with costs.
Hlophe AJA
I
agree
Tlaletsi DJP
I
agree
Dlodlo
AJA
APPEARANCES:
FOR THE
APPELLANT: Mr Harrison
FOR
THE RESPONDENT: Mr Cloete
[1]
[2003]
2 BLLR 134
(LAC); (2003) 24 ILJ 355 (LAC).