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[2016] ZALAC 105
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CMI Business Enterprises CC v September and Others (JA 111/2014) [2016] ZALAC 105 (26 October 2016)
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case no: JA 111/2014
CMI BUSINESS
ENTERPRISES CC
Appellant
and
THEO
SEPTEMBER
First
Respondent
DEAN
SEPTEMBER Second
Respondent
ROLAND
PAULSON Third
Respondent
Heard:
22 November 2015
Delivered: 26 October
2016
Summary:
Rescission of judgement – section 165 of the Labour Relations
Act – whether order granted erroneously for want
of
jurisdiction.
Jurisdiction
of the Labour Court – dispute referred for conciliation
different from one alleged in the statement of case –
whether
the real dispute conciliated – whether Labour Court had
jurisdiction to determine a dispute under circumstances in
which it
is not clear whether it was conciliated – question a factual
one to be determined only with reference to the referral
form and
certificate of outcome.
Coram:
Tlaletsi DJP, Musi JA
et
Makgoka AJA
JUDGMENT
MAKGOKA
AJA
[1]
This is an appeal against the whole
judgment and order of the Labour Court, Johannesburg (Gush J) handed
down on 26 June 2014. In
terms of the judgment, the Labour Court
dismissed with costs, the appellant’s application for
rescission of an order of that
court made on 15 August 2012, as well
as a default judgment granted against the appellant in favour of the
respondents on 12 February
2013. The appeal is with leave of the
Labour Court, which was granted on 29 October 2014.
[2]
The issue in the appeal is whether the
dispute, which served before the Labour Court, had been subject to
conciliation. If it had
not been, the Labour Court did not have
jurisdiction to determine the dispute. The Labour Court found that
the issue had been conciliated,
and had been properly referred to it
for determination, and that it therefore, had jurisdiction.
The facts
[3]
The appellant, a close corporation,
conducts business of maintenance and mechanical field services in the
mining sector in South
Africa and on the continent. Its majority
shareholder and the controlling mind is Mr Johannes Gerhadus Cronjé
(Cronjé).
The respondents were all initially employed by the
appellant during August 2009 as technician’s assistants. They
worked for
the appellant until 13 September 2011. The circumstances
of their departure from the appellant’s employment are
controversial,
and form the very essence of the dispute between the
parties. According to the respondents, they were constructively
dismissed
by the appellant by being subjected to racial
discrimination. On the other hand, the appellant denies those
allegations and insists
that the respondents absconded from duty for
no apparent reason.
The
conciliation
[4]
On 14 September 2011, the respondents
referred a dispute to the Commission for Conciliation, Mediation and
Arbitration (CCMA) by
completing and submitting the LRA 7.11 form.
The nature of the dispute was identified to be unfair discrimination
in terms of s
10 of the Employment Equity Act 55 of 1998 (EEA). The
summary of the facts of the dispute was stated to be “Racial
Discrimination,
verbal abuse.” As to the outcome, they desired
from the conciliation, the respondents said that they required “the
employer to stop discriminating against [them].” A conciliation
meeting took place under the auspices of the CCMA on 1 November
2011
in the unfair discrimination dispute. The appellant was represented
by Mr Andrew Lewis (Lewis) an official of an employer
organisation to
which the appellant belonged. The issue could not be resolved, and a
certificate of outcome was issued by the CCMA
commissioner on 1
November 2011, indicating that an “unfair discrimination”
dispute remained unresolved after conciliation.
Respondents’
statement of case in the Labour Court
[5]
On 12 January 2012,
the respondents served and filed their statement of case in the
Labour Court, seeking the following relief against
the appellant:
1.
That their resignations amount to automatic
unfair dismissals;
2.
In the alternative, that their resignations
amount to unfair dismissals;
3.
In the event that their’ dismissals
are automatically unfair, that the appellant should compensate them
with an amount equivalent
to 24 months remuneration;
4.
In the alternative, and in the event that
their dismissals are unfair but not automatically unfair, that the
appellant should compensate
them with an amount equivalent to their
12 months’ remuneration;
5.
That the appellant be ordered to return
their academic and professional certificates;
6.
That the appellant pays the costs of the
suit.
[6]
In their statement of case, the respondents
stated that the nature of the referral was in respect of
“automatically unfair
dismissal and/or unfair dismissal”.
They stated that they were employed by the appellant as general
workers in August 2009
which required them to perform various duties
(primarily technical and mechanical) on mining-related projects
throughout the African
continent. The respondents further alleged
that they were never given any job description or written contract
but acted on the
instruction of Cronjé.
[7]
According to the respondents, Cronje made
their working conditions intolerable and subjected them to racial
discrimination. The
respondents stated at length, the incidents of
the alleged racial discrimination, which included: being referred to
in derogatory
terms such as kaffirs and animals; being forced to
sleep in toilets while on assignments away from home; physical
assault and abuse;
being assigned menial and lower-level tasks; and
being denied training opportunities.
[8]
The respondents further stated that Cronjé
often wore to work a T-shirt with the so-called “Vierkleur’
- a flag
of the old Transvaal Boer Republic - and the words “100
Boer” emblazoned on the chest. Cronjé is said to have
often encouraged white employees to also wear similar T-shirts at
work and even informed them where such apparels could be purchased.
The respondents further alleged that due to the above conditions,
they attempted at various points to terminate their employment
with
the appellant, but were unable to do so as Cronjé was in
possession of their written profiles and qualification certificates,
of which they did not have copies. However, by September 2011 their
working conditions had become so intolerable that on 13 September
2011 they sent Cronjé a cellular phone text message informing
him that they were resigning as they could no longer tolerate
the
working conditions.
The appellants’ statement of defence
[9]
The appellant filed its statement of
defence on 20 January 2012, in the form of an affidavit deposed to by
Lewis, who, as stated
earlier, had represented the appellant during
the conciliation at the CCMA. The affidavit was clearly drafted
without legal assistance,
as it is clumsily worded, with a lot of
spelling errors. Generally, it is a very inelegant document. However,
the essence of its
contents is clear: Lewis denied, in broad terms,
the allegations of discrimination against the respondents, and
pointed out that:
‘
No
racial discrimination existed in the work place, the applicant
submitions (sic) is a fabricated (sic). The respondent is a member
of
a none-white (sic) employers organasation (sic), this bring the
conclusion that if he was racist he could associate him with
a none
white organasation (sic). Never did the respondent ulter (sic) any
remarks, of black and white. The respondent employed
22 none-white
employees and all are treated in a fair manner’
[10]
As to the allegation of intolerable working
conditions, Lewis similarly painted them with a broad brush of denial
as follows:
‘
This
is denied, if those conditions as alledges (sic) by the applicants
were as terrible (sic) as they claim, why did they stick
so long with
the respondent. There’s no substance to they (sic) claim. The
applicants still owes (sic) the respondent moneies
(sic) and look for
an easy way out, with their misleading application.’
[11]
In conclusion, Lewis contended that “the
application does not qualify with (sic) section 187 of the Act or
section 186E of
the Act of the LRA (sic) of 1995” and prayed
for the application to be dismissed with cost (sic).
The
appellant’s failure to attend a pre-trial conference
[12]
In terms of rule 6(4) of the Labour Court
Rules, the parties were required to hold a pre-trial conference
within 10 days of
the delivery of the appellant’s statement of
defence. On 25 January 2012, the respondents’ attorneys sent a
letter
to Lewis, care of Ad Finem (the employer organisation to which
the appellant is a member), requesting the holding of a pre-trial
conference. There was no response to that letter, which was followed
by another one on 30 January 2012. On 1 February 2012, Lewis
responded, and proposed that the pre-trial conference be held on a
date to be allocated by the registrar of the Labour Court. This
was
conveyed to the registrar by the respondents’ attorneys in a
letter dated 6 February 2012, in which the registrar was
requested to
set down a pre-trial conference.
[13]
The registrar set the pre-trial conference
down for 15 August 2012 at 10h00. The registrar sent the notice of
set down to the employer
organisation by way of facsimile on 22 May
2012, informing it that the matter had been enrolled for a pre-trial
conference before
a judge on 15 August 2012. Despite this, there was
no representation on behalf of the appellant at the pre-trial
conference, as
a result of which the presiding judge granted an order
that the matter had become unopposed due to the appellant having
failed
to attend the pre-trial conference. During October 2012, the
respondents’ attorneys applied for default judgment. On 22
January
2013, the registrar, by facsimile, informed the employer
organisation and the respondents’ attorneys that the matter had
been enrolled for default judgment on 8 February 2013 at 10h00.
Default
judgment and its aftermath
[14]
On 8 February 2013, the application
for default judgment came before the Labour Court (Lagrange J) who
reserved judgment and delivered
it on 12 February 2013, in which he
made the following remarks:
‘
I
am satisfied that the applicants were constructively dismissed by the
respondent when they resigned on 13 September 2011 after
being
required to work under intolerable working conditions which entailed
racial abuse, and racially discriminatory treatment
in a variety of
forms including disparate treatment when it came to accommodation,
food and the like. The extent of abuse is reminiscent
of an era of
white supremacy whose traces should long have vanished…[I]
find that the applicants were dismissed for an automatically
unfair
reason based on their race, in terms of section 187(1)(f) of the
Labour Relations Act, 66 of 1995 (‘the LRA’).
On the
question of relief, given the facts of the matter, there is no reason
not to award the maximum compensation the LRA permits…’
[15]
The Labour Court accordingly granted
default judgment in favour of the respondents against the appellant
in terms of which the appellant
was ordered to pay each of the
respondents compensation equivalent to 24 months remuneration. Both
the first and second respondents
were each to be paid R240 000,
while the third respondent was to receive R192 000. The payment
of the above amounts was
ordered to be made within 15 days of the
date of the judgment. The appellant was also ordered to pay the
respondents’ costs.
[16]
On the same day the judgment was handed
down, 12 February 2013, the respondents’ attorneys wrote to
Lewis informing him of
the judgment, and demanding payment of the
total sum of R672 000 before 27 February 2013, on the pain of a
writ of execution.
There was no response to that letter, nor was any
payment made as demanded. On 5 March 2013, the respondents’
attorneys forwarded
another letter to Lewis, again demanding that
payment be made by no later than 11 March 2013, failing which a writ
of execution
would be issued. Again, there was no response, either in
the form of a letter or payment. On 14 March 2013, the respondents’
attorneys obtained a writ of execution against the appellant and
handed it over to the sheriff of Springs for execution. It is
not
clear on the papers why the warrant was not executed.
Application
for rescission
[17]
On 24 April 2013, the appellant launched
the application to rescind the order granted against it on 15 August
2012, as well as the
judgment granted against it on 12 February 2013.
In both instances, the appellant relied on s 165(a) of the Labour
Relations Act
65 of 1995 (the LRA), alternatively rule 16A(1)(a)(i)
of the Labour Court’s Rules, or the common law. The affidavit
in support
of the rescission application was deposed to by Cronjé,
who explained that the matter had been entrusted to Lewis, in his
capacity as an official of the employer organisation to which the
appellant belonged. Lewis had, from the time the matter was entrusted
to him, continuously assured him that all was on track for the
appellant to defend the respondents’ claims against it. On
12
March 2013, Lewis telephonically informed the appellant’s
administrative secretary that the respondents demanded R672 000
and that he had to consult an advocate about it. Still, Lewis assured
the secretary that everything was under control and that
he would
inform the appellant of any further developments. Lewis never
informed the secretary during that telephone conversation
of the
default judgment granted against the appellant on 12 February 2013.
[18]
On 3 April 2013, the appellant received, by
facsimile, the writ of execution issued against it, from the local
sheriff. This was
the first time he, Cronjé, obtained
knowledge of the default judgement granted against the appellant. The
secretary contacted
Lewis telephonically and expressed unhappiness
about how the matter had being handled, leading to default judgment
being obtained
against the appellant. On the same day, 3 April 2013,
he instructed the appellants’ former attorneys to propose a
settlement
by way of an offer, which the attorneys did on 8 April
2013. On 10 April 2013, the respondents made a counter-offer, thereby
rejecting
the appellant’s offer. On 19 April 2013, the
appellant terminated the mandate of its attorneys and instructed its
current
attorneys of record. It was only on perusal of the Labour
Court file that it became clear as to how judgment was granted by
default
against the appellant. On 22 April 2013, the appellant
instructed its attorneys to proceed with the rescission application,
which
was launched on 2 May 2013.
[19]
With regard to the allegations made by the
respondents against the appellant, and him in particular, Cronjé
denied the thrust
of those allegations. He dealt at length with the
relationship between him and the respondents. Of relevance is what he
says are
the events leading to the respondents leaving the employ of
the appellant on 13 September 2011. He says that on 12 September
2011,
the respondents each borrowed R200 from him to buy cigarettes.
On 13 September 2011, he noticed that the respondents were absent
from work. He received a text message later that day from one of the
respondents, which he perceived as a threat against him. He
responded
it, accordingly. There was nothing in the text message that the
respondents were resigning. At no stage prior to 12 September
2011
did the respondents inform him of any complaints concerning working
conditions.
[20]
It was submitted on behalf of the appellant
that the default judgment was erroneously granted as the Labour Court
lacked jurisdiction
to determine an unfair dismissal dispute on the
basis that the respondents never referred an unfair dismissal dispute
to the CCMA
and that the nature of the dispute that had been referred
to conciliation had changed from unfair discrimination to an unfair
and/or
automatically unfair dismissal dispute before the Labour
Court. The appellant complained therefore that the respondents
introduced
a dispute in the Labour Court which had never been
referred to the CCMA for conciliation. In view thereof, it was argued
on behalf
of the appellant that the Labour Court did not have
jurisdiction to grant either the order of 15 August 2012 or the
default judgment
on 12 February 2013. For those reasons, the
appellant argued that the order and the judgment referred to above,
fell to be rescinded
in terms of s 165 as having been erroneously
sought and granted.
[21]
In their answering affidavit, the
respondents stated that during the conciliation, it became apparent
that the “true nature”
of the dispute was primarily one
of constructive dismissal due to unfair discrimination. According to
the respondents, the issue
was extensively canvassed after the
commissioner had specifically brought it to the attention of the
parties. As such, so said
the respondents, the Labour Court was
competent and clothed with the necessary jurisdiction to determine
the issue and grant the
orders it did. Thus, according to the
respondents, the order could not be said to have been erroneously
granted.
Judgment
of the Labour Court
[22]
The matter was heard by the Labour Court on
30 May 2014 and judgment was handed down on 26 June 2014. The Labour
Court dismissed
the application with costs based on the following
findings:
(a)
Neither the order granted by default on 15
August 2012 nor the default judgment granted on 12 February 2013 were
granted erroneously;
(b)
The appellant has failed to provide a
reasonable and acceptable explanation for its default or that it has
a
bona fide
defence
and good prospects of succeeding in its defence should the order be
rescinded.
[23]
In reaching the above conclusions and
dismissing the appellant’s application, the Labour Court
accepted the respondents’
argument, and concluded that during
the conciliation the automatically unfair dismissal based on racial
discrimination was brought
up and conciliated, such that the real
dispute was conciliated and referred to the Labour Court. In coming
to that conclusion,
the Labour Court relied on para 8 of the minority
judgment in
National Union of
Metalworkers of South Africa v Driveline Technologies (Pty) Ltd and
Another
;
[1]
(
Driveline
)
in which Conradie JA stated that the factual matrix should be
considered to determine whether the real dispute between the parties
had been referred for conciliation. I shall comment on the
Driveline
judgment later. Furthermore, the Court
relied on rule 15 of the rules for the conduct of proceedings before
the CCMA which provides
that the nature of the dispute must be
identified “as described in the referral document or as
identified by the commissioner
during the conciliation process.”
[24]
The learned judge proceeded from that
premise that the commissioner would have determined the nature of the
dispute to include an
automatically unfair dismissal on the grounds
that the appellant had unfairly discriminated against the
respondents. The learned
judge reasoned that to “strictly
interpret the nature and description of the dispute in the referral
would frustrate the
function of the commissioner tasked with
conciliating the dispute.” The learned judge went on to say the
following:
‘
In
this matter it is abundantly clear that during the course of the
conciliation the dispute that was referred to conciliation was
determined to be a dispute based on unfair discrimination that
warranted referral to the Labour Court. Lewis attended the
conciliation
and it is inconceivable that he did not report back to
the applicant as to what had transpired during the conciliation. In
the
statement of opposition Lewis states that the respondents had
absconded and that the court had no jurisdiction. This convincingly
suggests that Lewis was aware of the nature of the respondents’
dispute that was conciliated, viz that it involved an allegation
that
they had been dismissed.
The
commissioner identified the dispute as one pertaining to unfair
discrimination and albeit gratuitously, advised the parties
that the
dispute could be referred to the Labour Court. There can be no doubt
that the respondents’ cause of action embodied
in their
referral namely that they were constructively dismissed is based on
unfair discrimination… [I]n this matter it
is abundantly clear
that the dispute between the applicant and the respondents
was
referred
to conciliation and that
a
certificate of outcome recording that the dispute had not been
resolved was issued.
On
the strength of this alone there can be no doubt that the court had
jurisdiction to consider the matter.’
(Emphasis
in the original text.)
This
Court
The
parties’ main contentions
[25]
In this Court, the appellant persisted in
its argument that the Labour Court lacked jurisdiction to determine
the matter as the
dispute set out in the appellants’ statement
of case was not one conciliated in the CCMA. On that basis, the
appellant relied
primarily on s 165 of the LRA for the rescission of
the order and judgment of the Labour Court, made on 15 August 2012
and 12 February
2013, respectively, on the basis that both were
erroneously granted. The respondents, on the other hand, contend that
the facts
demonstrate that constructive dismissal was considered
during conciliation. Before I consider the parties’ respective
arguments,
I set out first, the legal framework in terms of which
applications are to be considered.
Legislative
and legal framework for rescission applications
[26]
Section 165 of the LRA provides that the
Labour Court, acting of its own accord or on the application of any
affected party may
vary or rescind a decision, judgment or order
erroneously sought or erroneously granted in the absence of any party
affected by
that judgment or order. Rule 16 A of the Labour Court’s
Rules , on the other hand, provides for the same relief as s 165,
except that in terms of rule16A(1)(b) read with sub-rule 2(b) the
applicant is required to show “good cause” for rescission
for an order granted in his or her absence. What is more, if the
application is brought in terms of rule 16A(1)(b), it must be
brought
within 15 days after the party had acquired knowledge of an
order of judgment granted in the absence of that party.
[27]
In the present case, the appellant based
its application, in the main, on s 165, contending that the judgment
of 12 February 2013
was erroneously granted in its absence because
the Labour Court did not have jurisdiction to adjudicate the matter.
It is worth
mentioning at this stage that in terms of s 165, the
applicant for rescission does not have to show good cause or that he
or she
was not in wilful default. Once the court holds that an order
or judgment was erroneously granted, it should rescind it without
further enquiry into the latter considerations. See
Superb
Meat Supplies CC v Maritz
[2]
and
Lumka and Associates v Maqubela
[3]
where this Court confirmed that position.
[28]
It is generally accepted that a judgment is
erroneously granted if there existed at the time of its issue, a fact
which the judge
was unaware of and which would have precluded its
granting and which would have induced the judge, if aware of it, not
to grant
judgment. It is further accepted that an order or judgment
is erroneously granted if there was an irregularity in the
proceedings
or if it was not legally competent for a court to make
that order.
[4]
The
issue in dispute
[29]
In the present case, the issue forming the
basis of the alleged irregularity is whether the dispute which served
before the Labour
Court had been conciliated. Differently put, and
more pointedly, whether the constructive dismissal based on unfair
discrimination
had been conciliated before referral to the Labour
Court. If the issue had been conciliated, the Labour Court had
jurisdiction
to determine the dispute and its order of 15 August 2012
and its judgment of 12 February 2013, were accordingly, granted
validly
and competently, and not erroneously. Before I consider the
issue, I analyse the framework for referral of disputes conciliated
in the CCMA or in a bargaining council with jurisdiction.
Framework
for referral of disputes from CCMA to the Labour Court
[30]
Referral of disputes from the CCMA to the
Labour Court is governed by s 191 of the LRA, in particular, s 191(1)
[5]
and 191(5).
[6]
In
Driveline
,
this Court considered those provisions. There, a dispute was referred
for adjudication to the Labour Court after unsuccessful
conciliation.
The question was whether the employees’ statement of case in
the Labour Court could be amended to broaden the
dispute’s
characterisation. At issue was whether the dispute referred for
conciliation, namely an unfair retrenchment, could
be amended to
encompass an automatically unfair dismissal. This Court held
unanimously that it could.
[31]
However, on the question whether the Labour
Court has jurisdiction to adjudicate a dispute not referred to
conciliation at all,
there was disagreement. Hendricks JA, in a
minority judgment, concluded that such a dispute could still be
adjudicated by the Labour
Court. However, the majority (Zondo AJP and
Mogoeng AJA) held that the wording of s 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.
[7]
The reasoning of the
Driveline
majority on this issue received the imprimatur of the Constitutional
Court in
National Union of Metalworkers
of South Africa v Intervalve (Pty) Ltd and Others.
[8]
[32]
The upshot of
Driveline
is, therefore, two-fold. First, that where the real issue was
conciliated, the employee’s statement of case can be amended
to
broaden the issue’s characterisation. However, where the issue
was never referred to conciliation at all, the Labour Court
does not
have jurisdiction to determine the dispute. In short, it is now
settled that referral for conciliation is a precondition
to Labour
Court jurisdiction. Obviously, where a dispute arises as to whether
the real dispute was conciliated, that is a factual
enquiry which
must be determined with reference to the facts of a particular case.
Such an enquiry, however, falls within a very
narrow compass, in my
view. It can only be determined with reference to two aspects,
namely, the characterisation of the dispute
on the referral form and
the contents of the certificate of outcome. The contents of the
certificate of outcome are especially
important in this regard, for
they mirror the nature of the real dispute identified in the
conciliation.
Was the dispute of unfair dismissal conciliated?
[33]
It is common cause that the dispute which
the respondents had referred for conciliation was for unfair
discrimination. The referral
form makes no mention of unfair
dismissal, even though that is one of the options available on the
form. Part “B” of
the referral form, which is to be
completed for dismissal disputes only, was not only left uncompleted,
but it was crossed out
with the words “cancelled” in
between two lines. The nature of the dispute was stated to be an
unfair discrimination
in terms of s 10 of the EEA. Under paragraph 6
of the form, the respondents were required to state the outcome they
desired from
conciliation, to which they answered: “Employer to
stop discriminating us”. As to the contents of the certificate
of
outcome of the dispute, the dispute which remained unresolved and
to be referred to the Labour Court was one of unfair discrimination.
[34]
As stated earlier, the Labour Court started
from a premise that the respondents had been constructively dismissed
on the basis of
racial discrimination. With respect to the learned
Judge, the evidence distilled from the referral form and the
certificate of
outcome does not support this premise. If anything,
those two documents point to the opposite direction, namely, that the
dispute
referred for conciliation was one of unfair discrimination,
and that this is the dispute which the commissioner certified to have
been unresolved. It was nowhere stated in the referral form that
dismissal was part of the dispute. The Labour Court seems to have
acknowledged this fact when it observed, correctly in my respectful
view, that “during the course of the conciliation the
dispute
that was referred to conciliation was determined to be a dispute
based on unfair discrimination that warranted referral
to the Labour
Court.”
[35]
What is more, it does not seem that the
respondents considered themselves to have been dismissed (whether
automatically unfairly
or simply unfairly) when they approached the
CCMA. I am fortified in this conclusion by their own answer as to
what they sought
as the outcome of the conciliation. As stated above,
they sought the appellant to “stop discriminating”
against them.
Clearly, this is not a mind-set of an employee who
considered his or her relationship with an employer to have been
terminated.
If the contrary was true, the respondents would surely
have indicated compensation as the desired outcome of the
conciliation.
It is therefore by no means clear that the respondents
were dismissed.
As explained in
State
Information Technology Agency Ltd v Sekgobela,
[9]
with regard to whether a dismissal had
occurred:
‘
It
is clear that section 192 provides for a two-stage process in
dismissal disputes. First the employee who alleges that he/she
was
dismissed must prove that there was in fact dismissal and once the
existence of the dismissal is established then the employer
must
prove that the dismissal was fair. It is clear therefore that the
onus
to prove the existence of the dismissal lies first on the employee.
The word "must" in Section 192 means that the provisions
of
the section are peremptory. The employee must set out the facts and
legal issues which substantiate his assertion that the dismissal
occurred. Once the employee has proved that dismissal did take place,
the
onus
is shifted to the employer who must prove that the dismissal was for
a fair reason such as for instance misconduct.’
(Footnote omitted.)
[36]
The remarks in the preceding paragraphs
should, however, not be construed as a definitive finding by this
Court that the respondents
were not dismissed. It is not for this
Court to make that finding. Those remarks are
obiter
,
made in the context of determining whether the issue of unfair
dismissal was properly conciliated by the commissioner at the CCMA,
to clothe the Labour Court with the necessary jurisdiction.
[37]
In coming to the conclusion that an unfair
dismissal dispute had been conciliated, the Labour Court misdirected
itself in two respects.
First, by relying on the inadmissible
evidence of the respondents as to what supposedly transpired during
the conciliation. That
is impermissible. By adopting that approach,
the Labour Court went against its own jurisprudence in which it has,
correctly in
my respectful view, held that evidence relating to
conciliation discussions is not admissible in the subsequent Labour
Court proceedings.
[10]
Second, the Labour Court seems to have been influenced in its finding
(that the unfair dismissal was conciliated) by the fact that
the
commissioner advised the parties to refer the matter to the Labour
Court. That is irrelevant. The Labour Court’s jurisdiction
to
determine a dispute cannot be founded on an erroneous referral of a
dispute to it. That question is dependent on legal considerations,
and in particular, the legislative framework governing a particular
situation.
[38]
Unfair discrimination and automatically
unfair dismissal, though related, remain different claims and have
different resolution
procedures. The former is claimed under the EEA
while the latter is claimed under the LRA. Section 10 of the EEA
makes plain that
discrimination disputes must be distinguished from
dismissal disputes. It provides that a dispute in the context of the
section
excludes a dispute about an unfair dismissal, which must be
referred to the appropriate body for conciliation and arbitration or
adjudication in terms of Chapter VII of the LRA. On the other hand,
s
187(1)(f) of the LRA deals with dismissals. It provides that a
dismissal is automatically unfair if the employer, in dismissing
the
employee, acts contrary to Section 5 or, if the reason for dismissal
is that the employer unfairly discriminated against an
employee
directly or indirectly on any arbitrary ground, including, among
others, race.
[39]
In
Wardlaw v
Supreme Mouldings (Pty) Ltd
,
[11]
this Court made the following apposite remarks in the context of ss
157(5) and 158(2):
‘
[Section]
157(5), read with s 158(2), clearly envisages a situation where the
Labour Court initially takes as correct the employee’s
allegation of what the reason for dismissal is and proceeds with the
process of hearing the matter until it is “
apparent
”
to it that the reason for dismissal is a different one and it is one
falling under section 191(5)(a). In such a case s 158(2)
is
triggered. Once it is apparent to the court that the dispute is one
that ought to have been referred to arbitration, the court
deals with
the matter in terms of either s 158(2)(a) or (b). It cannot deal with
it outside the ambit of those provisions. Accordingly,
it has no
power to proceed to adjudicate the dispute on the merits simply
because it is already seized with the matter. To do so
would be in
conflict with provisions of s 157(5) and 158(2) of the Act.
[12]
[40]
In my view, the facts in the present matter
are analogous to those in
F&J
Electrical CC v MEWUSA.
[13]
There, the dismissed employees’ case during arbitration was
that they had been dismissed for a reason unknown to them, while
the
employer’s stance was that they were dismissed for operational
requirements. The commissioner accepted the employer’s
explanation and the employees referred the dispute to the Labour
Court. They again alleged that the reason for their dismissal
was
unknown to them. The employer did not file a statement of defence,
and in the application for default judgment the union and
the
employees filed affidavits in which, for the first time, they alleged
that the reason for the dismissal was their union membership.
The
affidavits were not served on the employer. The Labour Court granted
default judgment for compensation on a heightened scale.
The
employer’s application for rescission was dismissed, and its
application for leave to appeal was refused by both the
Labour Court
and this Court. The employer turned to the Constitutional Court,
which granted the rescission application, because
the employees’
cause of action was different to the one referred to the CCMA.
Summary
[41]
To sum up, I conclude that the Labour
Court’s conclusion that the unfair dismissal dispute was
conciliated, is not supported
by any admissible evidence. The Labour
Court was not entitled to venture beyond the referral form and the
certificate of outcome
in an endeavour to determine what dispute was
conciliated. Therefore, the Labour Court should have found that it
did not have jurisdiction
to make either the order of 15 August 2012
or judgment of 12 February 2013. It follows in the result that the
order and the judgment,
were respectively, sought and granted
erroneously, as envisaged in s 165 of the LRA. They therefore fall to
be rescinded on that
basis. Given this conclusion, it becomes
unnecessary for me to consider whether the appellant has demonstrated
good cause.
Costs
[42]
Finally, the issue of costs. The awarding
of costs in the Labour Court is governed by s 162 of the LRA, which
provides that in making
orders for payment of costs, the Court has to
have regard to the requirements of law and fairness. The rule of
practice that costs
follow the result does not govern the making of
costs orders in labour disputes. Such orders are made in accordance
with the requirements
of law and fairness. See in this regard
MEC
for Finance, Kwazulu-Natal and Another v Dorkin N.O. and Another.
[14]
The requirements of law and fairness are on equal footing, and none
is secondary to the other. See in this regard
Callguard
Security Services (Pty) Ltd v Transport and General Workers Union and
Others
[15]
and Xaba v Portnet Ltd
.
[16]
In the present case, the successful appellant is a corporate entity
against individual employees who are not supported by a trade
union.
In my view, therefore, the requirements of law and fairness dictate
that no order should be made regarding the costs of
appeal.
Concluding
remarks
[43]
Before I conclude, there is a related issue
which deserves comment. In concluding that the order and the judgment
were erroneously
sought and granted and that the Labour Court lacked
jurisdiction, this Court by no means condones any of the racism
alleged against
the appellant and in particular, its main member,
Cronjé. Most of the allegations are untested. However, two
aspects of
those allegations are common cause. First, that Cronjé
often referred to the respondents in derogatory terms. In these
proceedings,
there are instances where Black people are referred to
as “non-white”. I find this deeply offensive. Black
people are
not a negative or an appendage of whites. They are a
people in their own right, and do not owe their existence to, and are
not
negatives of whites. Second, that Cronje often came to work
wearing a T-shirt emblazoned with the old Transvaal Republic
“
Vierkleur”
flag and the words “100% Boer”. During argument, counsel
for the appellant sought to explain that by suggesting that
Cronjé
was simply displaying his “culture”.
[44]
That submission was unfortunate. There is
nothing “cultural” about this. It is a display of one’s
political beliefs.
In the South African context, that flag, for many
in our country, conjures up very painful memories of a brutal system
of colonialism
and institutionalised racism. It is offensive to the
majority of people of our country, who have made a ringing rejection
of that
ugly and racist episode in our history. The ideology behind
that flag is indubitably racist and bigoted. It certainly has no
place
in an open and democratic society like ours, premised on the
foundational values of human dignity, equality and human rights.
Order
[45]
In the result the order that I make is the
following:
1.
The appeal succeeds;
2.
The order of the Labour Court is set aside
and its stead the following is substituted:
‘
1.
The order made by this Court on 15 August 2012, and the judgment
handed down by this Court on 12 February 2013, are hereby,
respectively rescinded in terms of
section 165
of the
Labour
Relations Act 66 of 1995
;
2.
There
is no order as to the costs of the application.’
3.
There is no costs order with regard to the
costs of appeal.
T.M. Makgoka AJA
Tlaletsi
DJP and Musi JA concur in the judgment of Makgoka AJA
APPEARANCES:
FOR THE
APPELLANT:
Adv. F.J. Wilke
Instructed by Klopper
Jonker Inc., Alberton
FOR THE
RESPONDENTS: Adv. G.
Fourie with him Adv. Z. Ngwenya
Instructed by Bowman
Gilfillan, Sandton, Johannesburg
[1]
[2007] ZALC 66
;
2000 1 BLLR 20
LAC; (2000) 21 ILJ 142
(LAC).
[2]
(2004) 25 ILJ 96 (LAC) at para 15.
[3]
(2004) 25 ILJ 2326 (LAC) at para
26.
[4]
See
Nyingwa
v Moolman NO
1993 (2) SA
508
(Tk) and
Stander v Absa
Bank
1997 (4) SA 873
(E);
Lezimin 2557 t/a BG
Construction and Sheriff of the High Court and Another
(J1469/07)
[2008] ZALC 95
(16 July 2008) at para 23;
Naidoo
v Matlala NO
2012 (1) SA
143
(GNP) at 153C; Cilliers, Loots and Nel
The
Civil Practice of the High Courts and the Supreme Court of Appeal of
South Africa
5ed (2009)
Juta Cape Town at 933.
[5]
Section 191(1)
of the
LRA provides:
‘
(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;
(ii)
90 days of the date of the act or omission which allegedly
constitutes the unfair labour practice or, if it is a later date,
within 90 days of the date on which the employee became aware of the
act or occurrence.’
[6]
Section
191(5)
reads:
‘
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)
the council or the Commission must arbitrate the dispute at the
request of the employee if—
(i)
the employee has alleged that the reason for dismissal is related to
the employee’s conduct or capacity, unless paragraph
(b)(iii)
applies;
(ii)
the employee has alleged that the reason for dismissal is that the
employer made continued employment intolerable or the
employer
provided the employee with substantially less favourable conditions
or circumstances at work after a transfer in terms
of
section 197
or
197A
, unless the employee alleges that the contract of employment
was terminated for a reason contemplated in
section 187
;
(iii)
the employee does not know the reason for dismissal; or
(iv)
the dispute concerns an unfair labour practice; or
(b)
the employee may refer the dispute to the Labour Court for
adjudication if the employee has alleged that the reason for
dismissal is—
(i)
automatically unfair;
(ii)
based on the employer’s operational requirements;
(iii)
the employee’s participation in a strike that does not comply
with the provisions of Chapter IV; or
(iv)
because the employee refused to join, was refused membership of or
was expelled from a trade union party to a closed shop
agreement.’
[7]
At para 73.
[8]
[2015] 3 BLLR 205
(CC); (2015) 36 IJL
363 (CC) at para 32.
[9]
[2012] 10 BLLR
1001
(LAC) at para 13.
[10]
See, for example,
Van
Metzinger and Another v Conservation Corporation t/a CC Africa
(2013) 34 ILJ 1309 (LC).
[11]
(2007) 28 ILJ 1042 (LAC).
[12]
At para 21.
[13]
F&J Electrical CC
v MEWUSA obo E Mashatola and Others
(2015) 36 ILJ 1189 (CC).
[14]
(2008) 29 ILJ 1707 (LAC);
[2008] 6
BLLR 540
(LAC) at para 17.
[15]
(1997) 18 ILJ 380 (LC).
[16]
(2000) 21 IJL 1739 (LAC).