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[2011] ZALCJHB 76
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Masango v Liberty Group Ltd (JS576/2010) [2011] ZALCJHB 76; [2012] 3 BLLR 303 (LC); (2012) 33 ILJ 414 (LC) (31 August 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: JS576/2010
In the matter between:
MARGARET MASANGO
…......................................................................................
Applicant
and
LIBERTY GROUP LIMITED
….............................................................................
Respondent
JUDGMENT
FRANCIS J
Introduction
1. The applicant brought an unfair discrimination dispute against the
respondent for compensation in terms of section 60 of the
Employment
Equity Act 55 of 1998 (the EEA). She alleges that she was sexually
harassed by her regional manager and that although
she reported this
to the respondent, it did nothing.
2. The application was opposed by the respondent. It raised two
points
in limine
. The first is that the dispute was referred
to this Court for adjudication after the 90-day period referred to in
section 191(11)(a)
of the Labour Relations Act 66 of 1995 (the LRA)
had expired, without applying for condonation. The second point
in
limine
is that the dispute should have been referred to this
Court by way of action proceedings as opposed to motion proceedings
and that
there are material disputes of fact that cannot be resolved
without the leading of oral evidence.
3. The matter was argued before me on 24 August 2011 when judgment
was reserved until 25 August 2011. However during the afternoon
of
24 August 2011 both parties were notified that the Court wanted them
to avail themselves for further arguments. They agreed
to do so. The
issue that the Court wanted the parties to address it on was whether
the provisions of section 191 of the LRA are
applicable in an unfair
discrimination dispute.
The background facts
4. The applicant was employed by the respondent and had resigned
after she had accused a regional manager of having sexually
harassed
her. She referred an unfair discrimination dispute to the Commission
for Conciliation, Mediation and Arbitration (the
CCMA) on 26
November 2009. On 22 December 2009 the CCMA issued a certificate of
outcome stating that the matter remained unresolved
and that it
could be referred to the Labour Court. The applicant stated that the
CCMA did not notify her attorney that the matter
had been set down
for conciliation on 22 December 2009. It is unclear from the papers
whether the respondent appeared at the
conciliation meeting. The
applicant upon making enquiries about the matter at the CCMA was
informed about the certificate of
outcome. In January 2010, the
applicant’s attorney made enquiries with the CCMA about the
conciliation proceedings and
was informed that a certificate of
outcome was issued on 22 December 2009. The applicant in January
2010 referred a dispute to
the CCMA for arbitration. The matter was
set down for a hearing on 20 May 2010 when a commissioner ruled that
the CCMA lacked
jurisdiction to entertain the dispute referred to it
in terms of chapter II of the EEA which was an unfair discrimination
dispute.
5. The applicant referred the dispute to this Court on 18 June 2010
by way of motion proceedings. The application was opposed
by the
respondent who raised two points
in limine
. The first point
in limine
is as follows:
“
4.1 The conciliation herein took place
on 22 December 2009. I refer the Court to the certificate of outcome
attached to the founding
affidavit as “CES1".
4.2 In terms of the Employment Equity section 10(7), read with
the Labour Relations Act 66 of 1995 (as amended) (hereinafter the
‘LRA”) section 191(11), the Applicant was obliged to
refer the present dispute to the Labour Court for adjudication
within 90 (ninety) days of the said certificate of outcome, that is
by 22 March 2010.
4.3 Given that the present application has been served and filed
on the Respondent and the Court on 18 June 2010 the referral to
adjudication is late by some 87 days.
4.4 The application moreover is not accompanied by an application
for condonation as contemplated by section 191(11)(b) of the LRA
or
at all.
4.5 In the premises as the referral of the present matter for
adjudication is outside the correct statutory timeframe, it is
submitted
that this application is fatally defective and that the
application as such falls to be dismissed with costs on a scale as
between
attorney and client.”
6. The second point
in limine
is as follows:
“
I now turn to deal with the merits of
the dispute. It is noted that the Applicant is claiming compensation
from the Respondent
on the basis of alleged unfair discrimination
and that the Applicant requires the Court to determine this dispute
on notice of
motion and by way of an affidavit evidence. As will be
seen below there are clear and serious disputes of fact which arise
on
papers and which are incapable of resolution of papers. These
disputes are real and should have been anticipated by the Applicant
in advance of lodging this application. It is submitted that for
this reason alone, the application falls to be dismissed with
costs
on a scale as between attorney and client.”
7. The applicant pleaded in her replying affidavit that the
conciliation meeting took place on 22 December 2009 but she was not
aware of the conciliation since her attorney did not receive
notification from the CCMA about the hearing. It was only in January
2010 when her attorney enquired at the CCMA about the allocation of
the date that they were informed by the CCMA that the matter
was
heard on 22 December 2009. After her attorneys were made aware of
this, they referred the matter to the CCMA and the matter
was set
down for a hearing on 20 May 2010. The commissioner made a ruling
that the CCMA lacked jurisdiction to hear the dispute.
The
application to this Court was served and filed on 18 June 2010 well
within the 90 days as stipulated in section 191(11) of
the LRA. The
referral of a dispute in terms of 191(5)(b) of the LRA to this Court
for adjudication must be made within 90 days
after the Council or
Commission has certified that the dispute remained unresolved. The
applicant had referred the matter to
the Commission for arbitration.
It was heard on 20 May 2010. She had attempted to settle the dispute
before she could refer it
to this Court for adjudication. It was
contended that this application was made within the required time
frame and that she had
been pro active to settle the dispute with
the respondent according to the provisions of the LRA.
Analysis of the facts and arguments raised
8. The respondent contended in paragraph 4.2 of the point
in
limine
that in terms of section 10(7) of the EEA read with
section 191(11) of the LRA, the applicant was obliged to refer the
present
dispute to this Court for adjudication within 90 days of the
said certificate. Both parties proceeded on the basis that the
provisions
of section 191(11) of the LRA were applicable to the
applicant’s dispute. The applicant’s case was that the
90-day
period started running from the date when the commissioner
had issued the ruling on 20 May 2010 and that the application was
made within 90 days from that date. The respondent’s case was
that the 90-day period started running from 22 December 2009
which
was when the certificate of outcome was issued.
9. It is common cause that the applicant referred an unfair
discrimination dispute to the CCMA and that on 22 December 2009 the
conciliating commissioner issued a certificate outcome stating that
the dispute remained unresolved. Since this is a claim for
compensation in terms of the EEA, the applicant had to comply with
the provisions of section 10 of the EEA. The section reads
as
follows:
“
10. Disputes concerning this Chapter
(1) In this section, the word ‘dispute’ 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 VIII of the
Labour Relations Act.
(2
) Any party to a dispute concerning this Chapter may refer the
dispute in writing to the CCMA within six months after the act or
omission that allegedly constitutes unfair discrimination.
(3) The CCMA may at any time permit a party that show good cause
to refer a dispute after the relevant time limit set out in
subsection
(2).
(4). The party that refers a dispute must satisfy the CCMA that -
(a) a copy of the referral has been served on every other party
to the dispute; and
(b) the referring party has made a reasonable attempt to resolve
the dispute.
(5). The CCMA must attempt to resolve the dispute through
conciliation.
(6). If the dispute remains unresolved after conciliation -
(a) any party to the dispute may refer it to the Labour Court for
adjudication; or
(b) all the parties to the dispute may consent to arbitration of
the dispute.
(7). The relevant provisions of
Parts C
and D of Chapter VII of
the
Labour Relations Act, with
the changes required by context,
apply in respect of a dispute in terms of this Chapter.”
10. The LRA is divided into nine chapters. Some chapters are divided
into different parts. Disputes other than disputes about
unfair
dismissals and unfair labour practices are dealt in some of the
chapters of the LRA and not in chapter VIII of the LRA.
Chapter VIII
deals with unfair dismissals and unfair labour practice disputes. It
is headed “Unfair Dismissal and Unfair
Labour Practice”.
Sections 185
to
197B
falls under chapter VIII. Chapter VIII is not
divided into any parts unlike chapter VII of the LRA. Chapter VII is
headed “Dispute
Resolution”. It starts from
sections 111
to
184
of the LRA and has parts A to F. Chapter VIII does not deal
with unfair discrimination disputes and these must be dealt with in
terms of chapter II of the EEA read with
parts C
and D of chapter
VII of the LRA.
11.
Section 10(1)
of the EEA states that the word ‘dispute’
in 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 VIII of the LRA.
Section 10(7)
of the EEA states specifically that the relevant
provisions of
Parts C
and D of chapter VII of the LRA with the
changes required by context apply in respect of a dispute in terms
of chapter II of
the EEA. Chapter II of the EEA deal with unfair
discrimination disputes and excludes unfair dismissal disputes.
12. Since the applicant’s claim is founded in the EEA and is
not a claim for an unfair dismissal, the provisions of
section 191
of the LRA are not applicable. I have pointed out earlier that
section 191
falls under chapter VIII of the LRA and deals with
disputes about unfair labour dismissals and unfair labour practices.
The applicant’s
claim for unfair discrimination may be
referred to this Court for adjudication in terms of
section 10(6)(a)
of the EEA once the dispute remains unresolved after conciliation.
There is no time limit stated in
section 10
(6)(a) of the EEA within
which an unfair discrimination dispute should be referred to this
Court for adjudication.
13. What remains to be determined is whether there are any time
limits set out in
parts C
and D of chapter VII of the LRA in
relation to an unfair discrimination dispute. Chapter VII of the LRA
deals with dispute resolutions.
Part C
which covers
sections 133
to
150
deals with resolution of disputes under the auspices of the
Commission.
Part 5
deals with the Labour Court and is covered by
sections 151
to
166
. The relevant sections that are applicable are
sections 133
and
135
of the LRA.
14.
Section 133
of the LRA deals with resolution of disputes under
the auspices of the Commission. It provides as follows:
“
(1) The Commission must appoint a
commissioner to attempt to resolve through conciliation -
(a) any dispute referred to it in terms of
section 134
; and
(b) any other dispute that has been referred to it in terms of
this Act
(2) If a dispute remains unresolved after conciliation, the
Commission must arbitrate the dispute if -
(a) this Act requires the dispute to be arbitrated and any party
to the dispute has requested that the dispute be resolved through
arbitration; or
(b) all the parties to the dispute in respect of which the Labour
Court has jurisdiction consent in writing to arbitration under
the
auspices of the Commission.”
15. Section 135 of the LRA deals with resolution of disputes through
conciliation and provides as follows:
“
(1) When a dispute has been referred to
the Commission, the Commission must appoint a commissioner to
attempt to resolve it through
conciliation.
(2) The appointed commissioner must attempt to resolve the
dispute through conciliation within 30 days of the date the
Commission
received the referral. However the parties may agree to
extend the 30-day period.
(3) The commissioner must determine a process to attempt to
resolve the dispute, which may include -
(a) mediating the dispute;
(b) conducting a fact-finding exercise; and
(c) making a recommendation to the parties, which may be in the
form of an advisory arbitration award.
(3A) ...........
(4) ............
(5) When conciliation
has failed, or at the end of the
30-day period or any further period agreed between the parties
(a) the commissioner must issue a certificate stating whether or
not the dispute has been resolved;
(b) the Commission must serve a copy of that certificate on each
party to the dispute or the person who represented a party in the
conciliation proceedings; and
(c) the commissioner must file the original of that certificate
with the Commission.
(6) .........”.
16. It is clear that parts’ C and D of chapter VII of the LRA
do not deal with a referral of an unfair discrimination dispute
to
this Court for adjudication.
17. To summarise. An unfair discrimination dispute may be referred
to the CCMA for conciliation within six months from the date
when
the act or omission was alleged to have arisen. The CCMA may condone
a late referral of the dispute for conciliation. Once
the dispute
has been referred to the CCMA for conciliation, the CCMA must
attempt to resolve the dispute through conciliation.
If the dispute
remains unresolved after conciliation, the dispute may be referred
to this Court for adjudication and/or to the
CCMA for arbitration if
both parties have consented to do so. This is so in terms of section
10(7) of the EEA. There is no time
limit within which such a dispute
should be referred to this Court for adjudication. It should be made
within a reasonable period.
Section 191 of the LRA does not apply to
an unfair discrimination dispute.
18. It is not clear from the provisions of section 10 of the EEA
whether this Court can condone a referral that is not made within
a
reasonable period. It is for purposes of this judgment not necessary
to deal with this. It is also not necessary to deal with
what the
consequences would be if a commissioner does not attempt to
conciliate the dispute in terms of section 10(5) of the
EEA. It is
also not clear what a commissioner should do where both parties have
failed to attend the conciliation meeting. A
commissioner is in
terms of section 135(5)(b) required to serve a copy of the
certificate on each party to the dispute or on
their
representatives. It is not necessary to deal with what the
consequences of the commissioner’s failure to do so would
be.
19. The respondent’s point
in limine
stands to be
dismissed since it was raised on the basis that the referral should
have been made within 90 days from the date when
conciliation had
failed in terms of section 191(11)(a) of the LRA. Section 191(11)(a)
of the LRA is not applicable. There is
no time limit either in the
applicable sections of the LRA or the EEA within which an unfair
discrimination dispute should be
referred to this Court for
adjudication. The dispute should be referred to this Court within a
reasonable period. Even if it
could be inferred from the point
in
limine
that it was contended that the dispute was not brought
within a reasonable period, which is not what was pleaded, the
dispute
was clearly brought to this Court within a reasonable
period. What is reasonable would depend on the facts of each case.
There
was therefore no need for the applicant to apply for
condonation.
20. This brings me to the second point
in limine
which is
whether the applicant should have anticipated when it proceeded by
way of motion proceedings that a material dispute
of fact would have
arisen. The applicant for reasons best known to her did not deal
with this issue in her replying affidavit.
21. The applicant should have anticipated when it brought the
application by way of motion proceedings that material disputes
of
facts would have arisen. She should have anticipated that the
regional manager would have denied the sexual harassment and
that
the respondent would have denied that it took no immediate steps to
have dealt with the matter when it was brought to its
attention.
22. Despite all of the aforegoing I do not believe that this Court
should dismiss the application on the basis that the applicant
should have anticipated that there would be material dispute of
facts. The Court should use its discretion and use the provisions
of
rule 7(7) of the Labour Court rules that provides as follows:
“
(7) The court must deal with an
application in any manner it deems fit, which may include -
(a) an order to hold a pre-trial conference;
(b) referring a dispute for the hearing of oral evidence; and
(c) an order as to costs”.
23. Since both parties have been partly successful I do not believe
that this is a matter where costs should follow the result.
An
appropriate order would be that each party is to pay its own costs.
24. In the circumstances I make the following order:
24.1 The first point
in limine
is dismissed.
24.2 The second point
in limine
is partly up held.
24.3 The matter is referred for trial and the parties are to convene
a pre-trial conference within ten days of date of this order.
24.4 Each party is to pay its own costs.
FRANCIS J
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
FOR THE APPLICANT :J H DE LA REY INSTRUCTED TC HITGE INC
FOR RESPONDENT :P BUIRSKY INSTRUCTED BY HLATSHWAYO DU PLESSIS VAN
DER MERWE INC
DATE OF HEARING : 24 AND 29 AUGUST 2011
DATE OF JUDGMENT : 31 AUGUST 2011