About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Port Elizabeth Labour Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Port Elizabeth Labour Court, Port Elizabeth
>>
2013
>>
[2013] ZALCPE 2
|
|
Makinana and Others v Harbron t/a Harbron Quarries and Groenendal Boerdery (P285/07) [2013] ZALCPE 2; [2013] 6 BLLR 591 (LC); (2013) 34 ILJ 2618 (LC) (14 February 2013)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF SOUTH AFRICA, PORT
ELIZABETH
JUDGMENT
Reportable
Case
no: P285/07
In the matter between:-
THEMBASILE
JUSTICE MAKINANA &
15
OTHERS
.............................................................................................................
Applicants
and
ALBERT
MULLER HARBRON t/a HARBRON QUARRIES
AND
GROENENDAL BOERDERY
......................................................................
Respondent
Heard
: 20 August 2012
Delivered
: 14 February2013
Summary: application to prevent respondent from
denying he is employer
–
dispute as
to identity of employer – commissioner ruling respondent is
employer
–
t ruling binding on
respondent for purposes of trial. Unless ruling set aside
JUDGMENT
___________________________________________________________________
GUSH J
[1] This is an interlocutory application brought by the applicants
for the following relief:
[1] Declaring that the
arbitration award, issued under the auspices of the Commission for
Conciliation Mediation and Arbitration
under case number ECPE 2971 –
05 where it was found that the respondent was the true and only
employer of the applicants,
is binding for the purposes of the
present trial proceedings brought under the above case number.
[2] The applicants had referred a dispute to the CCMA following their
dismissal. The applicants had cited Harbron Quarries as the
employer.
It is apparent from the pleadings, that on 12 July 2006 the dispute
was enrolled for an
in limine
hearing before a Commissioner,
Ngcola Hempe. It appears from the
in limine
ruling by Hempe
that the purpose of the hearing was, in accordance with a prior
ruling issued by a Commissioner Faizal Fataar, to
enquire into and
determine who the applicants ‘real employer’ was.
[3] The pre-trial minute filed by the parties in the main application
records that it is common cause that after the applicants
had filed a
dispute the respondent had raised a point
in limine
before the
CCMA in averring that a Mr Andre Gerber was the applicant's employer
and not the respondent. In order to deal with this
point
in limine
Mr Andre Gerber was joined as a respondent with Harbron Quarries.
[4] At the
in limine
hearing, the applicants were represented
by an official from their union and the then respondents, both
Harbron Quarries and Gerber
were represented by a Mr Johann de Jager
from COFESA, an employers’ organisation.
[5] Hempe, the arbitrator, in his ruling, considered the submissions
made by both parties, analysed their submissions and issued
the
following ruling:
1. Albert Muller Habron of
Habron Quarries is the owner, the employer and the correct respondent
in this matter.
2. Future communications and
correspondence must be sent to an addressed to Albert Muller Habron.
3. In view of the expiry of the
30 days since the application for conciliation was made a certificate
on non-resolution is simultaneously
issued with this ruling.(sic)
1
[6] On 19 October 2006 the matter was enrolled for arbitration of the
dispute before an arbitrator appointed by the CCMA, this
time Ms
Julia Cameron. The applicants were again represented by their union
official and the respondents, both Harbron Quarries
and Gerber, were
represented by an attorney, a Mr S Laubscher.
[7] The jurisdictional ruling records that at the outset of the
arbitration the applicants’ representative confirmed that
the
basis of the dispute arose from an allegation that the applicants had
been dismissed because they had joined a trade union.
Ms Cameron
advised the parties that as the dismissal fell under the definition
of an automatically unfair dismissal it accordingly
should be
referred to the Labour court as the CCMA lacked jurisdiction to
arbitrate the dispute. Ms Cameron issued a ruling that
the CCMA did
not have jurisdiction to arbitrate the dispute.
[8] Pursuant to the ruling issued by Ms Cameron, the applicants filed
a statement of case with this court in which they aver they
had been
unfairly dismissed by respondent, who was cited as Albert Muller
Harbron t/a Harbron Quarries and Groenendal Boerdery.
[9] There is nothing in the pleadings to suggest that the respondents
did anything to challenge the
in limine
ruling by Commissioner
Hempe that Albert Muller Harbron, the respondent, was the applicants’
employer after the ruling or
when the dispute was enrolled to be
arbitrated.
[10] In the applicants’ statement of claim filed with this
court, the applicants specifically aver that they were employees
of
Albert Muller Harbron t/a Harbron Quarries and Groenendal Boerdery
and that he was their employer.
2
[11] In his response to the applicants’ statement of case, the
respondent admitted that he traded as Harbron Quarries but
denied
that he traded as Groenendal Boerdery. Despite the ruling by an
arbitrator Hempe, the respondent denied that he was the
‘employer
of the applicants’.
3
[12] The pre-trial minute filed by the parties simply records that it
is common cause that the CCMA had issued a ruling by arbitrator
Hempe
that ‘Albert Muller Habron of Habron Quarries is the owner, the
employer and the correct respondent in this matter’.
The
consequence of this ruling is not dealt with and it is not mentioned
again.
[13] Likewise, conspicuous by its absence is any reference or
challenge to Commissioner Hempe's
in limine
ruling by the
respondent in the pleadings. It is abundantly clear that the
respondent has not at any stage challenged or sought
to review the
ruling issued by the Commissioner Hempe. In particular the respondent
simply refrained from mentioning the
in limine
ruling in its
pleadings nor does he attempt in any way whatsoever to show that the
ruling is incorrect. In fact it appears as if
the respondent ignores
the
in limine
ruling in the hope that it might go away.
[14] The pre-trial minute was filed on 20 September 2009 and on 6 May
2010 the applicants filed this application for an order that
the
respondent is bound by the ruling of commissioner Hempe for the
purposes of the trial.
[15] The respondent opposed the applicant's interlocutory application
and
in limine
raised an issue concerning the founding
affidavit in the application alleging that it is hearsay and that
accordingly the application
should be dismissed.
[16] The founding affidavit is deposed to by the applicants' attorney
who records that he is duly authorised to depose to the affidavit
and
to bring the application on behalf of the applicants (which is not
challenged by the respondent). The deponent in his affidavit
records
the sequence of events which led to the
in limine
ruling by a
Commissioner Hempe and refers to that portion of the respondent's
plea where the respondent denies that he was the
employer of the
applicants.
[17] The respondents’ objection is based on the averment that
the deponent to the affidavit cannot depose to these facts
as he was
not involved in any of the matters before the CCMA and therefore his
affidavit is hearsay. The respondent's point
in limine reads
‘it is submitted that the attorney for the applicants cannot
dispose to this affidavit as he was not involved in any the
matters
in the CCMA and accordingly should the application be struck and is
it based on hearsay’. (sic)
[18] This objection to the founding affidavit ignores the fact that
the issue in question is the effect of the rulings made by
the CCMA's
commissioners in this matter. It is not necessary for the deponent to
have been present at the CCMA in order to place
before the court the
relevant rulings. I therefore dismiss the respondent’s point
in
limine
.
[19] It is the applicants’ case that the Commissioner's
in
limine
ruling to the effect that the respondent Albert Muller
Habron was the employer and the correct respondent renders the issue
of
the identity of the employer
res judicata
and is
accordingly binding on the respondent in the trial.
[20] The respondent in turn disputes that the issue of the identity
of the applicants’ employer is
res judicata
and argues
that the relevant principle to be applied is ‘issue estoppel’
and that these principles properly applied
should result in the
applicants’ application being dismissed.
[21] I am of the view that neither the applicant’s argument on
res judicata nor the respondent’s “issue estoppel”
apply and therefor in the specific circumstances of this matter it is
not necessary, for the reasons set out below, to consider
whether the
in limine
ruling renders the question of the identity of the
employer
res judicata
or whether the applicable principle is
‘issue estoppel’. There has been no challenge to the
in
limine
ruling by applying to review it or even challenging the
ruling in the pleadings and in addition there is absolutely nothing
on
record to suggest that the ruling is wrong, apart from the bald
averment in the respondent’s heads of argument that “it
is an undisputable fact on the papers that the ruling was in fact
wrong ...” .
[22] As the ruling has neither been challenged nor set aside, the
crisp issue the court must decide is this: in light of the ruling
is
the respondent entitled to deny that he is the applicants’
employer?
[23] The applicants, having been dismissed, referred a dispute to the
CCMA alleging in the referral that the respondent was their
employer.
The respondent disputed this and the matter was enrolled to determine
who the employer was. After hearing the parties,
the Commissioner
appointed to determine the matter issued a ruling that the respondent
was the employer.
[24] The CCMA clearly fulfilled its function as required by sections
133 and 135 of the Labour Relations Act.
4
The CCMA duly appointed a Commissioner to determine the issue of the
identity of the employer and to conciliate the dispute. The
Commissioner ruled that the respondent was the employer and the
correct respondent and issued the requisite certificate that the
dispute had not been resolved. The respondent appears to suggest that
the CCMA’s decision on the identity of the respondent
was not a
decision taken in the conciliation process but was an “in
limine proceeding”. The respondent further challenges
the
issuing of the certificate of non resolution given the time that
elapsed before it was issued.
[25] The respondent not only participated in the hearing to determine
the identity of the employer, but initiated the enquiry by
challenging the averment in the referral that he was the employer. As
is set out below conciliation cannot logically be conducted
until the
commissioner is satisfied that the correct employer is a party to the
dispute referred. Having determined this issue
the commissioner
correctly issued the requisite certificate. It is also so that the
respondent attended the scheduled CCMA arbitration
when the matter
was due to be arbitrated and the arbitrating Commissioner ruled that
the CCMA did not have jurisdiction and that
the matter was to be
referred to the Labour court. The respondent has simply ignored the
in limine
ruling and has proceeded as if it did not exist.
[26] Sections 133 and 135 oblige the CCMA to appoint a Commissioner
to attempt to resolve the dispute through conciliation of any
dispute
referred to it and in the event that conciliation fails, to issue a
certificate to that effect.
[27] Disputes about unfair dismissals are specifically dealt with in
section 191 of the Labour Relations Act. The section requires
an
employee who disputes the fairness of a dismissal to refer such
dispute to the CCMA and that the CCMA ‘must attempt to
resolve
the dispute through conciliation’
5
.
If the dispute remains unresolved and the Commissioner alleges that
the reason for the dismissal is automatically unfair, the
dispute may
be referred to the Labour Court.
[28] It is a statutory requirement therefore that in order for an
alleged automatically unfair dismissal dispute to be adjudicated,
it
must have been conciliated and a certificate issued that the dispute
remains unresolved.
[29] It is clear that at the commencement of the conciliation process
a Commissioner is obliged to determine for the purposes of
conciliating the dispute, whether the respondent employer before him
or her is the correct employer of the employee or employees.
[30] In circumstances where a dispute regarding an unfair dismissal
is referred to the CCMA and the respondent in the referral
challenges
the averment that it is the employer, it is logically necessary for
the commissioner appointed to conciliate the dispute,
to proceed to
determine who the correct employer is in order to comply with the
statutory obligation to conciliate the dispute.
[31] Having established or ruled on the identity of the employer, the
CCMA Commissioner must then conciliate the dispute and issue
a
certificate of non- resolution in order for the dispute to be
adjudicated. This is precisely what transpired in this matter.
[32] The respondent challenged the applicants’ averment that he
was the employer. The CCMA accordingly appointed Commissioner
Hempe
to conduct a hearing in order to determine this issue, which he did.
[33] The ruling is a jurisdictional fact upon which the applicants
have brought their application. As such it remains a jurisdictional
fact until it is set aside. In the absence of any attempt by the
respondent to set aside the
in limine
ruling, they are bound
by it. Section 158(1)(g) of the Labour Relations Act specifically
provides that the Labour Court has the
power to review such a ruling.
The respondents however have not elected to challenge the ruling. It
would make a nonsense of the
dispute resolution process if a
determination by a commissioner as to the identity of the employer
(in particular in the circumstances
of this matter), which is
necessary to establish the jurisdictional facts upon which an unfair
dismissal may be adjudicated are
simply ignored. If the respondent is
not the employer then no dispute can exist between the applicant’s
and the respondent
and there would be nothing to adjudicate.
[34] In the circumstances I am satisfied, in the absence of the
ruling having been set aside by this court, that the respondents
are
bound by this ruling for the purposes of the trial for so long as the
determination that the respondent is the employer remains
in effect.
There is no reason why the costs should not follow the result.
[35] I therefore grant the following order:
The
in limine
ruling issued under the auspices of the
Commission for Conciliation Mediation and Arbitration under case
number P2971-05 that
the respondent ‘is the employer and
correct respondent in this matter’, unless reviewed and set
aside, is binding
on the respondent for the purposes of the trial;
The respondent is ordered to pay the applicants’ costs.
_______________________
D H Gush
Judge
APPEARANCES
APPLICANT: Adv M Euijen
Instructed by Fabian Pretorius Attorneys
RESPONDENT: M Niehaus
Instructed by Minnaar Niehaus Attorneys
1
In
limine
ruling pleadings page 12
2
Statement
of claim page 5 paragraphs 19 and 20
3
Response
to applicant statement of case page 31 paragraphs 3 and 4
4
Act
66 of 1995
5
Section
191(4)