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[2014] ZALCJHB 26
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Ntlele v Anglo Platinum Limited and Another (JS 399/12) [2014] ZALCJHB 26 (18 February 2014)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JS 399/12
BEN
NTLELE.........................................................................................Applicant
and
ANGLO
PLATINUM
LIMITED...................................................First
Respondent
COLIN
DA
SILVA.................................................................Second
Respondent
Heard:
30 January 2014
Delivered:
18 February 2014
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
The Applicant, who is still employed by the First Respondent, had
referred an alleged unfair discrimination dispute to the Commission
for Conciliation, Mediation and Arbitration. A certificate of
non-resolution was issued on 20 February 2012, thus enabling him
to
launch this application. On 16 May 2012, the Applicant had filed a
statement of claim “
in terms of section 6 and 10 of the
Employment Equity Act read with Rule 50 of the Labour Relations Act”
(Sic).
[2]
According to the Applicant, the nature of his claim is in two parts.
The first part was substantive in nature and concerned
the alleged
failure by the First Respondent to properly consider and/or to
appoint him to the position of Evaluation Day Shift
Leader (EDSL) (a
managerial position). The second part of the dispute was procedural
in nature and involved an alleged flawed procedure
that was followed
by the First Respondent in appointment of the Second Respondent to
the position, and an allegation that the First
Respondent failed to
adhere to and/or abide by the correct policies and procedures and the
framework to allow a procedurally fair
process.
Preliminary
issues raised:
[3]
Subsequent to the First and Second Respondent having filed a response
to the statement of claim, the parties had on 3 September
2013 filed
a signed pre-trial minute, and the matter was set-down for trial on
30 January 2014. On 29 January 2014, a day before
the trial, the
Respondents had filed their written heads of argument and raised a
preliminary point to the effect that the Court
lacked jurisdiction to
entertain the dispute.
[4]
The jurisdiction of the Court was challenged on two fronts. The first
was that the monitoring and enforcement procedures envisaged
in the
Employment Equity Act ought to have been utilised by the Applicant.
It was submitted that the issues raised by the Applicant
in his
pleadings were covered by the provisions of Chapter III of the EEA.
In this regard, it was argued that the Court lacked
jurisdiction due
to the reason that the Applicant did not comply with the provisions
of the Employment Equity Act in that he should
have first used the
compliance mechanisms of Chapter V of that Act. It was further argued
that the facts of the Applicant’s
case were similar to those in
Minister
of Safety and Security v Govender
[1]
where the Court had held
inter
alia
that it would lack jurisdiction to entertain proceedings in respect
of alleged breaches of the obligation to implement affirmative
action
measures (being an obligation under chapter III of the EEA), prior to
exhaustion of the enforcement procedures envisaged
under Chapter V of
that Act. The Respondents had made reference to various paragraphs in
the Applicant’s statement of case,
which it was contended was
replete with references to the affirmative action obligations of the
First Respondent. In this regard,
it was further contended that the
Applicant’s claim was plainly premised on alleged breaches by
the First Respondent of its
obligation to implement affirmative
action measures.
[5]
The second preliminary point raised was to the effect that in
addition to the Applicant’s claim being based on Chapter
III of
the EEA, the Applicant’s claim related to an alleged unfair
conduct by the First Respondent pertaining to promotion.
In
this regard, it was contended that the Applicant had made an
assertion that he ought to have been promoted to the position
instead
of the Second Respondent. To this end, it was argued that unfair
labour practice disputes fell within the exclusive jurisdiction
of
the CCMA, and outside of the jurisdiction of this Court acting as
arbiter of first instance.
[6]
In response, Mr. Lennox on behalf of the Applicant had submitted that
taking into account the nature of the preliminary points
raised, the
Respondents should have raised these issues by way of exception in
terms of the provisions of Rule 11 of the Rules
of this Court, rather
than by way of a jurisdictional objection. To this end, he submitted
that fairness required that the Applicant
be afforded an opportunity
to amend his pleadings.
[7]
In regards to the preliminary points raised, arguments advanced on
behalf of the Applicant were to the effect that his case
was that he
had been discriminated against on account of his race as envisaged in
section 6 of the EEA, and that his primary relief
was to be found in
Chapter II of that Act. Furthermore, the Applicant ought to have been
promoted into the position in question,
and that the failure to
appoint him was both procedurally and substantively unfair. He had
relied in part on the fact that he is
a historically disadvantaged
South African (HDSA) and was eminently suitable for the position, or
if not, the most suitable. It
was argued that his case was based on
discrimination on account of race, and he primarily relied upon
Chapter II of the EEA which
dealt with the prohibition of unfair
discrimination.
[8]
It was further argued that the Applicant had properly referred a
dispute to the CCMA and a certificate of outcome was issued
enabling
him to refer the dispute to this Court. It was conceded that as part
of the factual background which the Applicant had
pleaded and further
elaborated upon in the pre-trial minute, averments were made that
there was non-compliance with the Employment
Equity Plan (EEP). It
was submitted however that the main claim was that the Applicant was
subjected to racial discrimination,
and that this application did not
call for an order directing compliance with the EEP of the First
Respondent. In this regard,
it was argued that the facts of this case
were different from those in
Govender,
which the Respondents
had relied upon in that it was not the primary claim of the Applicant
that the EEP was not complied with.
Evaluation:
[9]
The first issue that needs to be dealt with is whether given the
nature of the points raised, the Respondent should not have
raised
them by way of an exception rather than by way of a jurisdictional
point. Mr. Mosam on behalf of the Respondents had submitted
that the
choice was for the Respondents to exercise, and that they were
entitled to raise these issues in the manner that they
deemed fit at
any time prior to the trial commencing. I am inclined to agree with
Mr. Mosam. There is no provision in either the
Rules for the Conduct
of Proceedings in the Labour Court, or in the Practice Manual that
prescribes whether an issue should be
raised as an exception or as a
point
in limine
. With exceptions, obviously the
intention ultimately is to allow the other party to amend its
pleadings accordingly so that
its case can be met. However, with
points
in limine
, where they are successful, the intention is
to dispose of the matter completely. It is therefore up to a party to
decide how to
raise any particular issue that may affect the
jurisdiction of the Court. Obviously the only considerations are
whether these issues
have been raised properly before the Court,
whether the other party to the dispute was afforded an opportunity to
respond to them,
and ultimately, whether they are sustainable or not.
[10]
The parties were in agreement that if the dispute before this Court
related to Chapter II of the EEA, the Court would have
the necessary
jurisdiction to determine it. Chapter II of the EEA deals with the
prohibition of unfair discrimination. In terms
of section 5, there is
an obligation on employers to eliminate unfair discrimination, and
section 6 prohibits discrimination on
various grounds. More pertinent
to this case is section 10 which deals with disputes concerning that
chapter, and the dispute resolution
path to be followed in instances
where there is a dispute. In this regard, section 10 provides for
disputes to be referred to the
CCMA within six months after the act
or omission that allegedly constitutes unfair discrimination, and
where conciliation fails,
for the dispute to be referred to this
Court for adjudication.
[11]
If the Applicant’s dispute however relates to Chapter III as
the Respondents have contended, the Court would obviously
lack
jurisdiction. Section 13 under Chapter III provides that designated
employers must in order to achieve employment equity,
implement
affirmative measures for people from designated groups in terms of
the Act. Section 20 provides that a designated employer
must prepare
and implement an employment equity plan which will achieve reasonable
progress towards employment equity in that employer’s
workforce.
[12]
Section 34 under Chapter V (Monitoring, Enforcement and Legal
Proceedings) provides for employees or trade union representative
to
bring contraventions of the EEA to the attention of
inter alia
,
a Labour Inspector, the Director-General or the Commission for
Employment Equity. A Labour Inspector having investigated the matter
under section 35 may
inter alia
, issue a compliance order to
the employer under section 37. If the employer fails to comply within
a period specified by the Labour
Inspector, or does not object to
that order, the Director-General may in terms of the provisions of
section 37 (6), apply to this
Court to make the compliance order an
order of Court.
[13]
In support of its contention that the Court lacked jurisdiction by
virtue of the provisions of Chapter III of the EEA, the
Respondents
had also made reference to
Dudley
v City of Cape Town
[2]
wherein it was held that any interested party aggrieved by a
designated employer’s failure to comply with any of its
obligations
under Chapter III must take steps to have the enforcement
procedure provided for in Chapter V invoked, and that the interested
party cannot simply ignore that procedure and institute court
proceedings.
[14]
It is trite that jurisdiction is determined on the basis of
pleadings, and not on the substantive merits of the case
[3]
.
Where
the jurisdiction of the Court is disputed, Van der Westhuizen J in
Gcaba
v Minister of Safety and Security
[4]
stated the following;
“
In
the event of the Court’s jurisdiction being challenged at the
outset (in limine), the applicant’s pleadings are the
determining factor. They contain the legal basis of the claim under
which the applicant has chosen to involve the Court’s
competence….”
[15]
In the light of the above legal principles, the actual nature of the
Applicant’s claim must be gleaned from his pleading.
Mr.
Lennox as already indicated had conceded that as part of the factual
background, and further in the pre-trial minute,
the Applicant had
made averments that there was non-compliance with the Employment
Equity Plan. In his statement of case, the Applicant
had summarised
his case as follows;
He
was never afforded and/or granted the position despite him being part
of the group of persons that are described as historically
disadvantaged South Africans (HDSA), and also despite him being
shortlisted, interviewed and being the most/best suitable available
applicant for the position. The Second Respondent on the other hand
was not interviewed, or if he was interviewed, he was not the
most/best suitable candidate, did not meet the requirements for the
position, and did not possess the required years of experience
and
other requirements. The Applicant alleged that there was favouritism
and the First Respondent had failed to follow due process
and in so
doing, discriminated against him and has suffered as a result. The
First Respondent had also failed to adhere and/or
abide by the proper
procedures in place to ensure that employment equity processes are
promoted, and had failed to act in terms
of its equity plan and/or
any equity plan. According to the Applicant, all of the above issues
fell under the various sections
of the Employment Equity Act (The
EEA).
[16]
It was further common cause that following his non-appointment to the
position in question, the Applicant had lodged a grievance
and
alleged firstly, that he was overlooked for the position, and
secondly, that the First Respondent had failed to comply with
its
Employment Equity Policy and Plan. Amongst other relevant issues the
Applicant had raised in his statement of claim was the
allegation
that he was victimized since exercising his rights in terms of the
Labour Relations Act, and further since the Second
Respondent was
appointed to the position. He had further contended that had he been
considered for the position, it would have
aided the First Respondent
in fulfilling its EEPP quotas and being more representative in its
EEPP plan and outcomes. In the Applicant’s
view, the First
Respondent had a duty to adopt, act and implement an Employment
Equity Plan. These averments, contentions and allegations
were
repeated at length in the parties’ signed pre-trial minute. In
regards to the legal issues that arose from the facts
of his claim,
the Applicant had submitted that the matter had to be decided in
terms of the provisions of sections 6, 10, 11, 13,
15, 20, and 50 the
EEA.
[16]
Having had regard to the Applicant’s pleadings as summarised
above, it is apparent that they were drafted in such a manner
that
they were all-encompassing, and to cover each and every complaint the
Applicant had in respect of his non-appointment.
To this end,
and notwithstanding the manner with which the relief sought is
drafted, the difficulty always remains as to exactly
what it is that
the Court is required to determine amongst the myriad of issues
raised. Moreso, the dilemma for the Respondents
is always the
uncertainty surrounding the case it is required to meet.
[17]
In order to highlight these difficulties, the Applicant appears to be
claiming unfairness in relation to the failure to promote
or appoint
him. Secondly, he is aggrieved at the fact that the First Respondent
failed to comply with its EEP policies and plans,
and acknowledge the
fact that he was from a historically disadvantaged group. Thirdly, he
also claimed victimization for exercising
his rights in terms of the
Labour Relations Act. Fifthly, he had contended that his claim should
be decided in accordance with
several provisions of the EEA, which
provisions vacillates between the provisions of Chapter II and
those of Chapter III
of the EEA.
[18]
On a full consideration of the Applicant’s pleading, it cannot
in my view be said that any reference to the First Respondent’s
alleged non-compliance with its Employment Equity Plan or policies in
the pleadings was merely made in passing or purely by way
of
background. Had such reference to non-compliance with employment
equity plans or policies been made once in the pleadings,
one
would have been inclined to agree that not much significance should
be attached to it. However, in this case, such reference
was made
ad
nauseam.
Other than the repeated references to this allegation in
the pleadings, the Applicant had repeated the same, and almost
verbatim,
in the parties’ pre-trial minute. In respect of the
relief that he sought, at paragraph 73.6 of the signed pre-trial
minute,
the Applicant sought a declaratory that the First Respondent
had failed to comply with the EEA and/or its EEPP. Furthermore, at
paragraph 73.8 of the pre-trial minute, the Applicant sought an order
to direct the First Applicant to comply with the EEA, in
particular
Chapter III of the EEA. Viewed as a whole, it cannot be said that the
Applicant’s case falls squarely within the
ambit of Chapter II
of the EEA. In the light of these repeated references to the First
Respondent’ alleged non-compliance
with its EEPP, the Applicant
cannot escape the clutches of the provisions of Chapter III of the
EEA, and the dispute resolution
path that should have been followed
is that as prescribed in Chapter V of the EEA.
[19]
It does not appear that the Applicant had premised his case on
anything other than the failure to appoint him or the alleged
failure
by the First Respondent to comply with its employment equity plan or
policy. The issue of race discrimination is sparsely
referred to in
the pleadings. At paragraph 10 of the pleadings, he contended that by
virtue of the First Respondent’s failure
to follow due process
he was discriminated against. At paragraph 37, he repeated the
allegation that he was not appointed to the
position and gives
possible reasons. No reference however is made to race
discrimination. Only on three occasions does he make
any reference to
race discrimination in the 13 submissions he made. In regards to the
relief that he seeks, the fact that he had
made reference to, or
sought the failure of the First Respondent to appoint him to the
position to be declared as discriminatory
does not in my view
necessarily make his case one that falls within the purview of
Chapter II of the EEA. The type of relief he
seeks has to be looked
at in terms of what he had pleaded. In this case, his pleadings fall
squarely within the purview of Chapter
III.
[20]
In the light of the conclusions reached in respect of the first
jurisdictional point raised, it would be academic to deal with
the
second point
in limine
which was raised by the Respondents.
However, for the sake of completeness, it is important to reiterate
that every employee has
a right not to be subjected to unfair
labour practices as envisaged in section 185 (b) of the LRA. Section
186 (2) defines
an unfair labour practice as any conduct or omission
that arises between an employer and employee involving
inter alia
,
unfair conduct relating to promotion. When one has regards to the
nature of the Applicant’s pleadings, it is clear that
he is
aggrieved by the fact that the Second Respondent was appointed rather
than him. Had he been appointed to the position in
question, this
would have led to a promotion as that appointment would have been at
a higher level.
[21]
The Applicant had advanced numerous reasons as to the reason he
should have been appointed including the fact that he was part
of
HDSA, was better qualified, most suitable, most experienced, and had
met all or most of the requirements for the position. In
regards to
relief, the Applicant sought
inter alia
, an order declaring
the failure to appoint him to the position as procedurally and
substantively unfair; declaring the failure
by the First Respondent
to “
properly consider him for the position, at least in
terms of his experience, adequately to be unfair and/or
discriminatory”
; directing the First Respondent to appoint
him in the position; directing the First respondent to comply with
the EEA, in particular,
Chapter III of the EEA; and directing the
First Respondent to compensate him in the amount of R500 000.00. On
the whole, in view
of the conclusions made above in respect of the
allegations pertaining to discrimination, it should also be concluded
that given
the nature of the complaints raised in regards to his
non-appointment, the relief that the Applicant seeks, and the general
manner
and approach taken in formulating the claim, it should be
concluded that his case, other than the conclusions already made in
regards
to the provisions of Chapter III of the EEA above, also bear
the hallmarks of an alleged unfair labour practice dispute as
contemplated
in section 186 of the LRA. To this end, the dispute
should have remained at the CCMA, having been properly referred to
that forum.
Costs:
[22]
It is trite that a cost order is determined in accordance with the
considerations of law and fairness. The Respondents had
sought a cost
on account of the fact that the application before the Court was
ill-considered. It was however argued on behalf
of the Applicant that
there was an on-going employment relationship between the parties,
and that the consequences of such an order
would be dire for him.
Whilst these factors are taken into account, it should be borne in
mind that fairness applies to both parties.
In the light of the
nature of the claim, and the pleadings, the Applicant had clearly
caused the Respondents irritation. The Respondents
had to sift
through those pleadings in order to make sense of what the
Applicant’s case was all about. Throughout, from the
time that
the application was launched and up to a point where the parties had
completed the pre-trial minute, the Applicant had
persisted with his
claim in the manner that he had done. In doing so, it does not appear
that his on-going relationship with the
Respondents or a possible
cost order against him was even a consideration. To this end, it
would be unfair for the First Respondent
in particular, to be
burdened with the costs of having to defend a claim that was
ill-advised and ill-considered. In these circumstances,
the following
order is made;
Order:
i.
The
preliminary points raised by the Respondents are upheld.
ii.
The
Court lacks the requisite jurisdiction to determine the Applicant’s
claim.
iii.
The
Applicant is ordered to pay the First Respondent’s costs of
suit.
_________________________
Tlhotlhalemaje, AJ
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the Applicant: Adv. MA Lennox
Instructed
by: Goldberg Attorneys
For
the Respondent: Adv. A Mosam
Instructed
by: Edward Nathan Sonnenbergs
[1]
[2010] 1 BLLR 55
(LC) at para 48
[2]
[2008] 12 BLLR 1155
(LAC) at para 46
[3]
Chirwa v Transnet Ltd & others [2008] 2 BLLR
97 (CC)
[4]
2010 (1) SA 238
(CC) at 263 D-G