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[2014] ZALCJHB 65
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Pearson and Others v TS Africa Catering Solutions and Another (JS1135/12) [2014] ZALCJHB 65 (28 February 2014)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO J S 1135/12
In
the matter between:
DENNIS
PEARSON & 14 OTHERS
APPLICANTS
and
TSAFRICA
CATERING SOLUTIONS
1
ST
RESPONDENT
SODEXHO
SOUTHERN AFRICA (PTY)
LTD 2
ND
RESPONDENT
Trial:
27 February 2014
Judgment:
28 February 2014
JUDGMENT
VAN
NIEKERK J
[1]
The applicants have filed a statement of claim in terms of Rule 6 in
which they seek a declaratory order to the effect that
the
outsourcing contract by and on behalf of Media 24 to the second
respondent subsequent to ‘cancellation of the same contract’
between Media 24 and the first respondent, is a transfer of business
as a going concern within the meaning of s 197 of the Labour
Relations Act (LRA). They also seek a declaratory order to the effect
that they be transferred to the second respondent, with no
loss of
benefits, and that this order should operate retrospectively from 1
May 2012.
[2]
The statement of claim was drafted and filed by the applicants’
erstwhile attorney of record, who withdrew a week ago.
The terms of
the statement of claim canvass the factual and legal issues that
arise form was is contended to be a transfer of a
business as a going
concern for the purposes f s 197 during the course of May 2012, when
the second respondent appears to have
substituted for the first
respondent as a service provider to Media 24, specifically, to
provide catering services.
]3]
In its response to the statement of claim, the second respondent
avers that the declaratory relief sought by the applicants
is not
competent, and that regardless of the merits, the claim should be
dismissed for this reason. In essence, the second respondent
contends
that the failure by the applicants to refer an unfair dismissal
dispute to this court renders the relief they seek (i.e.
a
declaratory order as to whether s 197 applies) of no consequence.
At the outset of the trial that commenced yesterday,
the parties’
representatives were invited to address the court on this issue.
[4]
The facts relevant to these preliminary issues are briefly the
following. The applicants state that on 13 April 2012, Media
24
advised the first respondent that the second respondent would ‘take
over the catering business as at the beginning of
1
st
May
2012’. When they presented themselves after a handover to the
second respondent they were told that there were no jobs
for them on
the site and they were evicted from Media 24’s premises. It
appears from the pre-trial minute that the majority
of the applicants
were employed by the first respondent on fixed term contracts at
other sites, and that with four exceptions,
they remain so employed.
On 5 May 2012, the applicants referred disputes to the CCMA. They
categorised the disputes as ones concerning
an unfair dismissal, and
indicated that they wished to be reinstatement and/or compensated.
On 22 May 2012, for reasons that
are not apparent, the
applicants referred a dispute to the bargaining council in which they
claimed that they had been unfairly
dismissed by the second
respondent. The dispute was categorised as one concerning an unfair
retrenchment. After conciliation, the
dispute remained unresolved,
and on 2 August 2012, a certificate to this effect was issued by the
council. Again, for reasons that
are not apparent, the matter was
thereafter referred to the CCMA for arbitration. The arbitration was
set down for 26 November
2012. The applicants state that they did not
proceed with the arbitration because they received advice that the
CCMA lacked jurisdiction
to entertain the dispute and that it ought
to be referred to this court for determination.
[5]
On 7 March 2013, the applicant’s erstwhile attorney filed the
statement of case.
[6]
The statement of case makes no mention, at least in express terms, of
any dismissal, let alone an unfair dismissal. The high
water mark is
averments that I have mentioned above regarding events when the
applicants presented themselves at Media 24 after
30 April. All of
the averments in the statement of case address the relief sought,
i.e. a declaratory order.
[7]
It is often forgotten that this court is a creature of statute, its
powers and jurisdiction are defined and conferred by the
LRA and
other labour-related legislation, and it has authority and inherent
powers only in relation to matters under its jurisdiction
(s 151 of
the LRA). Section 157 establishes the jurisdiction of the court, and
provides for exclusive jurisdiction in respect of
matters that either
in terms of the LRA or any other law are required to be determined by
this court. Rule 6 of the rules of this
court regulates matters that
may be referred for determination, and establishes the procedure to
be followed. Rule 7 and 7A apply
to those matters required to be
brought by way of application. In other words, this court does not
operate on the principle applicable
in the High Court, where the
foreseeability of any material dispute of fact largely dictates the
appropriate procedure. In this
court, the LRA, read with the Rules,
is prescriptive. The nature of the dispute between the parties both
confers jurisdiction and
dictates the manner in which the matter is
to proceed, whether way of action or application.
[8]
This court is afforded a range of powers (s 158). Included in these
is the power to make declaratory orders (s 158 (1) (a) (iv)).
But the
court may not exercise its powers if it has no jurisdiction.
[9]
The applicants seek a declaratory order. As I have indicated, the
court is empowered to grant such orders. However, I am not
persuaded
that the court has jurisdiction to grant the order. They face what
appear to me to be two insurmountable obstacles. The
first is the
point made by the second respondent, to the effect that there is no
unfair dismissal dispute before the court. The
applicants do not aver
that they were dismissed by the second respondent (at least not
within the definition of ‘dismissal’
contained in s 186
(1) of the LRA), nor do they contend that any dismissal that may have
been effected by the second respondent
was unfair. Even then, this
would not be sufficient to establish jurisdiction. The court has
jurisdiction to determine disputes
that concern dismissals that are
alleged to have been effected for a reason that is automatically
unfair. Included in the list
of automatically unfair reasons is a
transfer in terms of s 197, or a reason related to a transfer.
[10]
Jurisdiction is to be determined on the pleadings and not the
substantive merits of the case. The pleadings contain the legal
basis
of the claim under which the applicant has chosen to invoke the
court’s competence. (
Chirwa v Transnet Ltd & others
(2008) 29
ILJ
73 (CC);
Gaba v Minister of Safety and
Security & others
(2010) 31
ILJ
296 (CC). A referring
party in a claim such as the present must at least assert the
existence of a dismissal, and facts and sufficient
facts to sustain
the claim that the reason for the dismissal is a transfer in terms of
s 197 or related to the transfer. The applicants
have failed to plead
facts that sustain a cause of action cognizable by this court under
Rule 6.
[11]
More fundamentally, and on the assumption that the applicants’
real dispute is that they were unfairly dismissed by the
second
respondent on account of a transfer in terms of s 197, the applicants
have failed to comply with s 191 (11) of the LRA.
That section
requires that the referral of a dispute to this court for
determination must be made within 90 days after the CCMA
or a
bargaining council has certified that the dispute remains unresolved.
In the present instance, the certificate was issued
on 2 August 2012.
The referral was made on 7 March 2013, almost seven months after the
referral and thus some four months late.
The applicants have not
applied for the condonation of their late referral. When a dispute is
referred late and no condonation
is sought, it is trite that the
court has no jurisdiction to entertain the claim.
[12]
For these reasons, the applicants’ claim stands to be
dismissed.
[13]
In so far as costs are concerned, the court has a broad discretion to
make an order for costs on the basis of requirements
of the law and
fairness. Although the institution of this litigation was misguided,
I suspect that the applicants relied on the
advice of Mr. Samuels,
their previous attorney of record. They were badly advised. The irony
is that had the applicants approached
the court by way of an urgent
application for the declaratory order they now seek, the court would
have entertained the application.
I
make the following order:
1. The
applicants’ referral is dismissed.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the applicants: Adv. S Swartz, instructed by Bagraim Sachs.
For
the second respondent: Adv. C Watt-Pringle, instructed by Shepstone &
Wylie