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[2014] ZALCJHB 92
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Moir and Others v Autopax Passenger Services (Pty) Ltd (JS797/10) [2014] ZALCJHB 92; (2014) 35 ILJ 3199 (LC) (25 March 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR OF SOUTH AFRICA COURT, JOHANNESBURG
JUDGMENT
Reportable
Case No:JS 797/10
In the matter between
:
STEVEN MOIR & 12
OTHERS
Applicant
and
AUTOPAX PASSENGER
SERVICES (PTY) LTD
t/a TRANSLUX AND
CITY-TO-CITY
Respondent
Heard: 25 November
2013
Delivered: 25 March
2014
Summary: Statement of
case –unfair dismissal. Points in limine – Court lacks
jurisdiction- as dispute concerns interpretation
and application of a
collective agreement. Collective agreement concluded prior to the
dismissal of the employees. The life span
of the collective agreement
extend beyond the dismissal of the employees.
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
The
applicants in this matter claim that they were unfairly dismissed by
the respondent and it is for that reason they have filed
a statement
of case in terms of which they are seeking for reinstatement.
[2]
The
respondent has raised two points
in
limine
all
of which are related to the jurisdiction of this court to entertain
the dispute. The first point relates to the contention that
the issue
in disputes concerns the interpretation and application of the
agreement which the parties concluded in resolving the
dismissal
dispute of 122 employees who had prior to the dismissal of the
applicants participated in an unprotected industrial action.
The 122
employees are , hereinafter referred to as “the first group.”
[3]
It
is common cause that the first group participated in an unprotected
strike action during January 2010 and were for that reason
charged
witth misconduct which resulted in their dismissal. In instituting
disciplinary proceedings the applicant divided the employees
into two
groups one group consisting of 105 employees and the second group 17
employees. The first group of employees was dismissed
following the
disciplinary enquiry conducted by a third party.
[4]
Thereafter,
the respondent and SATAWU embarked in the process of negotiations
regarding the dismissal of the first group which resulted
in a
settlement agreement in terms of which employees in the first group
were reinstated. The terms of that agreement for the purposes
of this
judgment is discussed later.
[5]
The
second group of employees consisting of the applicants were also
charged for misconduct arising from the same strike action.
They were
charged with misconduct relating to inciting strike action,
intimidation and threatening behaviour. They were found guilty
and
dismissed.
[6]
The
relevant part of the agreement which also forms the main part of the
respondent’s contention that this Court does not
have
jurisdiction to entertain this dispute reads as follows:
‘
1.4.1.10
This agreement is in full and final settlement of the issues
pertaining to the unprotected industrial action that commenced
on 6
January 2010 as well as the subsequent suspension and dismissal of
employees. And clause 2.5 of the agreement reads as follows:
‘
Duration
of the agreement shall be from 1 April 2010 to 31 March 2011.
Clause 5 deals with the
issue of dispute resolution and reads as follows:
‘
5.1
Any dispute arising out of the interpretation and /or application of
this agreement, both while in force and after termination,
shall be
submitted and be determined by arbitration. It is agreed that the
parties agree to refer disputes to private arbitration...’
[7]
The
two main issues raised by the respondent in this matter concern:
1.
The
interpretation and application of the collective agreement.
2.
The
ousting of the Court’s jurisdiction by the provision of the
agreement requiring that disputes that arise out of the agreement
should be referred to private arbitration.
[8]
It
is common cause that at the time of the conclusion of the agreement
the second group of employees consisting mainly of the applicants
were still employed by the respondent. The respondent contends that
the agreement does not for that reason apply to the applicants.
[9]
Although
they concede that they were indeed still in the employ of the
respondent at the time the agreement was concluded, the applicants
contend that the agreement was still in operation at the time of
their dismissal and further that their dismissal arose from the
same
facts and circumstances as those of the first group.
[10]
In
relation to the contention that the agreement provides for the
referral of disputes to private arbitration it was argued on behalf
of the applicants that that proviso was on the authority of
National
Bargaining Council v Karl Bank Mining Centre
,
[1]
invalid. In that case the issue that the LAC dealt with, arose in the
circumstances where the employer and the employee concluded
an
agreement that the disputes arising between them would be referred to
private arbitration, opting out of the bargaining council
agreement.
The question which thus presented itself before the Court on review
was whether the arbitration clause contravened the
provisions of
section 199
(1) (b) of the
Labour Relations Act of 1995
‘because
the clause permitted the employee to be treated in a manner, or be
granted a benefit that is less favourable than
that prescribed by the
collective agreement. The other issue related to the validity of the
agreement in that it amounted to a
waiver of the rights of the
employee provided in terms of
section 199(1)
(b) of the LRA.’
[11]
The
Labour Court in
Karl
Bank Mining Centre
,
[2]
found that the employee had not been subjected to a lesser treatment
to that contemplated in
section 199
(1) (b) of the LRA. That decision
was overturned on appeal by the Labour Appeal Court which found the
arbitration clause to have
been invalid because the LRA which
provides that the provisions of collective agreements cannot be
waived by parties.
[12]
The
key issue in the present case, in my view relates to the
interpretation and application of the agreement. It is trite that the
issue concerning interpretation and application of collective
agreements in terms of
section 24
of the
Labour Relations Act of
1995
, falls within the jurisdiction of the CCMA or a bargaining
council.
[13]
The
case of the applicants in the present instance is that the provisions
of the agreement cater for their situation and therefore
they are
protected from dismissal in the same way as the first group. It
should be noted that the applicants do not dispute that
at the time
the agreement was concluded they were still in the employ of the
respondent.
[14]
The
respondent on the other hand contends that the agreement was intended
to address those employees who at the time the agreement
was
concluded were dismissed for participating in the unprotected
industrial action. The applicants were according to the respondent
dismissed long after the agreement was concluded and therefore the
agreement does not apply to them.
[15]
Although
it is common cause that the applicants were dismissed long after the
conclusion of the agreement, it would appear that
the dismissal arose
from the issues related to the unprotected strike action which the
agreement sought to address. It is also
important to note that
although the applicants were dismissed after the conclusion of the
agreement, the duration of the agreement
as provided for therein
extends to the period after their dismissal.
[16]
The
above analysis in my view reveal that this is a dispute which was
envisaged by the provisions of
section 24
(2) of the LRA,
[3]
which provides that disputes about interpretation of collective
agreements be referred to the CCMA for resolution unless the
agreement
provides otherwise.
[17]
In
light of the above, I agree with the respondent that this Court lacks
jurisdiction to entertain the matter. In other words the
dispute
should have been referred to the CCMA as a dispute concerning
interpretation and application of the agreement. It should
have been
referred there to determine whether the agreement applies to the
applicants even though it was concluded before their
dismissal.
[18]
Having
found that this Court lacks jurisdiction to entertain the applicants’
dispute it is not necessary, in my view, to deal
with the issue of
the referral of the dispute to private arbitration. It should,
however, be pointed out that the facts of this
case are
distinguishable from those in
Karl
Bank Mining Centre
relied upon by the applicants. In the present instance the
requirement that the dispute be referred to arbitration in terms of
the agreement does not contravene the provisions of
section 199(1)
of
the LRA which reads as follows:
‘
199.
Contracts of employment may not disregard or waive collective
agreements or arbitration awards
(1)
A contract of employment, whether concluded before or after the
coming into operation
of any applicable
collective agreement
or arbitration award, may not -
(a)
permit an
employee
to be paid
remuneration
that is less
than that
prescribed
by that
collective agreement
or
arbitration award;
(b)
permit an
employee
to be treated in a manner, or to be granted
any benefit, that is less favourable than that
prescribed
by
that
collective agreement
or arbitration award; or
(c)
waive the application of any provision of that
collective
agreement
or arbitration award.
(2)
A
provision in any contract that purports to permit or grant any
payment, treatment, benefit, waiver or exclusion prohibited by
subsection (1) is invalid.
[19]
In
the present instance the agreement in question is not an employment
contract but a collective agreement which is in line with
the
provisions of
section 24
of the LRA and provided for a dispute
resolution mechanism in the form of private arbitration in the event
of a dispute arising
between the parties.
[20]
It
follows from the above that this Court does not have jurisdiction to
entertain the dispute filed by the applicants and accordingly,
the
jurisdictional point raised by the respondent is upheld. It does not
however, appear that the applicants acted unreasonably
in instituting
these proceedings and therefore it would not be appropriate in my
view to allow the costs to follow the results.
Order
[21]
In
the premises, the applicants’ statement of case is dismissed
with no order as to costs.
Molahlehi
Judge
of the Labour
Court
of South Africa.
APPEARANCES:
For the Applicant:
Advocate
Molobedi
Instructed
by: Ntimane Attorneys
For the
Respondent:
Advocate L Pillay
Instructed
by: Ledwaba
Mazwai Attorneys
[1]
[2012]
11
BLLR 110
(LAC).
[2]
(2010)
31 ILJ 2076 (LC).
[3]
Section
24
of the LRA prides as follows:’(2)
If there is a
dispute
about the interpretation or application of a
collective
agreement
,
any party to the
dispute
may refer the
dispute
in writing to the Commission if -
(a)
the
collective agreement
does not provide for a procedure as
required by subsection (1);
(b)
the procedure provided for in the
collective agreement
is not
operative; or
(c)
any party to the
collective agreement
has frustrated the
resolution of the
dispute
in terms of the
collective
agreement
.