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[2014] ZALCJHB 104
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Pearson and Others v TS Afrika Catering Solutions and Another (JS1135/12) [2014] ZALCJHB 104 (28 March 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT
REPORTABLE
CASE
NO: JS 1135/12
In
the matter between:
DENNIS
PEARSON AND 14
OTHERS
Applicant
and
TS
AFRIKA CATERING
SOLUTIONS
First
Respondent
SODEXO
SOUTHERN AFRICA (PTY)
LTD
Second
Respondent
Heard:
28 February 2014
Judgment:
28 February 2014
Edited:
28 March 2014
EX
TEMPORE
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
cancellation of the outsourcing contract between
the first respondent and Media 24, and the subsequent awarding of the
same contract
by Media 24 to the second respondent, constitutes the
transfer that business as a going concern for the purposes of section
197
of the Labour Relations Act.
[2]
The applicants also seek a declaratory
order to the effect that their contracts of employment transferred to
the second respondent
with no loss of benefit, and that this order
operates retrospectively from 1 May 2012. The statement of
claim was drafted
and the referral to this Court made by the
applicants’ erstwhile attorney of record. He withdrew a week
ago.
[3]
In response to the statement of claim, the
second respondent submits that the declaratory relief sought by the
applicant is not
competent and that regardless of the merits of the
claim, the referral should be dismissed for that reason. In
essence, as
I understood the argument, 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 section 197 applies, to be of no
consequence.
At the outset of the trial, which commenced
yesterday, the parties’ representatives were invited to address
the Court on
this issue.
[4]
The material facts relevant to the
preliminary issue I have outlined are briefly the following. On
14 April 2012, Media 24
advised the first respondent that the second
respondent would take over the business of providing catering at its
premises, with
effect from 1 May 2012. When the applicants
presented themselves after a handover to the second respondent, they
were told
that there were no jobs for them at the site and they say
that they were evicted from Media 24’s premises.
[5]
It appears from the pre-trial minute that
the majority of the applicants were employed by the first respondent
on fixed-term contracts,
on other sites, with effect from June 2012
and that they remain so employed. I accept that the terms of
that employment may
be different, but the fact remains that in
respect of all but three of the applicants continue to be employed by
the first respondent.
[6]
On 5 May 2012, the applicants referred
disputes to the CCMA. They categorised the dispute as ones
concerning an unfair dismissal
and indicated that they wish to be
reinstated or compensated. On 22 May 2012, for reasons that are
not apparent to me, the
applicants referred a dispute to the
Bargaining Council, in which they claimed that they had been unfairly
dismissed by the second
respondent.
[7]
That dispute was categorised as a dispute
concerning an unfair retrenchment. The reason for that categorisation
is not apparent.
The dispute remained unresolved after
conciliation meeting and on 2 August 2012, a significant date for the
purposes of the
preliminary issues that have been raised, a
certificate of outcome to this effect was issued by the Council.
[8]
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 hearing was
preceded by correspondence between the parties’ respective
attorneys. Specifically,
the second respondent’s attorney
advised the applicants’ erstwhile attorney that given the
nature of the claim the
CCMA lacked jurisdiction to arbitrate the
dispute and that the matter ought to have been referred to this
Court. Despite
that advice, the applicants persisted with their
claim in the CCMA. Not surprisingly, the commissioner ruled that the
CCMA lacked
jurisdiction
[9]
On 7 March 2013, the applicants’
erstwhile attorney filed the statement of case to which I have
referred. The statement
of case makes no mention of any
dismissal, let alone an unfair dismissal. The high watermark for the
applicants is an averment
to which I have made reference regarding
events when the applicants presented themselves at Media 24 after 30
April when the applicants
in effect say that their tender of services
was refused.
[10]
It is often forgotten that this Court is a
creature of statute, that its powers of jurisdiction are defined and
conferred by the
LRA and other labour related legislation. The
Court has authority and inherent powers only in relation to matters
under its
jurisdiction. Section 157 of the Act provides that
the Court has 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.
[11]
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 7(A) applies 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 Rules
are far more prescriptive. The nature of the dispute between
the parties
both serves to confer jurisdiction on the Court but also
dictates the manner in which a matter is to proceed, whether by way
of
action or motion. This Court is afforded a large range of
powers in terms of section 158 of the Act, including the power to
make declaratory orders. But the Court may not exercise any of
its powers if it has no jurisdiction.
[12]
The applicants sought a declaratory order,
by way of a Rule 6 referral, to the effect that s 197 applies to a
particular transaction.
As I have indicated, it appears to me
from the pleadings filed (which is the basis on which jurisdiction is
to be determined),
that this Court has no jurisdiction to entertain
the applicants’ claim. There is no unfair dismissal claim
that has
been referred to this court. The applicants ought at least
to have asserted the existence of a dismissal, and averred sufficient
facts to sustain the claim that the reason for the dismissal is a
transfer in terms of section 197, or a reason related to the
transfer. In other words, in the statement of case, the
applicants failed to plead facts to sustain a course of action
recognisable
by this Court in terms of Rule 6. I do not
understand the applicants to dispute this proposition.
[13]
This morning, after the proceedings were
stood down yesterday in order for the Court to prepare a ruling in
regard to the preliminary
issues raised by the second respondent, the
applicant filed an amendment in terms of which the intention to amend
the statement
of case in a number of respects was foreshadowed.
That amendment seeks to introduce a reference to the existence of a
dismissal
and the reason for the dismissal, being one related to a
transfer contemplated in section 197.
[14]
The terms of the amendment further
acknowledge that the applicants have failed to comply with section
191(5)(b)(i) of the Act, in
that the statement of claim was filed
outside of the 90-day period, which runs from the date on which the
certificate of outcome
was issued. As I have indicated, the
statement of claim was filed some seven months after that date,
thereby being some four
months out of time. In the notice of
amendment, the applicants seek to explain the reasons for the delay.
These reasons relate
to advice received, it would appear, from the
Bargaining Council, and subsequent directions issued by the CCMA.
[15]
The amendment also contemplates the substitution of the relief sought
by incorporating prayers which would have the effect
of condoning the
late referral of the dispute for adjudication, and an order to the
effect that the applicants were dismissed for
an automatically unfair
reason in terms of section 187(1) of the Act. More
specifically, each of the applicants claims 24
months’
remuneration calculated at the rate of remuneration as at the date of
their dismissal.
[16]
Mr Watt-Pringle SC, on behalf of the second
respondent, objected to the proposed amendment and submitted
that the applicants
had failed to file a substantive application for
amendment setting out all of the relevant facts and circumstances in
which the
amendment was sought, and that in the absence of such a
substantive application and in view of the prejudice that would be
caused
to the second respondent should the amendment be granted, the
amendment should be refused.
[17]
This Court has a broad discretion as to
whether or not to allow amendment to pleadings. Obviously, this
Court will generally
lean toward granting an application to amend
pleadings, but the overriding consideration is that where an
amendment is allowed
it must be done without prejudice and without
causing an injustice to any party.
[18]
In my view, the inevitable delay that any
postponement for that purpose would occasion the prejudice that would
be occasioned must
necessarily weigh heavily with me. Given that this
matter has taken almost some two years to reach this Court, to
postpone this
matter further would not only substantially prejudice
the second respondent, it would also serve to frustrate the statutory
purpose
of expeditious dispute resolution established by the Labour
Relations Act. For that reason, an amendment to the statement of
claim
at this late stage ought to be refused.
[19]
More fundamentally, there is no proper
application for condonation before this Court. Any application for
the condonation of the
late referral of a dispute must necessarily be
a substantive application in which the applicant sets out precisely
the period of
delay and the reasons for that delay in a manner that
take this Court into the deponent’s confidence, and which
enables this
Court to exercise the discretion that it must
necessarily exercise in determining whether or not condonation should
be granted.
[20]
In the present circumstances, there is no
such application. If a dispute is referred late to this Court and
there is no proper application
for condonation, this Court has no
jurisdiction to entertain the referral. So it seems to me that
even if I were inclined
to grant the amendment, in the absence of a
proper and full substantive application for condonation, this Court
has no jurisdiction
to entertain the claim that has been referred to
it. For this reason, in my view, the applicants’ claim
stands to be
dismissed.
[21]
In so far as costs are concerned, section
162 of the Act confers a broad discretion on this Court to make
orders for costs on the
basis of the requirements of the law and
fairness. Although the institution of this litigation was
misguided to say the least,
I suspect that the applicants relied
heavily on the advice of Mr Samuels, their previous attorney of
record. They were badly
advised. The irony is that had
the applicants approached this Court April 2012 by way of an urgent
application for the declaratory
order that they now seek, the Court
would in all likelihood have entertained that application. The
irresistible conclusion to be
drawn is that Mr Samuels, having
realised that the statement of claim was out of time, contrived to
avoid the applicable time limits
by recasting the terms of the
dispute. In these circumstances, it would be inappropriate to hold
the applicants personally liable
for the respondent’s costs.
[22]
In so far as the further postponement of
these proceedings is sought, in my view, any further delay in this
matter should not be
countenanced. I come to this conclusion, as I
have indicated, particularly mindful of the fact that unfair
dismissal disputes in
particular are required to be diligently
pursued and expeditiously resolved.
[23]
The Labour Relations Act imposes strict
time limits on the referral of disputes to the CCMA or a Bargaining
Council, and for further
referral either to arbitration or to this
Court. This Court too has been reproached by the Supreme Court
of Appeal and the
Constitutional Court for what has been termed
systemic delays in the resolution of labour disputes. But while
no doubt this
Court as an institution is on occasion guilty of
perpetrating systemic delay, it is not in all cases that this is so.
There
are cases, the present case being an example, where a matter
has been pursued other than with the degree of diligence required by
the Labour Relations Act thus frustrating the purpose of expeditious
dispute resolution.
For
those reasons, I make the following order:
1.
The applicants’ referral is
dismissed.
2.
There is no order as to costs.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT