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[2014] ZALCJHB 222
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CCD Couriers (Pty) Ltd v Matona and Others (J1072/14) [2014] ZALCJHB 222 (20 May 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, IN JOHANNESBURG
JUDGMENT
OF
INTEREST TO OTHER JUDGES
CASE
NO: J 1072-14
In
the matter between:
CCD COURIERS (PTY)
LTD
Applicant
AND
MATONA, LENA
DIMAKATSO & 11 OTHERS
First
Respondent
NATIONAL
BARGAINING COUNCIL FOR THE ROAD FREIGHT INDUSTRY
Second
Respondent
Heard:
20 May 2014
Delivered:
20 May 2014
Summary:
(Urgent – application to postpone arbitration hearing –
pending review of ruling on representation
of applicant’s by
co-applicants in arbitration proceedings – application
dismissed)
JUDGMENT
LAGRANGE,
J
[1]
In this matter, a judgment was handed down
in terms of paragraph [8] below. My brief reasons are set out herein.
[2]
The applicant in this matter sought to
prevent arbitration proceedings in an unfair dismissal dispute from
continuing until such
time as its review application on a
jurisdictional ruling dated 3 July 2013 has been finalised.
[3]
The essence of the jurisdictional point
taken by the applicant was that the 13 employees whose dispute
concerns their simultaneous
dismissal for the same, or similar
reasons on 1 February 2013, could not be heard jointly with one of
them representing all of
them in the proceedings. The arbitrator
dismissed the
in limine
objection noting that the employees all referred the matter jointly
to arbitration and that meant the provisions of Rule 27.2 for
the
conduct of proceedings before the Bargaining Council (the second
respondent), which is the same as Rules 25 (1) (b) (ii) and
(iii) of
the CCMA rules and which deals with who may represent parties in the
arbitration proceedings, was not applicable. I note
in passing that
the matter might have been dismissed on the basis of non-joinder of
the arbitrator as well.
[4]
Whether
the arbitrator’s reasoning was correct in all respects, the
issue of another employee acting as a representative of
a colleague
in arbitration proceedings has already been expressly considered by
the Labour Appeal Court, in
BIFAWU
& another v Mutual and Federal Insurance Company Ltd
.
[1]
In
that matter, the LAC was considering section 138 (5) of the LRA,
which previously governed representation in arbitration proceedings
before the CCMA. The court found that:
“
[S]ection
138(5)
of
the LRA expressly refers to a person being “represented at the
arbitration proceedings” in the context of this being
a
self-evident right. In the context of labour law, the most basic
right of representation must be that by a fellow employee or
a
‘friend’. The right of an employee at a
disciplinary enquiry (which must include an arbitration under the
auspices of the CCMA) to be represented by a fellow employee is
meaningless unless a fellow employee has the right, without fear
of
recrimination or reprisal, to represent an employee at such an
enquiry. The respective rights, inverse and complementary to
one
another, are inextricably linked: the one follows from the other.
Even if the right to represent a fellow employee at a disciplinary
enquiry has not been expressly conferred by the LRA, it necessarily
arises from it, read together with
section
23(1)
of the Constitution.”
[2]
[5]
Apart
from the fact that in the light of this authority there seems little
prospect of the review application succeeding, this court
is loath to
interfere with the informal dispute resolution mechanisms of
conciliation and arbitration on a piecemeal basis, except
in
exceptional circumstances. This not a case where there has clearly
been an unlawful act on the part of the arbitrator in the
sense that
he manifestly acted outside his powers. The applicant has not
advanced any other exceptional basis on which the relief
should be
granted. In this regard, I see no reason why the principles governing
intervention in incomplete arbitration proceedings
should be
different to the principles governing intervention in incomplete
disciplinary proceedings. The governing principle laid
down by the
Labour Appeal Court in
Booysen
v Minister of Safety & Security & others
[3]
is equally applicable to incomplete arbitration proceedings in my
view.
[6]
In
any event, I concur with the view expressed by Van Niekerk, in
Trustees
for The Time Being of the National Bioinformatics Network Trust v
Jacobson and Others
[4]
:
“
There
are at least two reasons why the limited basis for intervention in
criminal and civil proceedings ought to extend to uncompleted
arbitration proceedings conducted under the auspices of the CCMA, and
why this court ought to be slow to intervene in those proceedings.
The first is a policy related reason – for this court routinely
to intervene in uncompleted arbitration proceedings would
undermine
the informal nature of the system of dispute resolution established
by the Act. The second (related) reason is that to
permit
applications for review on a piecemeal basis would frustrate
expeditious resolution of labour disputes. In other words,
in general
terms, justice would be advanced rather than frustrated by permitting
CCMA arbitration proceedings to run the course
without intervention
by this court.”
[7]
In the
circumstances, I am satisfied that the applicant has not made out a
case for staying the pending arbitration proceedings.
[8]
The application is
dismissed and no order is made as to costs.
_______________________
R LAGRANGE, J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
M. Verwey for Martin Verwey Inc.
FIRST
RESPONDENT:
In Person
[1]
[2006]
2 BLLR 118 (LAC)
[2]
At
126, para [26]
[3]
(2011)
32 ILJ 112
(LAC)
at
para [54]
[4]
(2009)
30
ILJ
2513
(LC)