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[2014] ZALCJHB 183
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NUMSA obo Members v Murray and Roberts Projects and Another (J1982/2013) [2014] ZALCJHB 183 (23 May 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: J1982/2013
In
the matter between:
NUMSA
obo
MEMBERS
................................................................................................
Applicant
And
MURRAY
AND ROBERTS
PROJECTS
.........................................................
First
Respondent
MEDUPI
FABRICATION (PTY)
LTD
.........................................................
Second
Respondent
Heard:
16 May 2014
Delivered:
23 May 2014
RULING
- PRELIMINARY POINTS
TLHOTLHALEMAJE,
AJ
INTRODUCTION
AND BACKGROUND:
[1]
The main application as launched by the
Applicants in this matter on 5 September 2013 pertained to the
provisions of section 189A
(13) of the Labour Relations Act (“The
LRA”). That application was heard by the Honourable Van Niekerk
J on 10 October
2013. An order was made on 21 November 2013 in the
following terms:
1)
‘
The application in terms of s189A
(13) is referred to the trial roll in terms of Rule 7(7) (b) for
hearing of oral evidence in relation
to the disputes of fact on the
papers, and in particular the question whether the applicants’
members had completed the task/job
for which they were engaged.
2)
The application in terms of s189A (13) and
the referral to oral evidence is postponed
sine
die
.
3)
The Registrar is directed to enrol the
application in terms of s189A (13) for hearing simultaneously with
any action that the applicant
may institute in relation to the
substantive fairness of the termination of employment of its members.
Should the applicant not
institute action in this Court in relation
to the substantive fairness of the dismissals, the applicant may
enrol the application
in terms of s189A (13) on the trial roll as
contemplated by parahraph 1 above.
4)
The costs of the s189A (13) are reserved.’
[2]
Subsequent to that order, the Respondents
had raised several preliminary points which the parties had agreed
needed to be disposed
of before the trial commenced on 26 May 2014.
By way of background, the second Respondent has terminated the
employment contract
of a number of NUMSA members in accordance with
what is referred to as ‘demobilisation’. This term
derives from the
parties’ collective agreement known as the
‘Project Labour Agreement’ (‘The PLA’).
NUMSA’s
contention was that the termination of these contracts
was based on the Respondents’ operational requirements, and
that to
this end, the provisions of section 189 and 189A of the LRA
found application. NUMSA further held the view that the Respondents
did not comply with these provisions, and it was therefor entitled to
an order under the provisions of section 189A (13) of the
LRA. NUMSA
in its application, also disputed the fact that the tasks for which
its members were employed had been completed at
the time the
terminations were effected. The Respondents’ view on the other
hand is that it was entitled to terminate the
contracts by following
the provisions of the PLA, and that the provisions of sections 189
and 189A of the LRA found no application.
THE
PRELIMINARY POINTS:
Are
the preliminary issues res judicata?
[3]
The Applicants’ contention is that
the preliminary issues which the Respondents seek to raise are
res
judicata
as the application before Van
Niekerk J was considered on the merits, and that the principal
factual issues in dispute on the merits
were referred to oral
evidence. Seven preliminary points were raised by the Respondents,
viz;
(a)
The jurisdiction of this court. In this
regard the Respondents’ contention was the PLA and a collective
agreement of 16 August
2013 operated to exclude jurisdiction of this
Court. It was contended that both agreements contemplated that
disputes in relation
to dismissals should be resolved by way of
arbitration procedures provided in these agreements.
(b)
NUMSA was barred from bringing this
application as it had failed to do so within the prescribed time
limits under section 189A (17)
of the LRA. Despite this issue having
been decided by Van Niekerk J in his judgment, the Respondents’
view was that it should
be revisited as Van Niekerk J’s
approach was incorrect.
(c)
Mis-joinder of the two Respondents.
(d)
The Non-joinder of other parties to the PLA
as the main application is concerned with the application and
interpretation of the
PLA.
(e)
Waiver, in that NUMSA, having referred a
dispute to the CCMA on 2 July 2013, had subsequently agreed to
conciliation in terms of
section 150 of the LRA.
(f)
Applicants not properly cited. In this
regard, it was contended that the list of members was not attached to
the Applicants’
Notice of Motion.
(g)
A supplementary affidavit which the
Applicants sought to introduce, and to which the Respondents were
opposed.
[4]
For
a plea of
res
judicata
to succeed, the requirements to be met were summarised in
Patterson
v Minister of Safety and Security and Another
[1]
as follows:
(a)
there has already been a prior judgment;
(b)
in which the parties were the same; and
(c)
the
same point was in issue:
[2]
(d)
The
prior judgment must have been final or constitute a decision which
has a final effect between the parties based on the merits
of the
point in issue.
[3]
(e)
No
issue can be raised whether the prior judgment was correct or not.
Every judgment is presumed correct and can only be challenged
on
appeal.
[4]
[5]
A determination as to whether the plea of
res judicata
on the
preliminary points the Respondents seek to raise needs a
consideration of the issues that were before Van Niekerk J and
those
that he had disposed of, if any in his judgment.
[6]
The sole preliminary point that Van Niekerk J dealt with in his
judgment pertained to the alleged lateness of the application.
For
the sake of completeness, it is apposite to restate in full what the
learned Judge had to say in this regard.
“
Section
189A (17) provides that an application in terms of subsection (13)
must be brought not later than 30 days after the employer
has given
notice to terminate the employee’s services or, if notice is
not given, the day on which the employee is dismissed’.
The
letter on which MRP relies as comprising notice to the union of the
demobilisation refers to the termination of the contracts
of ‘some
of our employees who are members of NUMSA’ during July 2013.
The trigger in s189A (17) is the issuing of notice
of intention to
terminate employment, i.e. the giving contractual notice, or, in the
absence of notice, the date of dismissal.
The terms of the letter
dated 24 June 2013 does not constitute notice to terminate an
employee’s services; it is no more
than a notice to the effect
that the employment of a number of as yet unidentified employees
would be terminated at some future
date. It was only on 1 September
2013 that individual employees were notified that their employment
had been terminated, and that
their last day at work would be 2
September 2012.
Given
that the present application was filed on 5 September 2013, in my
view, the application was served within the time limit contemplated
by section 189A (17)”
[5]
(My
emphasis)
[7]
Having stated the above, the learned Judge had then proceeded to deal
with the material facts in dispute, that ended with a
conclusion for
referral for oral evidence. The Respondent in contending that the
preliminary points were not
res judicata
had submitted that
Van Niekerk J did not deal with the merits solely. It was
nevertheless conceded that the learned Judge had ruled
on one of the
preliminary points, and in particular, the non-compliance with the
time bar in section 189 A (17). In the light of
this concession, I
fail to understand the persistence that this Court should revisit the
issue surrounding the time limits provided
in section 189A (17).
[8]
If Judge Van Niekerk had not issued a ruling on the preliminary issue
pertaining to the time limits, there would have been no
reason on his
part to have continued to deal with the other aspects of the
application in that he would have had no jurisdiction
to do so, as
there would have been no proper application before him. The issue
pertaining to the time limits as raised before Van
Niekerk J
pertained to whether there was a need for the Applicants to file an
application for condonation, and to the extent that
he had found that
there was no need for such an application, this disposed of that
issue. Once a court establishes that an application
is properly
before it, it therefor assumes jurisdiction over the dispute, i.e.
the subject matter of the application. That issue
in my view cannot
be resuscitated in the same proceedings unless a proper application
for leave to appeal is launched in that regard.
A ruling as to the
jurisdiction of the Court is final unless attacked through appeal
proceedings. To this end, the issue in regards
to the time limits is
res judicata, and this conclusion disposes of the second preliminary
issue raised by the Respondents.
[9]
As to whether the judgment of Van Niekerk J disposed of the merits of
the application to exclude the other preliminary issues
raised is
another matter altogether. What is clear from the judgment is that
all the factual issues in dispute on the merits of
the case were
referred to oral evidence. In regards to the first preliminary point
raised as to whether the jurisdiction of the
Court is ousted by the
provisions of the PLA, Van Niekerk J stated the following:
“
In
my view, for present purposes, little purpose would be served in
determining whether s189A has been ousted, or in making any
of the
orders contemplated by s189A (13). The prior and primary issue at
stake in these proceedings relates more closely to what
has sometimes
been referred to as ‘the need to retrench, i.e. whether the
jobs/tasks that are subject of the LCDs signed
by the union members
have in fact been completed. Once this question is answered, and only
if it is found that the jobs/tasks remain
uncompleted, can there be
any enquiry into the application of s189 and what might constitute
fair procedure for the purposes of
that section”
[6]
[10]
From the above, it is apparent that Van Niekerk J declined to make
any determination as to whether section 189A, upon which
this
application was predicated, was applicable. In his view, the issue
could not be determined without the factual merits of the
merits
being determined. He had therefor not made any findings on the
jurisdiction of the court insofar as the issue of the proper
forum is
concerned.
[11]
The Respondents’ main contention was that the dispute should be
referred for arbitration with the recognition of an imperative
to
respect and enforce arbitration agreement
[7]
.
In regards to the jurisdiction of the court, the starting point is
the provisions of section 157 (1) of the LRA which provides:
“
Subject
to the Constitution and section 173, except where this Act provides
otherwise, the Labour Court has
exclusive
jurisdiction
(My emphasis) in respect
of all matters that elsewhere in terms of this Act or in terms of any
other law are to be determined by
the Labour Court”.
[12]
It was not in dispute that jurisdiction is determined on the basis of
the pleadings, and that the applicant’s pleadings
are
determinative where the jurisdiction of the court is challenged
[8]
.
In interpreting
Gcaba
,
Wallis AJA (as he then was) in
South
African Maritime Safety Authority v McKenzie
[9]
stated the following:
“
Once
more, as in other cases that have come before this court, the plea,
so far as it purports to raise a jurisdictional challenge,
is
misdirected. As the Constitutional Court has reiterated in Gcaba v
Minister of Safety & Security & Others, the question
in such
a case is whether the court has jurisdiction over the pleaded claim
and not whether it has jurisdiction over some other
claim that has
not been pleaded, but could possibly arise from the same facts. In
this case the particulars of claim could not
have made it clearer
that Mr McKenzie’s claim is for damages for breach of
contract.”
[10]
[13]
From the above authorities, it is apparent that whether the applicant
is entitled to the relief it seeks, is a different question.
Thus
what needs to be considered is whether based on the applicant’s
pleadings the court is enjoined to entertain the matter.
In this
case, the Applicants application is brought in terms of section 189A
(13) of the LRA which provides;
“
If
an employer does not comply with a fair procedure, a consulting party
may approach the Labour Court by way of an application
for an order-
(a)
Compelling the employer to comply with a
fair procedure;
(b)
Interdicting or restraining the employer
from dismissing an employee prior to complying with a fair procedure;
(c)
Directing the employer to reinstate an
employee until it has complied with a fair procedure;
(d)
Make an award of compensation, if an order
in terms of paragraphs (a) to (c) is not appropriate.”
[14]
NUMSA’s case has always been that the termination of the
contracts of employment of its members was for operational
requirements, and that sections 189 and 189A of the LRA should apply.
The Respondents’ contention in the alternative as indicated
in
paragraph 6 of the heads of argument is that there has been
substantial compliance with sections 189 and 189A of the LRA. To
the
extent that NUMSA has stated its case to fall within the purview of
the provisions of section 189 and 189A, and further to
the extent
that this court has exclusive jurisdiction of matters under section
189A (13), it cannot be correct that the provisions
of the PLA or the
agreement of 16 August 2013 oust the jurisdiction of this court.
Furthermore, the provisions of section 157(5)
[11]
cannot find application to the extent that section 157 (1) makes
reference to ‘
exclusive
jurisdiction’
.
[15]
As I understood the arguments, the process of identifying LDC’s
for termination is referred to in the PLA. To the extent
that the
provisions of section 189 A (13) refer to ‘non-compliance with
a fair procedure’, and further to the extent
that NUMSA is of
the view that a fair procedures has not been complied with, it is
indeed entitled to approach the court in terms
of that provision. As
to whether NUMSA’s case in terms of the provisions of section
189A (13) is sustainable is a matter
which Van Niekerk J had
determined should be referred for oral evidence.
Misjoinder and
joinder:
[16]
The Respondents contention in this regard was that the relief that
was claimed against the First Respondent (MRP) had nothing
to do with
the relief claimed against the Second Respondent, and that similarly,
the relief claimed against the Second Respondent
had nothing to do
with the relief claimed against MRP. This argument was premised on
the contention that two separate and distinct
sets of employment
relationships existed between the individual applicants and MRP and
the Second Respondent. It was argued that
though similar, it is not
the same questions of fact or law which are to be determined in
respect of the relief claimed against
the two respondents.
[17]
NUMSA held the view that the cause of action and the relief sought in
respect of both respondents was identical as both operated
on the
Medupi site, were parties to the PLA, had entered into LDC’s
with the applicants pursuant thereto, and sought to demobilise
the
employees at the same site.
[18]
As I understood from Van Niekerk J’s judgment, MRP had planned
to commence the demobilisation process consequent upon
the completed
tasks, and had communicated with NUMSA indicating its intentions in
that regard. It was MRP that had issued notices
to employees about
the demobilisation process. Van Niekerk J had pointed out that the
factual circumstances relevant to the Second
Respondent were not
materially different
[12]
. To
the extent that there was a factual dispute pertaining to the
terminations of the contracts effected by both Respondents, those
disputes have been referred for oral evidence, and there is thus no
merit in the argument that the two Respondents should not have
been
joined.
[19]
With regards to the issue of non-joinder, the Respondents’
contention was that the provisions of the PLA that they rely
on in
the application were relied upon by other employers, and that this
application concerned the application and interpretation
of the PLA.
[20]
NUMSA denied that this application turned on the application and
interpretation of a collective agreement, and contended that
it was
plainly a dispute between employees and their employers as to the
proper termination of employment contracts. In this regard,
it was
contended that the other parties to the PLA have no interest in this
matter.
[21]
I took issue withAdv. Van der Merwe on behalf of the Respondents over
the need to join other parties that have no interest
in this matter
as to the reason they should be dragged to court. In
Amalgamated
Engineering Union v Department of Labour
[13]
,
the principle that a third party must be joined
"if
he is shown to have a direct and substantial interest in the subject
matter of the litigation"
was re-emphasied. The test is whether a party that is alleged to be a
necessary party, has a legal interest in the subject matter
which
may be affected prejudicially by the judgment of the court in the
proceedings concerned. Furthermore, the principle that a
joinder is
only necessary depending on the nature of the relief sought is
well-established
[14]
.
[22]
I am of the view that a case has not been made out to show what
substantial interest the other parties to the PLA has to these
proceedings other than the contention that this matter concerns an
interpretation and/or application of the PLA, which does not
really
appear to be the case in view of the provisions of the LRA under
which the application was brought. On the facts as pleaded,
this
approach cannot be correct in that the main factual disputes as
referred to oral evidence are clear. Furthermore, relief is
sought
against the two Respondents in this matter and not against the other
parties to the PLA including unions. To this end, a
case has not been
made out to join these other parties.
Waiver:
[23]
The Respondents’ contention was that NUMSA referred a dispute
in terms of section 189A to the CCMA, on 2 July 2013, and
that in the
course of that referral, the parties had agreed to conciliation in
terms of section 150 of the LRA. It was contended
that by doing so,
NUMSA had abandoned the first referral, and that it could thus not
revive an abandoned referral.
[24]
The first difficulty that the Respondents have with this preliminary
point is that it is at this stage raised belatedly. Once
Van Niekerk
J had determined that the section 189 A(13) application was properly
before the court, this disposed of any issues
as to whether the court
could deal with the merits of the matter, other than those already
dealt with in this judgment. There is
further no case made out that
NUMSA expressed an unequivocal intention to abandon its rights in
terms of section 189A (13). If
this point was strenously raised
before Van Niekerk J, along with the issues surrounding the alleged
non-compliance with the provisions
of section 189A (17), a
determination in that regard would have been made. However, to the
extent that this hurdle was passed by
reference to the fact that
there was compliance with the provisions of section 189A (17), I can
find no substance in this point
as raised by the Respondents, more
specifically since as pointed out on behalf of the NUMSA, a
section 23 constitutional
right cannot be waived on the facts.
The
citation of the parties:
[25]
The Respondents contention in this regard was that the Notice of
Motion that was served on them did not have a list of members
annexed
to it. In my view, this omission cannot amount to a material defect
to the extent that the matter cannot be heard or dismissed.
Such
matters can be dealt with in pre-trial conferences, and the only
dispute that can arise from such a process may be in regards
to
issues of mandate, which the court may be called upon to decide. Be
that as it may be, it is my view that these issues should
be dealt
with in terms of a pre-trial conference, including the exchange of
further particulars.
The
supplementary affidavit not properly before the Court:
[26]
The Respondents complained that NUMSA sought to introduce a
supplementary founding affidavit which they opposed, on the basis
that leave to deliver this affidavit has not been granted by the
Court. Even if this issue was raised before Van Niekerk J, it
appears
from his judgment
[15]
that the
learned Judge had made reference to that supplementary affidavit in
pointing out what NUMSA had placed in dispute. To
the extent that Van
Niekerk J made reference to the supplementary affidavit, there is no
other conclusion to be reached other than
that it is taken that it is
properly before the court. If any prejudice has been suffered by the
Respondents as a consequence of
this supplementary affidavit, nothing
prevented them from seeking leave of the court to file a response to
it.
[27]
With regard to costs, considerations of law and fairness dictate that
in view of the nature of the preliminary points raised,
costs should
follow the results. However in view of the fact that the matter is
set down for trial where the main factual disputes
are to be
determined it is deemed appropriate to determine any costs order in
the cause.
ORDER:
i.
The preliminary points raised by the
Respondents are dismissed.
ii.
The parties are directed to complete a
pre-trial minute which copies should be presented in court on 26 May
2014 when the trial
commences.
iii.
The pre-trial mentioned above should deal
with all outstanding matters, including complete compliance with
requests by either party
for any further particulars.
iv.
Any outstanding matters as at the time of
the commencement of trial will be dealt with then and be subject to
this Court’s
further directives and ruling.
v.
The costs of this application shall be in
the cause.
TLHOTLHALEMAJE, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For the Applicant:
Adv. H Van Der Merwe
Instructed by :
Fluxmans INC
For the First
Respondent: Adv. T Ngcukaitobi with Adv. J Raizon
Instructed
by: Ruth Edmonds Attorneys
[1]
(4673/2005)
[2013] ZAWCHC 73
(8 May 2013)
[2]
see
Jacobson
v Havinga t/a Havingas
2001 (2) SA 177
(TPD) at 179E-F
[3]
see
Rail
Commuters’ Action Group and Others v Transnet Ltd and Others
2006 (6) SA 68
(CPD) at 74F-H
[4]
see
African
Farms and Townships Ltd v Cape Town Municipality
1963 (2) SA 555
(AD) at 564C-E
[5]
Para
3 of the judgment
[6]
At
para 16
[7]
Lufuno
Mphaphuli & Associates (Pty) Ltd v Andrews
2009 (4) SA 529
(CC) at para 219
[8]
Gcaba
v Minister of Safety and Security and
others
2010 (1) SA 238 (CC)
[9]
2010
(3)15 SA 601 (SCA)
[10]
At
para 7
[11]
Section
157 (5) provides that;
‘
Except
as provided in section 158 (2), the Labour Court does not have
jurisdiction to adjudicate an unresolved dispute if this
Act
requires the dispute to be resolved through arbitration’
[12]
At
para 9
[13]
1949
(3) SA 637 (A)
[14]
Gordon
v Department of Health: Kwazulu-Natal
2008 (6) SA 522 (SCA);
[15]
At
para 10