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[2014] ZALCCT 38
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Abbatoir v CSAAWU obo Dube and Others; In Re: CSAAWU obo Dube and Others v Abbatoir (C315/2011) [2014] ZALCCT 38 (31 July 2014)
REPUBLIC
OF SOUTH AFRICAT
HE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
reportable
Of
interest to other judge
C
ase
no: C 315/2011
In
the matter between:
ROBERTSON
ABBATOIR APPLICANT
AND
CSAAWU
OBO DUBE &
OTHERS RESPONDENTS
IN
RE:
CSAAWU
OBO DUBE & OTHERS
APPLICANTS
AND
ROBERTSON
ABBATOIR
RESPONDENT
Heard
:
29 July 2014
Delivered
:
31 July 2014
Summary:
Interlocutory application challenging
locus standi
of 9 employees. Dismissal dispute referred to CCMA before dismissal
of employees according to employer. Union relies on termination
lockout on earlier date and alleges automatically unfair dismissal in
terms of LRA s 187(1)(c). That dispute conciliated and all
applicants
properly before court in respect of that dispute arising on 30
November 2010 but not in respect of dismissal on 23 December
2010.
JUDGMENT
STEENKAMP
J
Introduction
[1]
This
is an interlocutory application brought by Robertson Abbatoir,
challenging the
locus
standi
of nine of its former employees who allege that they were dismissed
by the abbatoir and that the dismissal was automatically unfair
in
terms of s 187(1)(c) of the LRA.
[1]
[2]
The respondent in this application and the
applicant in the main referral is the Commercial, Stevedoring,
Agicultural, and Allied
Workers Union (CSAAWU). The union acts on
behalf of some 42 of its members who were dismissed by the abbatoir
at the end of 2010.
[3]
Central to this application is the position
of nine of those employees. The abbatoir argues that the dispute
about the dismissal
of those nine employees has not been conciliated;
therefore, they have no
locus standi
(and indeed, this Court has no jurisdiction to consider the dispute
about their dismissal).
[4]
That question, in turn, depends upon the
union’s case in the main referral. The abbatoir says the nine
workers were dismissed
for insubordination on 23 December 2010, after
the dispute that is now before Court had already been referred to the
CCMA for conciliation;
the union argues that the dispute arose on 30
November and that dispute is properly before court.
[5]
There are two further ancillary issues on
which the parties could not reach agreement at a pre-trial meeting.
Those are the need
for an inspection
in
loco
and the duration of the trial. The
court is also asked to pronounce on those issues.
Background
facts
[6]
The employees who are party to this
dispute, represented by CSAAWU, were all employed by the abbatoir. A
dispute arose concerning
their working hours and the number of
carcasses they were required to slaughter per day. The union says
that the workers reported
for work on 30 November 2010 and that they
were locked out. Its argument is that the lock-out “constituted
an automatically
unfair dismissal”.
[7]
However, it is common cause that the
abbatoir held a disciplinary hearing on 30 November and dismissed the
bulk of the workers on
1 December 2010. The union says that this was
a “formal dismissal” but that, in fact, the abbatoir had
already dismissed
the workers on 30 November and that that was a
“lock-out dismissal” that is deemed automatically unfair
in terms of
s 187(1)(c).
[8]
The union referred a dispute to the CCMA on
17 December 2010. Because of defective service it referred a fresh
dispute on 22 December.
It did so on behalf of all the applicants in
this matter.
[9]
On 22 December the abbatoir held a further
disciplinary hearing in respect of the nine employees who it says
have no
locus standi
in this matter. It is common cause that those nine workers attended
the hearing and that they were issued with notices of dismissal
on 23
December. But Ms
De Vos
argued that that is not the dispute before this court; what is
ultimately for this court to decide, is whether the alleged dismissal
on 30 November was automatically unfair.
[10]
The dispute that the union referred to the
CCMA on 22 December was set down for conciliation under case number
WECT 18154-10 on
15 February 2011. Sadly – and in a manner
indicative of the unhealthy labour relations between the parties –
neither
attended. Obviously no real attempt at conciliation could
take place. Nevertheless, the commissioner issued a certificate on
that
day indicating that the dispute (under case number WECT
18154-10) remained unresolved and that it should be referred to this
court
for adjudication. That dispute is an alleged automatically
unfair dismissal and the union claims that it arose on 30 November
2010.
[11]
Following the dismissal – to which
the union refers as a “formal dismissal” – of its
nine members on 23
December, the union referred a further two
disputes to the CCMA on 4 January 2011 under case numbers WECT 122-11
and WECT 129-11.
In these referrals it indicated that the dispute
arose on 23 December in respect of those nine members. Ms
de
Vos
says it did so
ex
abundante cautela
– in fact, it
intended to rely on the initial dispute referral under case number
WECT 18154-10 referring to the lock-out
of 30 November. In any event,
the union withdrew referrals WECT 122-11 and WECT 129-11. It does not
appear that those referrals
– in respect of the dismissal of
the 9 workers on 23 December – have ever been conciliated.
Locus
standi
[12]
This court has no jurisdiction to entertain
a dispute that has not been conciliated. And if the dispute that the
nine workers intend
this court to adjudicate has not been
conciliated, they would not have
locus
standi
either.
[13]
Mr
Loots
referred in this regard to a recent judgment of this court involving
the same trade union.
[2]
In that
case, the court referred to the judgment of the LAC in
Intervalve
(Pty) Ltd v NUMSA
[3]
where Waglay JP noted that, absent a referral of a dispute to
conciliation, the Labour Court has no jurisdiction.
[14]
But, having debated the question of the
union’s cause of action with Ms
De
Vos
, the case before me cannot be
equated with the one in
Steytler
Boerdery.
In that case, the union’s
counsel conceded that it had referred a dispute to the CCMA alleging
that its members had been
dismissed on 8 January 2014; but in fact,
they were only dismissed on 21 January 2013 after a disciplinary
hearing. In fact, the
union conveyed to its members that they had not
been dismissed on 8 January. Yet that was the dispute that was
referred to conciliation.
In those circumstances, the actual dispute
had not been conciliated and the court did not, therefore, have
jurisdiction.
[15]
In the case before me, Ms
De
Vos
nailed the union’s colours to
the mast of a termination lockout on 30 November 2010. She accepted
that the nine workers in
question would not have
locus
standi
in respect of a dispute
concerning their dismissal on 23 December, as the dispute that was
conciliated and subsequently referred
to this court for adjudication
is a dispute in respect of the events of 30 November 2010. That
dispute was referred to conciliation
on 22 December 2010, i.e. before
the dismissal of 23 December 2010. Ms
De
Vos
argued that what she termed the
“formal dismissals” of 1 December and 23 December were a
sham; what the union alleges,
is that its members were dismissed on
30 November. That is the dispute that was conciliated on 15 February
2011 and that is the
dispute that now serves before this court. As Ms
De Vos
and
Ms
Van Huyssteen
state in their heads of argument:
“
[T]he
dispute was in respect of all 42 workers who had been locked out, and
whose lockout was contended to constitute an automatically
unfair
dismissal as contemplated in section 187(1)(c) of the Labour
Relations Act.
That
unfair dismissal of the workers (i.e. the 42
locked out employees) was referred to the CCMA by the filing of LRA
7- 11 form on 17
December 2010 and again on 22 December 2010 under
CCMA case number 18154–10. The dispute is again there described
as having
arisen on 30 November 2010, which is the date of the
lockout of the 42 employees.
…
There
was indeed a dispute between the 42 workers and the [abattoir] : the
workers alleged that they had been locked out, and that
the lockout
constituted an automatically unfair dismissal.
That
dispute was referred to conciliation.”
[16]
The union’s counsel made it very
clear in debating the matter with the court that the union was
relying for its cause of action
on the “lockout dismissal”
of 30 November. The union described it as follows in the referral of
22 December, stating
that the dispute arose on 30 November:
“
Employer
dismissed employees to compel them to agree to the employer’s
demand, which demand is a dispute of interest concerning
working
hours”.
[17]
Mr
Loots
argued that, in fact, none of the applicants was dismissed on that
date. Most of them were dismissed on 1 December and the nine
remaining employees on 23 December. But the union does not accept
that. Whether the union has a good claim, and if it will be able
to
show on the evidence that its members were indeed dismissed on 30
November, is not for this court to decide at this stage. That
is what
they claim. And if that is their claim, this court has jurisdiction
to hear that claim and all the applicants – including
the nine
who, according to the abattoir, were only dismissed on 23 December –
have
locus standi
before the court.
[18]
As
Nugent JA pointed out in
Makhanya
v University of Zululand
[4]
:
“
When
the claimant says that the claim arises from the infringement of the
common law right to enforce a contract, then that is the
claim, as a
fact, and the court must deal with it accordingly. When a claimant
says that the claim is to enforce a right that is
created by the LRA,
then that is the claim that the court has before it, as a fact. When
he or she says that the claim is to enforce
a right derived from the
Constitution, then, as a fact, that is the claim. That the claim
might be a bad claim is beside the point.”
[19]
In the case before me, the applicants –
including the nine workers who, according to the abattoir, were
dismissed on 23 December
– base their claim on an automatically
unfair dismissal that they say took place on 30 November 2010. That
the claim might
be a bad claim and might not pass muster under
section 187(1)(c) of the LRA is beside the point. That claim can only
be decided
once all the evidence is in and once the parties have
placed their arguments before the court. It does not deprive the nine
workers
from their
locus standi
at this stage.
Inspection
in loco
[20]
The abattoir is of the view that an
inspection
in loco
will be useful in order for the court to see for itself how its
production lines work and what it output capacity is. It may also
serve to shorten proceedings if lengthy evidence in this regard need
not be led. The union disagrees.
[21]
A
decision on whether an inspection
in
loco
should be held is a matter for the discretion of the court. The
discretion must be exercised judicially.
[5]
[22]
In my view, it will be useful for the court
to observe the functioning of the abattoir first-hand. It may also
serve to shorten
proceedings. There is a large number of applicants,
most of whom live in Robertson. It will save costs for them and for
the abattoir’s
witnesses if an inspection
in
loco
could be held on the first day of
trial before they travel to Cape Town for the hearing.
Length
of trial
[23]
That brings me to the ever unpredictable
question of the envisaged length of the trial. The parties could not
reach agreement at
the pre-trial stage. The abattoir says it is
likely to run for 20 days; the union says 10 days will be enough. It
is difficult
to predict who will eventually be proven correct, but
both parties intend calling a number of witnesses. I think it will be
safe
to set aside 15 days for the hearing. I will direct the
registrar to do so.
Costs
[24]
I have found in favour of the union on the
main question, that of the
locus standi
of nine of its members. That finding is based on its counsel’s
assurance that its claim is based on the alleged “lockout
dismissal” of 30 November 2010. It remains to be seen whether
that is a good claim; and indeed, if that consistently remains
the
union’s stance.
[25]
I
think it would be premature to make an order for costs at this stage,
keeping in mind the requirements of law and fairness.
[6]
The conduct of both parties before and during the trial; whether the
matter ought to have been referred to this court as an automatically
unfair dismissal, or whether it should have been referred to
arbitration; and the conduct of the parties in proceeding with or
defending the matter, are all issues that can only be assessed at the
end of the trial. Therefore, I think it prudent to order
that the
cost of this application should be costs in the cause of the trial.
Order
[26]
I therefore make the following order:
26.1
The nine applicants referred to in
paragraph 16 of the founding affidavit in this application do have
locus standi
in the main dispute under this case number.
26.2
The registrar is directed to set the matter
down for trial for 15 consecutive days.
26.3
The parties are directed to arrange an
inspection in loco at Robertson Abattoir commencing at 10:00 on the
first day of trial.
26.4
The costs of this application are to be
costs in the cause of the trial.
_______________________
Anton Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT
(Robertson Abbatoir):
Hanri Loots
(with
him Lourens Ackermann)
Instructed
by
Du Bois, De Vries & Kroukam, Robertson..
RESPONDENT (CSAAWU):
Anna-Marie de Vos SC
(with
her Elsa van Huyssteen)
Instructed
by
SERI Law Clinic, Braamfontein..
[1]
Labour Relations Act 66 of 1995
.
[2]
Sambo &
others v Steytler Boerdery
[2014] ZALCJHB 202. (Although the citation is given as ZALCJHB, it
was heard in Cape Town under casse number C 592/13 on 2 June
2014.
Judgment was handed down the following day).
[3]
[2014] ZALAC 10.
[4]
2010 (1) SA 62
(SCA) para 71.
[5]
Zeffert et al
Law
of Evidence
(2003) at 710 and authorities there cited.
[6]
LRA
s 162.