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[2015] ZALCJHB 128
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National Union of Metal Workers and Others v Bevcan (JS837/11) [2015] ZALCJHB 128 (16 April 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case number: JS837/11
DATE: 16 APRIL 2015
Not Reportable
In the matter between:
NATIONAL UNION OF METAL
WORKERS
.............................................................
First
Applicant
MMUTLE & SEVEN
OTHERS
..........................................................
Second
and Further Applicants
And
BEVCAN
.................................................................................................................................
Respondent
Heard: 19 December 2014
Delivered: 16 April 2015
JUDGMENT
Van der Merwe AJ
[1] This is an application brought in
terms of Rule 35(13) of the High Court Rules dealing with discovery
of documents, in terms
of which the Applicants seek an order for
certain documentation alternatively information to be made available
to them. The nature
of the information required relates to the
identity, the pay rate, occupation and date of employment of certain
employees in the
Respondent’s employ at the time of the
retrenchment of the Second to further Applicants in this matter.
[2] It is common cause that the
pleadings in the case are closed, the Applicants having delivered
their Statement of Claim on 10
October 2011 and the Respondent
delivering its Statement of Defence on 25 October 2011.
[3] The Respondent opposes the relief
on a number of grounds. These include what appears to be an
allegation that the Applicants
require the information in order to
finalise the Pre-trial Minute and that the Applicants are not
entitled to this information
for that purpose as demanding discovery
before the pre-trial would be premature. I do not find any substance
in this defence. The
Pre-trial proceedings are incidental and
finalisation of the Pre-trial Minute does not ultimately represent
the reason for requiring
the information sought by the Applicants.
The Applicants make no such claim in the founding papers before
Court; they merely mention
that the Applicants' representatives,
whilst preparing for a pre-trial, realised that the Respondent had
not provided the information
sought. Under ideal circumstances, the
information would have been available to the Applicants and as such
could indeed be incorporated
in the pre-trial discussions and
ultimately the Pre-trial Minute. As I mentioned, this issue is
however peripheral.
[4] The Respondent’s second
defence amounts to an attack on the Applicants’ reliance on
Section 189(3) of the Labour
Relations Act (LRA) in substantiation of
the relief claimed. This criticism seems to be directed at the
Applicants' submissions
made in argument relating to the information
to be disclosed by the employer in terms of Section 189(3) of the LRA
to any affected
employees or their representatives. The criticism
appears misplaced and overly technical at this stage of the
proceedings.
[5] The principles applicable to
discovery are dealt with under Rule 35 of the Uniform Rules.
Generally speaking, discovery is not
allowed before the close of
pleadings except with leave of the Court and a party may only be
called upon to discover documents
relating to any matter in question
in the proceedings. The phrase “relating to any matter in
question” is given a wide
interpretation and includes the
requirement of relevance. (See Harms, Civil Procedure in the Superior
Courts, at B-242 and the
authorities referred to there).
[6] Matters in question are determined
from the pleadings. In determining therefore whether the Applicants
are entitled to the relief
sought, consideration must be given to the
pleadings in the case rather than technical issues such as the exact
stage of the proceedings.
Ultimately, the objective of this
application is to advance the Applicants' case to trial; whether or
not the Pre-trial Minute
had been finalised and signed is irrelevant.
The issues in dispute are made clear by the pleadings. Moreover, in
unfair dismissal
disputes, once dismissal is accepted, the employer
carries the onus to prove that the dismissal had been fair.
[7] When regard is had to the pleadings
in this case and specifically the Statement of Case at paragraph 36,
the Second to further
Applicants were retrenched despite the
existence of a collective agreement which prevents bumping. The
Respondent’s response
hereto was that the Respondent did not
engage in bumping. (See paragraph 27 of the Statement of Defence).
[8] At paragraph 38, the Applicants
allege that: ‘Immediately after the retrenchments, the
apprentice can makers who had been
recently employed were moved into
the positions of the Second to Further Applicants’, to which
the Respondent replies at
paragraph 28: ‘It is admitted that
the apprentice can makers had already qualified. Some of them were
retained, albeit not
at the Respondent’s Rosslyn operation.
Their skills and qualifications set them apart from the Second to
Further Applicants’.
[9] At paragraph 46, the Applicants
allege that: ‘Only one of the Second to Further Applicants
worked on lines 1 and 3 and
they were retrenched despite a collective
agreement which contained a no-bumping clause.’ At paragraph
35.2, the Respondent
denies bumping of the Second to Further
Applicants.
[10] Finally, at paragraph 47 the
Applicants allege that: ‘The selection criteria used was unfair
and that a number of volunteers
for retrenchment were not permitted
to leave despite having lower qualification than the Second to
Further Applicants’. The
Respondent in turn provides a bare
denial to this allegation, at paragraph 36 of its Statement of
Defence.
[11] Considering the pleadings, it is
apparent that the identity and other information relating to the
remaining employees are indeed
relevant in the current proceedings.
The claim, in material respects, is premised on allegations of an
unfair selection criteria,
bumping under circumstances where bumping
is apparently disallowed in terms of a Collective Agreement, and
thirdly, on allegations
that the Respondent retained lower qualified
employees. I find that the information required is prima facie
relevant to the Applicants'
case. The Respondent's defence that this
is an inopportune time to order delivery of such information is
without merit.
[12] I am, however, mindful that the
Applicants should not be allowed to embark on a fishing expedition in
the conduct of their
case. (See: Immobili Retail Investments (Pty)
Ltd and Others v ABSA Bank (Pty) Ltd and Others
[2009] JOL 24158
(GNP))
[13] I do not consider, however, the
application to be a fishing expedition. I do not find any indication
of an indiscriminate,
speculative or overly hopeful quest for
information, probably irrelevant to the case. While it is true that,
as the pleadings currently
stand, the Applicants make no mention of
LIFO, even though it is referred to in their heads of argument, the
Applicants clearly
and succinctly state the basis of their claim as
well as the nature and extent of the information required to prove
those allegations.
The information required is clearly relevant to
selection criteria. In terms of section 189(7) of the LRA, the
employer must show
that it dismissed the employees according to a
selection criteria that was fair and objective.
[14] The Respondent has provided little
more than bare denials in relation to the allegations made. I find
the Respondent's submission
that the Applicants may subpoena the
documentation misplaced under the circumstances. Discovery remains
the preferred method of
obtaining evidence inter partes and the
Applicants need not resort to Rule 32 of the Uniform Rules in order
to address the matter
of evidence.
[15] The information requested in the
Rule 35 notice is limited to employees paid on a rate of pay as
opposed to employees paid
a monthly salary.
[16] As far as costs are concerned, I
consider that costs should fairly follow the result in the main
dispute.
[17] The following Order is therefore
made:
17.1. The Respondent is ordered to
comply with the Rule 35 notice of the Rules of the High Court dated
the 16th of April 2013, within
20 days from the date of this order.
17.2. The costs of this Application are
to be costs in the cause.
G Van der Merwe
Acting Judge of the Labour Court of
South Africa
Appearances:
For the Applicant: Mr David
Cartwright of David Cartwright Attorneys
For the Respondent: Advocate M Van
As
Instructed by: DLA Cliffe Dekker
Hofmeyr