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[2015] ZALCJHB 180
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Rahn v Cheil South Africa (Pty) Ltd (JS752/2013) [2015] ZALCJHB 180; (2015) 36 ILJ 2657 (LC) (12 June 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Of
interest to other judges
Case
no: JS 752/2013
In
the matter between:
Nicole Jacqueline
RAHN
Applicant
and
CHEIL SOUTH AFRICA
(PTY) LTD
Respondent
Heard
:
5 June 2015
Delivered
:
12 June 2015
Summary:
Special pleas – jurisdiction – LRA s
187(1)(d) – protected disclosure. Court having jurisdiction to
hear alternative
claim of unfair dismissal in terms of amended s
158(2)(b).
JUDGMENT
STEENKAMP
J
Introduction
[1]
The
applicant, Ms Nicole Rahn, was dismissed by the respondent. She says
that she was dismissed because she made a protected disclosure
and
exercised her rights in terms of the LRA
[1]
;
and that, therefore, it was an automatically unfair dismissal in
terms of s 187(1)(d) and s 187(1)(h) of that Act. In the alternative,
she claims that the dismissal was in any event unfair.
[2]
The matter has not yet gone to trial. The
respondent raised three special pleas
in
limine
challenging the court’s
jurisdiction on the main and alternative claims.
Background
facts
[3]
The applicant lodged a grievance concerning
her working conditions. It was unresolved. She referred an unfair
labour practice dispute
to the CCMA. During conciliation she referred
to the respondent’s “Annual Review and Incentive
Proposal”. On
her return to work, the respondent demanded to
know how she got hold of the document. The respondent seized her
laptop. She was
called to a disciplinary hearing and found to have
committed misconduct by disclosing confidential information in the
form of the
report at the CCMA. She was dismissed. She referred the
current dispute to the CCMA and, when conciliation failed, to this
Court.
Her referral to arbitration to determine an unfair dismissal
dispute was dismissed for lack of jurisdiction as that dispute is
before this Court in the form of her alternative claim and thus the
arbitrator ruled that it was
lis
pendens
.
Evaluation
/ Analysis
[4]
The respondent raises three special pleas:
4.1
Lack of jurisdiction on the alternative
claim.
4.2
Jurisdiction with respect to the main claim
under s 187(1)(d) of the LRA – lodging a grievance.
4.3
Jurisdiction / lack of cause of action
under s 187(1)(h) – reliance on document produced at
conciliation.
First
special plea: Jurisdiction over alternative claim
[5]
The applicant’s main claim is that
her dismissal was automatically unfair in terms of s 187(1)(d) and s
187(1)(h) of the LRA.
This Court has jurisdiction to hear that claim.
But she submits in the alternative, should this Court not uphold her
claim of unfair
dismissal, the Court should in any event find that
her dismissal was unfair.
[6]
The
employer says that the applicant was dismissed for misconduct.
Ordinarily, a dispute of that nature would be referred to the
CCMA or
a bargaining council for arbitration.
[2]
That is what the applicant did in this case; but the respondent
successfully raised a preliminary point of
lis
pendens
in that forum. The applicant is left in a quandary: Should she be
unsuccessful in her main claim, would she be non-suited to pursue
her
unfair dismissal claim in the ordinary course?
[7]
This
type of situation is foreshadowed in s 158(2)(b) of the LRA. It
provides:
[3]
“
(2)
If at any stage after the dispute has been referred to the Labour
Court, it becomes apparent that the dispute ought to have
been
referred to arbitration, the Court may –
stay
the proceedings and refer the dispute to arbitration; or
if
it is expedient to do so, continue with the proceedings, in which
case the Court may only make any order that a commissioner
or
arbitrator would have been entitled to make: Provided that in
relation to the question of costs, the provisions of s 162(2)(a)
are
applicable.”
[8]
In
this case, should the employee be unsuccessful with her claim of
automatically unfair dismissal, it would certainly be “expedient”
for the court to consider her alternative claim. The special plea was
premised on the wording of the subsection prior to the recent
amendment. In terms of the previous wording, the Court could only
continue with the proceedings “with the consent of the
parties”. Those words were removed by the Amendment Act that
came into operation on 1 January 2015.
[4]
Hence the employer’s consent is no longer needed.
[9]
After the amendment, the fact that Cheil SA
has not consented to the Court hearing the unfair dismissal dispute
becomes irrelevant.
Should the Court at that stage, and if the
employee is unsuccessful with her main claim, consider it expedient
to hear the alternative
claim, it will have jurisdiction to do so.
[10]
The first special plea is dismissed.
Second
special plea: jurisdiction with respect to the main claim under s
187(1)(d) [lodging of grievance]
[11]
The applicant contends in her statement of
claim that her dismissal was automatically unfair as envisaged in
section 187(1)(d) of
the LRA as she was dismissed by virtue of having
exercised her rights conferred by the Act or participating in any
proceedings
in terms of the Act. The basis for that claim is that she
filed a grievance and enforced her rights in terms of the LRA.
[12]
It
has been held in
De
Klerk v Cape Union Mart International (Pty) Ltd
[5]
that this court does have jurisdiction to hear such a claim. In that
case, the employer’s exception was dismissed.
[13]
The respondent in this case argues that,
for the employee to sustain this cause of action, it is necessary for
her to plead sufficient
facts to establish a causal connection
between the lodging of the grievance and the dismissal.
[14]
This is a matter for evidence which cannot
be determined at this juncture. The second special plea is dismissed.
Third
special plea: jurisdiction/lack of cause of action under ss 187(1)(d)
and (h)
[15]
The respondent contends that the
controversy between the parties arose when the applicant used its
2012 Annual Review and Incentive
Proposal at the CCMA conciliation
proceedings. It says that the document is confidential and that the
employee did not have permission
to use it.
[16]
The employee contends that she was
dismissed for having made a protected disclosure i.e. by disclosing
the document at CCMA conciliation.
She says that her dismissal was
automatically unfair in terms of s 187(1)(h) of the LRA.
[17]
The respondent argues that, as a matter of
law, the applicant has not established that she was entitled to be in
possession of the
document or that she obtained it lawfully. Mr
Boda
argued that her use of the document at conciliation could not amount
to a protected disclosure nor was it lawful.
[18]
Whether
or not the disclosure was a protected one as defined in the Protected
Disclosures Act
[6]
is best
determined after hearing evidence at trial. Mr
Lennox
,
for the applicant, suggested that the disclosure of the document at
conciliation was, quite simply, shielded by rule 16 of the
CCMA
rules. I agree. That rule reads as follows:
“
1.
Conciliation proceedings are private and confidential and are
conducted on a without prejudice basis. No person may refer to
anything said at conciliation proceedings during any subsequent
proceedings, unless the parties agree in writing.
2.
No person, including a commissioner, may be called as a witness
during any subsequent proceedings in the Commission or in any
court
to give evidence about what transpired during conciliation.”
[19]
The intention of the rule was confirmed in
Hofmeyr
v Network Healthcare Holdings (Pty) Ltd.
[7]
And
in
Van
Metzinger v Conservation Corporation
[8]
the
court held that rule 16 does not permit reference to any discussions
held during conciliation in subsequent proceedings and
evidence
relating to such discussions must therefore be rejected. As Van
Niekerk J pointed out in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA:
[9]
“
The
dispute resolution system established by the LRA places a premium on
conciliation.”
[20]
Part
of this premium must be that the parties at conciliation can speak
freely and refer to documents without a residual fear that
they could
be disciplined as a result thereof. As the learned authors note in
Labour
Relations Law: A Comprehensive Guide
[10]
,
the term ‘said’ in CCMA rule 16 probably includes
documents disclosed during conciliation.
[21]
The third special plea is dismissed.
Cots
[22]
None of the respondent’s special
pleas has succeeded. Both parties asked for costs. I see no reason in
law or fairness to
interfere.
Order
The
special pleas raised by the respondent are dismissed with costs.
_______________________
Anton J Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
M
A Lennox
Instructed
by Stewart-Garden attorneys.
RESPONDENT:
F
A Boda (with him S Tilly)
Instructed
by Kramer Villion Norris.
[1]
Labour Relations Act 66 of 1995
.
[2]
LRA
s 191(5)(a)(i).
[3]
The subsection has been substituted by s 26(c) of the Labour
Relations Amendment Act 6 of 2014. As the learned authors in Du
Toit
et al,
Labour
Relations Law: a Comprehensive Guide
(6
ed, 2015 LexisNexis p 189) point out, such an order by the
Labour Court is open only to appeal and not to review. The
contrary
view would be untenable.
[4]
Proclamation R 87, 2014 (
Government
Gazette
No
38317, 19 December 2014).
[5]
(2012) 33
ILJ
2887 (LC) paras [29] – [38].
[6]
Act 26 of 2000.
[7]
[2004] 3 BLLR 232
(LC) paras [5] – [6].
[8]
(2013)
34
ILJ
1309 (LC). See also
Langa
v Skyline Logistics
(2014)
35
ILJ
1584 (LC) para [39].
[9]
[2009] 12 BLLR 1214
(LC) para [11].
[10]
[10]
Du Toit et al,
Labour
Relations Law: A Comprehensive Guide
(6ed 2015 LexisNexis) p 142 fn 175.