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[2015] ZALCJHB 330
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SATAWU obo Baloyi and Others v Menzies Aviation (South African) (Pty) Ltd (JS730/15) [2015] ZALCJHB 330 (25 September 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
Number: JS 730/15
In
the matter between:
SATAWU
obo T BALOYI & 220
OTHERS
Applicant
and
MENZIES
AVIATION (SOUTH AFRICA) (PTY)
LTD
Respondent
Date
heard: 24 April 2014
Delivered:
25 September 2015
JUDGMENT
RABKIN-NAICKER
J
[1]
This matter concerns certain points in
limine
raised by the respondent in the pre- trial minute filed by the
parties. The action was referred to this court in relation to the
alleged unfair dismissal of the individual applicants in terms of
section 189A of the LRA.
FIRST POINT IN
LIMINE
[2] The respondent
alleges that the court lacks the requisite jurisdiction to entertain
the matter in that dispute was not referred
to the CCMA before
referral to this court. In consequence no certificate of outcome of
conciliation has been issued by the CCMA,
nor has a period of 30 days
expired since the referral of the dispute to the CCMA.
[3]
The dismissals followed a facilitation in terms of section 189A(7) of
the LRA which provides as follows:
“
(7)
If a facilitator is appointed in terms of subsection (3) or (4), and
60 days have elapsed from the date on
which notice was given in terms
of section 189 (3)-
(a)
the employer may give notice to terminate the contracts of employment
in accordance with section 37
(1) of the Basic Conditions of
Employment Act; and
(b)
a registered trade union or the employees who have received notice of
termination may either-
(i)
give notice of a strike in terms of section 64 (1) (b) or (d); or
(ii)
refer a dispute concerning whether there is a fair reason for the
dismissal to the Labour Court
in terms of section 191 (11)”
[4] The question as to
whether section 189A(7) requires a referral to conciliation before
the dispute is referred to this court
has now been dealt by the LAC
in
Edcon v Steenkamp & others
(2015) 36 ILJ 1469
(LAC)
in which it is stated as follows:
“
[13]
Section 189A(7) of the LRA deals with the situation where a
facilitator has been appointed. It reads:
'(7) If
a facilitator is appointed in terms of subsection (3) or (4), and 60
days have elapsed from the date on
which notice was given in terms of
section 189(3) —
(a)
the employer may give notice to terminate the contracts of
employment I in accordance with
section 37(1) of the
Basic Conditions of Employment Act; and
(b)
a registered trade union or the employees who have received notice of
termination may either —
(i)
give notice of a strike in terms of section 64(1)(b) or (d); or
(ii)
refer a dispute concerning whether there is a fair reason for the
dismissal to the Labour Court
in terms of section 191(11).'
[14] It
is immediately evident from this provision that where facilitation
has been attempted and 60 days have
lapsed since the employer issued
a s 189(3) notice inviting consultation and disclosing relevant
information, the employer may
give notice to terminate the contracts
of employment of the employees selected by it for retrenchment in
accordance with agreed
or fair selection criteria as required by s
189(7) of the LRA. Section 37(1) of the Basic Conditions of
Employment Act (the BCEA)
stipulates notice periods for the
termination of employment which are variable depending on the
employee's period of service.
[15]
The notice given by the employer in terms of s 189A(7)(a) of the LRA,
after the 60-day period allowed for
facilitation has elapsed,
triggers the right of the employees or their representatives to
resort to either strike action in terms
of s 189A(7)(b)(i) of the LRA
or litigation in terms of s 189A(7)(b)(ii) of the LRA. There are two
notable features of the right
to strike conferred by s 189A(7)(b)(i)
of the LRA. The first is that the dispute does not have to be
referred to a bargaining council
or the CCMA for conciliation over a
30-day cooling-off period, as is normally required in terms of s 64
of the LRA. Where there
has been a facilitation process, it would be
unnecessary duplication to require an additional 30-day conciliation
process
at the end of the 60-day period allowed for facilitation —
bearing in mind that the parties may agree to extend the facilitation
period in terms of s 189A(2)(c) of the LRA. Likewise, the envisioned
referral to the Labour Court in terms of s 191(11) of the
LRA does
not require a prior referral to conciliation.”
[5]
In view of the above, the first point in
limine
raised by the respondent must fail.
SECOND POINT IN
LIMINE
[6] The second point
raised by the respondent is that section 189A(13) of the LRA renders
it incumbent on a party seeking to challenge
procedural fairness in
respect of a retrenchment process to pursue such dispute by way of an
application within the time limit
set in section 189A(17)(a). The
applicant has sought to mount a procedural challenge in relation to
procedural fairness in the
action.
[7] In respect of this
issue, the following paragraphs of the
Edcon
LAC
judgment are apposite:
“
[19]
Having carved out distinct alternative procedures for the resolution
of disputes about the substantive fairness of large-scale
retrenchments, s 189A of the LRA additionally creates a
distinct procedure for disputes about procedural fairness in
dismissals
falling within the ambit of the section. Section 189A(18)
of the LRA provides that the Labour Court may not adjudicate a
dispute
about the procedural fairness of an operational requirements
dismissal referred to it in I terms of s 191(5)(b)(ii)
of
the LRA. Consulting parties who allege procedural unfairness in the
consultation process are now required to approach the Labour
Court by
way of an application made in terms of s 189A(13) of the LRA within
30 days after the employer has given notice to terminate
or, if
notice of termination is not given, within 30 days of the date of
dismissal. In an application made in terms of s 189A(13)
of the LRA,
the consulting party may seek an order, if need be on an urgent
basis —
(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; or
(d)
awarding compensation, if an order in terms of paras (a) to (c) is
not appropriate.
[20] The object of s
189A(13) of the LRA, as appears from a purposive interpretation of s
189A read as a whole and in context, is
to separate out procedural
issues and to provide a means whereby the consultation and
facilitation processes are not undermined
by procedural flaws. It
offers a useful expedient to the parties to seek the assistance of
the court, acting as the guardian of
the process, to ensure that the
issues are adequately identified, considered and ventilated in the
process of consultation or facilitation
before it ends. It thus
ensures that only disputes about the fairness of substantive reasons
and outcomes will generally be subjected
to resolution by means of
collective action or in a trial involving the hearing of oral
evidence.”
[8] The second point in
limine
is thus upheld to the extent that the applicants may
only challenge the substantive fairness of their dismissals at trial.
The
fact that they sought to include such a claim does not preclude
them from pursuing the substantive fairness claim as the respondent
appears to suggest in its submissions.
THIRD POINT IN
LIMINE
[9] The third point in
limine
raised is that Menzies Aviation was not the employer of
the employees at any point; it being the case that Menzies Aviation
(South
Africa) (Cleaning) (Pty) Ltd (“Menzies Cleaning”),
a separate legal entity, was their employer. This point is closely
related to the first point in
limine
herein i.e. that the
matter should have been referred to the CCMA, and the ‘correct
‘employer’ cited in such
referral.
[10] I have already
determined that the first point in
limine
should not be
upheld. In addition it is evident from the application to join
“Menzies Cleaning” to the action proceedings,
that the
issue of the joinder of a second respondent should properly be dealt
with at trial.
[11] In the result, I
make the following order:
1.
The first and third points in
limine
are dismissed;
2.
The applicants are limited to a claim that their dismissals are
substantively unfair
in the main action.
________________
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances
:
For the Applicants:
Adv J.S. Mphahlani
Instructed by:
M.M. Baloyi Attorneys
For Respondent:
Adv Riaz Itzkin
Instructed by:
Hogan Lovells (South Africa)