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[2016] ZALCD 14
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Shozi and Others v Petcon Investments CC t/a Petcon Outsourcing Solutions and Another (D935/15) [2016] ZALCD 14; [2017] 1 BLLR 54 (LC) (29 June 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Not Reportable
Case
no: D935/15
In
the matter between:
THULISANI
MBONGENI SHOZI & 204
OTHERS
Applicants
and
PETCON
INVESTMENTS CC
t/a
PETCON OUTSOURCING SOLUTIONS
First Respondent
UNILEVER
SOUTH AFRICA (PTY)
LTD
Second Respondent
Heard:
4 March 2016
Delivered:
29 June 2016
Summary:
Once and for all rule - changing a cause of action mid-stream
JUDGMENT
WHITCHER
J
[1]
On 4 March 2016, I upheld the second respondent’s preliminary
point that it was not the employer of the applicants.
[2]
This court must decide whether any of four preliminary points raised
by the first respondent (Petcon) serves as a bar to the
applicants
pursuing an action concerning breach of contract in accordance with
Section 77
(3) of the
Basic Conditions of Employment Act of 1997
.
[3]
The background is that Petcon provided labour to the second
respondent (‘Unilever’) in terms of a temporary
employment
service contract.
[4]
In or about September 2012, Unilever informed Petcon that it was not
prepared to pay the prevailing hourly rate for the services
of the
applicants. It offered a reduced rate or termination of the TES
contract. In due course, the applicants’ salaries
were paid at
the reduced hourly rate.
[5]
It is not important to decide whether the applicants agreed to the
new rate or not. Nor is the date on which the applicants
referred a mutual interest dispute to the CCMA seeking a restoration
of their old pay rates important for present purposes.
Suffice
it to say that, in 17 July 2013, the applicants were still so
dissatisfied with the reduction in their pay and this led
to the
referral of a dispute concerning a “matter of interest”
to the CCMA and industrial action. There is also an
allegation that
the respondents effected a lock out.
[6]
On 23 July 2013, Unilever cancelled its TES contract with Petcon. On
24 July 2013, in accordance with its understanding of the
contracts
of employment it had with the applicants, Petcon then purported to
terminate the applicants’ employment contracts.
This gave
rise to a dismissal dispute that was referred to the CCMA. On review,
the court found,
inter
alia,
that the dismissal dispute should have been referred to the Labour
Court for adjudication. An appeal has been lodged against the
review
judgment.
[7]
The applicants in the present matter seek relief that predates their
dismissal. This is to enforce the payment of the higher
wage rates in
place before October 2012, up until the date of their dismissal. To
do so, they seek to cast the reduction in wages
not as an unfair
labour practice but as a breach of their contract. They seek to
enforce payment of the higher wage rates against
Pecton.
Points
in limine
[8]
Petcon raises the following points
in limine
. They argue that
the real dispute is an unfair labour practice as contemplated in
Section 186
(2) of the LRA and, as such, this court lacks
jurisdiction to adjudicate it. They argue further that the
applicants’ claim
should have been raised at the time of
pursuing their unfair dismissal dispute in terms of the ‘once
and for all rule’.
Analysis
of argument
[9]
The pleaded dispute is plainly one that falls within the jurisdiction
of the Labour Court by way of
section 77
(3) of the BCEA
[1]
.
As such, Petcon’s first point
in
limine
must
fail. In making this finding, I follow the position adopted by Waglay
JP, on jurisdiction where he states:
“
While
I appreciate that the suite of statutes that make up our principal
labour laws must as far as possible be read harmoniously,
it is not
open to a court to substitute one cause of action for another simply
because it believes that a particular formulation
is more
appropriate”
[2]
.
[10]
Indeed, a litigant is entitled to frame a dispute in terms of the
statutory provision he thinks will best aid him. His
case will
consequently stand or fall on the basis of how the proven facts meet
the legal provision he has invoked. If there is
any conflict of laws,
the question will be displaced to whether the legal provisions he has
invoked prevail or not.
[11]
This strikes me as being in accordance with the view of the
Constitutional Court’s in
Gcaba
v Minister of Safety and Security.
[3]
Here,
jurisdiction was decided based on whether the court had jurisdiction
over the pleaded claim, and not whether it had
jurisdiction over some
other claim that were not pleaded but could possibly have arisen from
the same facts.
[12]
I am also not persuaded that the once-and-for-all rule applies
in
casu
.
It is certainly undesirable that disputes are decided in a piecemeal
fashion. The emergence of a rule that bars litigants from
claiming
‘damages’ in separate actions that arise from the same
cause of action is therefore to be welcomed
[4]
.
However, it strikes me that this rule can only be fairly and sensibly
applied if the same court or tribunal had jurisdiction
to award the
separate instances of relief sought. I have already found that the
applicants were at liberty to plead their claim
as a contract
dispute. Since the CCMA, which determined the dismissal
dispute, did not enjoy the jurisdiction to entertain
a contract law
dispute in terms of
section 77
(3) of the BCEA, the applicants could
hardly be expected to have brought this claim ‘once and for
all’.
[13]
During argument, a further issue arose. This was whether the
applicants are barred from proceeding with their contractual claim
on
the basis that they seemingly first elected to deal with the issue as
a matter of mutual interest. A rule against changing a
cause of
action mid-stream is closely related to the ‘once and for all’
rule in terms of which a party who elects to
pursue a matter in a
particular manner is held to that election and is confined to the
fruits his chosen route may yield.
[14]
In
Chirwa
v Transnet Ltd & others
[5]
,
the Constitutional Court noted that the appellant had commenced her
action in the CCMA by referring the matter for conciliation
under the
LRA, but had then switched to the High Court with a claim under the
PAJA. The Constitutional Court held the matter could
have been
disposed of on that narrow basis. The court stated:
“
Ordinarily,
and as a matter of judicial policy, even if the High Court had
concurrent jurisdiction with the Labour Court in this
matter, it
should be impermissible for a party to initiate the process in the
CCMA alleging one cause of action, namely, unfair
labour practice,
and halfway through that process, allege another cause of action and
initiate proceedings in the High Court. It
seems to me that where two
courts have concurrent jurisdiction, and a party initiates
proceedings in one system alleging a particular
cause of action, the
party is bound to complete the process initiated under the system
that she or he has elected. Concurrent jurisdiction
means that a
party must make an election before initiating proceedings. A party
should not be allowed to change his or her cause
of action mid-stream
and then switch from one court system to another”.
[15]
However, according to the Supreme Court of Appeal in
Makhanya
v University of Zululand
[6]
,
the fact that an employee referred a dispute under the LRA was not
considered a bar to the institution of an action for breach
of
contract in a civil court even if the matter had been disposed of by
the relevant labour forum. Grogan states that it follows
from this
ruling that employees may switch from the labour forums to the civil
court before the labour process is complete, and
may also seek relief
in the High Court which they have failed to obtain in the labour
forums. However, he writes, if the ‘once
and for all’
rule, which is designed to prevent a multiplicity of actions and
bring finality to litigation, has any bearing
in this context, there
must be some limit to the number of times employees may try their
luck in the respective forums.
[7]
[16]
In this case, the applicants admit commencing legal action in respect
of the reduction of their wages in the CCMA as a matter
of mutual
interest. This ended up as a concerted refusal to work in which they
pressed for the unilateral variation of the wages
to be reversed.
This unfortunately ended up in their dismissal.
[17]
Not to add to the uncertainty I have identified above, it is tempting
to seek refuge in the highest-ranking case on the matter,
Chirwa
.
It is not only rank but, with respect, a fine appreciation of public
policy that distinguishes
Chirwa
above
Makhanya
on the
issue at hand. In my opinion, it should be impermissible for a party
to initiate a process in the CCMA alleging one cause
of action and
halfway through that process, allege another cause of action and
initiate proceedings in the Labour Court.
Why should the
applicants not be held to their initial cause of action?
[18]
But for the fact that the applicants were dismissed in the midst of
their mutual interest dispute, I would have found that
their changing
tack is impermissible. However, a countervailing policy issue arises
in cases where a dismissal interrupted the
pursuit of a matter of
mutual interest. The case at hand presents us with the one
exception where allowing a party to reframe
their cause of action
mid-steam would be in the interests of fairness. This is
because one cannot meaningfully engage in
industrial power-play if
already dismissed.
[19]
Whereas a party seeking two different forums to adjudicate a
factually identical case should, for policy reasons, be prevented
from doing so, this case is different. Strictly in the
circumstances of this case, I find that it was permissible for a
party seeking to resolve a dispute ultimately by means of power, to
change tack and seek adjudication of this dispute when the option
of
persisting with a mutual interest dispute disappeared. This exception
is necessary to prevent dismissal being used cynically
to avoid
dealing with demands to reverse a unilateral variation of terms and
conditions, especially when a TES is involved.
[20]
In the circumstances then, I find that there is nothing barring the
action proceeding against Petcon, all its points
in limine
having no merit.
Order
[21]
The first respondent’s points
in
limine
are dismissed with costs.
________________________________
Whitcher J
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the applicants: Adv NSV Mfeka, instructed by Maseko Mbatha and
Associates
For
the first respondent: Snyman Attorneys
[1]
"77. The Labour Court has
concurrent jurisdiction with the Civil Courts to hear and determine
any matter concerning a contract
of employment, irrespective of
whether any basic condition of employment constitutes a term of that
contract"
[2]
Ekurhuleni Metropolitan Municipality v SAMWU
[2015] 1 BLLR 34 (LAC)
[3]
[2009] 12 BLLR 1145 (CC)
[4]
Sgt Pepper’s Knitwear v SACTWU
(2012) 33 ILJ at 2184 - 2185
[5]
(2008) 29 ILJ 73 (CC).
[6]
(2009) 30 ILJ 1539 (SCA).
[7]
John Grogan
Labour
Litigation and Dispute Resolution
(1
st
ed 2010, Juta) 96.