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[2017] ZALCJHB 122
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Association of Mine Workers Construction Union and Others v Ngululu Bulk Carriers (Pty) Ltd (JS502/16) [2017] ZALCJHB 122 (30 March 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case
no: JS 502/16
In the matter between:
ASSOCIATION OF MINE WORKERS
CONSTRUCTION
UNION
First Applicant
THE MEMBERS AS PER ANNEXURE
“A”
Second to Further Applicants
and
NGULULU BULK CARRIERS (PTY)
LTD
Respondent
Heard:
26 August 2016
Delivered:
30 March 2017
JUDGMENT
MAHOSI AJ
[1]
The applicants have delivered a statement of case in respect of an
alleged unfair dismissal dispute in which it is contended,
inter
alia
,
that the dismissal of the second to further applicants (“the
individual applicants”) by the respondent was automatically
unfair in terms of section 187(1)(f) of the Labour Relations Act
[1]
(“LRA”); and in doing so, unfairly discriminated against
the individual applicants on the basis of their trade union
membership. In its statement of case, the applicants summarised the
legal issues as follows:
‘
6.6.1
whether the individual applicants’ dismissal was automatically
unfair in
terms of section 187(1) of
the LRA; alternatively
6.6.2
whether the individual applicants’ dismissal for participation
in the alleged unprotected strike
action was substantively
fair; alternatively
6.6.3
whether the individual applicants were unfairly dismissed in terms of
section 186(1)(d) of
the LRA; and
6.6.4
whether the individual applicants’ dismissal was procedurally
fair; and
6.6.5
if it is found that the individual applicants were guilty of the
misconduct
for which they were
dismissed, whether dismissal was an appropriate
sanction;
and
6.6.6
whether the Company consistently applied discipline.’
[2]
In its reply to the statement of case, the respondent has raised the
following preliminary grounds:
‘
No
referral in terms of section 187(1)(f)
1.
The first applicant
referred a dispute under case number NELRFBC 39260 to the Bargaining
Council for the Road Freight and Logistics Industry (“Bargaining
Council”) relating to a dismissal on account of unprotected
action. A certificate of non-resolution was issued on the 9
th
of March 2016.
2.
The respondent thereafter
referred an unfair dispute to the CCMA in terms of section
186(1)(d).
A certificate of non-resolution has been issued on the 4
th
of May 2016 under case number NELRFBC 40165;
3.
The present referral to Court relates to the Applicants’ claim
that the
dismissal is automatically unfair in terms of section
187(f)(1) on account of the union membership. However, no referral
was made
in terms of section 187(f)(1);
Forum
Shopping
4.
The applicant is forum shopping and it will be contended that the
applicants’
referral be dismissed;
Principle
of
Lis Pendens
5.
The respondent also contends that the principle of
lis pendens
is of application.
6.
The applicant has referred the dispute in terms of section 186(1)(d)
to the CCMA
under case number NEFLRBC 40165. The ruling and
certificate of outcome issued is the subject of review proceedings
under case number
JR 919/16;
Non-compliance
with Rule 6(1)(b) and (d)
7.
The Applicants have not provided full details of the applicants’
positions,
remuneration and commencement date. The allegations are
vague and unsubstantiated.’
[3] The applicants allegedly embarked
on an unprotected action on a number of occasions during January and
February 2016. On the
2
nd
of February 2016, the respondent
issued notices of dismissal to some 476 employees. On the same day,
Association of Mine Workers
Construction Union (AMCU) on behalf of
the individual applicants referred an unfair dismissal dispute to the
bargaining council
in terms of section 191(5)(b)(iii) of the LRA
(“the first unfair dismissal dispute”) under case number
NELRFBC 39360
alleging that the individual applicants were unfairly
dismissed for participation in an unprotected strike. The dispute was
conciliated
on the 9
th
of March 2016 and a certificate of
non-resolution was issued.
[4]
On the 5
th
of April 2016, a number of individual applicants referred an unfair
dismissal dispute in terms of section 186(1)(d) of the LRA
to the
bargaining council (“the second and third dismissal dispute”)
under case number NELRFBC 40165. A certificate
of no resolution was
issued by the bargaining council on the 4
th
of May 2016.
As
aforesaid, the respondent submitted that the ruling and certificate
of outcome issued in this matter is the subject of review
proceedings
under case number JR 919/16.
[5] On the 7
th
of June
2016, the applicants filed a statement of claim in terms of which it
is alleged,
inter alia
, that the applicants’ dismissal
was automatically unfair in terms of section 187(1)(f) of the LRA in
that the respondent
allegedly dismissed AMCU members, and in so
doing, unfairly discriminated against the individual applicants on
the basis of their
specific trade union membership. In the
alternative, the applicants submitted that the dismissal of the
individual applicants was
substantively unfair in that they did not
participate in an unprotected strike action and/or that they were
unfairly dismissed
in terms of section 186(1)(d).
[6] On the issue of the non-referral
of the dispute in terms of section 187(1)(f), the applicants
submitted that it is common cause
that the dispute was referred to
the Bargaining Council and that they omitted to indicate that the
unfair dismissal dispute included
an automatically unfair dispute.
The applicants further submitted that the respondent “adopts an
unduly technical and formalistic
approach, which is out of step with
relevant jurisdiction”. They relied on the judgment of
CUSA
v Tao Ying Metal Industries
to argue that the referral forms at
the Commission for Conciliation, Mediation and Arbitration (CCMA) and
the Bargaining Council
are not pleadings and that they are not
determinative of the true nature of the dispute.
[7]
Section 187(1)(a) renders automatically unfair dismissals of
employees for participating in a protected strike. Section 187(1)(f)
provides that a dismissal is automatically unfair if an employer, in
dismissing the employee, acts contrary to section 5 or, if
the reason
for dismissal is that the employer unfairly discriminated against an
employee, directly or indirectly, on any arbitrary
ground, including,
but not limited to race, gender, sex, ethnic or social origin,
colour, sexual orientation, age, disability,
religion, conscience,
belief, political opinion, culture, language, marital status or
family responsibility.
[8]
Section 191(5)(b)(iii)
of the LRA provides that:
‘
If
a council or a commissioner has certified that the dispute remains
unresolved, or if 30 days or any further period as agreed
between the
parties have expired since the council or the Commission received the
referral and the dispute remains unresolved,
the employee may refer
the dispute to the Labour Court for adjudication if the employee has
alleged that the reason for dismissal
is:
(i)
automatically unfair;
(ii)
based on the employer‘s operational requirements;
(iii)
the employee’s participation in a strike that does not comply
with the provisions
of Chapter IV; or
(iv)
because the employee refused to join, was refused membership of or
was expelled from a
trade union party to a closed shop agreement.’
[9]
Therefore, if disputes relating to dismissal for participating in a
protected action are automatically unfair, then the disputes
referred
in terms of section 191(5)(b)(iii) are disputes relating to
dismissals that are automatically unfair. It follows that
the dispute
that was referred to the bargaining council in terms of section
191(5)(b)(iii) under case number NELRFBC 39360 alleging
that the
individual applicants were unfairly dismissed for participating in an
unprotected strike falls within the ambits of section
187(1)(a).
Thus, the respondent’s argument that there has been no dispute
referred in terms of an automatically unfair dismissal
is inaccurate.
[10]
The question is whether the unfair discrimination dispute referred to
this Court in terms of section 187(1)(f) was referred
to the
bargaining council or the CCMA for conciliation. It is apparent from
the above that there were two disputes that were referred
to the
bargaining council for conciliation, that is the dispute referred in
terms of section 191(5)(b)(iii) (“the first unfair
dismissal
dispute”) under case number NELRFBC 39360 alleging that the
individual applicants were unfairly dismissed for participating
in an
unprotected strike and the dispute referred in terms of section
186(1)(d) of the LRA to the bargaining council (“the
second and
third dismissal dispute”) under case number NELRFBC 40165
review proceedings of which are pending under case number
JR 919/16.
It follows that the applicants have not referred an unfair
discrimination dispute to the bargaining council or the CCMA
for
conciliation.
[11]
Section 191 of the LRA provides that:
‘
(1)(a)
If there is a dispute about the fairness of a dismissal, or a dispute
about an unfair labour practice, the dismissed
employee or the
employee alleging the unfair labour practice may refer the dispute in
writing to -
(i)
a council, if the parties to the dispute fall within the registered
scope of
that council; or
(ii)
the Commission, if no council has jurisdiction.
(b)
A referral in terms of paragraph (a) must be made within -
(i)
30 days of the date of a dismissal or, if it is a later date, within
30 days
of the employer making a final decision to dismiss or uphold
the dismissal;
(ii)
90 days of the date of the act or omission which allegedly
constitutes the unfair
labour practice or, if it is a later date,
within 90 days of the date on which the employee became aware of the
act or occurrence.
[12]
The LRA requires the council or the commission to attempt to resolve
the dispute through conciliation.
[2]
The Labour Court may, in terms of section 157(4) of the LRA, refuse
to determine any dispute if it is not satisfied that an attempt
has
been made to resolve the dispute through conciliation. The dispute
filed by the applicants to this Court in terms of section
187(1)(f)
by a way of a statement of claim is a different dispute that had to
be conciliated before it could be adjudicated. The
applicants never
referred the unfair discrimination dispute for conciliation. There
was, therefore, no attempt to resolve the unfair
discrimination
dispute through conciliation before it was referred to this Court. As
such, it is my view that this Court lacks
jurisdiction to adjudicate
the unfair discrimination dispute prior to it being conciliated by
the bargaining council or the CCMA.
[13]
The other issue raised was a special plea of
lis
pendens
in
that the
alternative
relief
sought
by
the applicants in paragraph 6.6.3 of its statement of claim is a
dispute that was
referred
in terms of section 186(1)(d) to the bargaining council under case
number NEFLRBC 40165. To this end, the respondent contends
that the
ruling and certificate of outcome issued in this matter is the
subject of review proceedings under case number JR 919/16.
It is trite that
the requirements for the granting of a plea of
lis
pendens
are pending litigation between the same parties or their privies
based on the same course of action and in respect of the same
subject
matter.
In
Caesarstone
Sdot-Yam Ltd v The World of Marble and Granite 2000 CC and Others
[3]
,
the
court
appropriately
summarised
the
principles relating to a plea of
lis
pendens
as follows:
‘
[2]
As its name indicates, a plea of
lis
alibi pendens
is based on the proposition that the dispute (
lis
)
between the parties is being litigated elsewhere and therefore it is
inappropriate for it to be litigated in the court in which
the plea
is raised. The policy underpinning it is that there should be a limit
to the extent to which the same issue is litigated
between the same
parties and that it is desirable that there be finality in
litigation. The courts are also concerned to avoid
a situation where
different courts pronounce on the same issue with the risk that they
may reach differing conclusions. It is a
plea that has been
recognised by our courts for over 100 years.
[3]
The plea bears an affinity to the plea of
res judicata
, which
is directed at achieving the same policy goals. Their close
relationship is evident from the following passage from
Voet
44.2.7:
'
Exception
of
lis pendens
also requires same persons, thing and cause.
The exception that a suit is already pending is quite akin to the
exception of
res judicata,
in as much as, when a suit is
pending before another judge, this exception is granted just so often
as, and in all those cases in
which after a suit has been ended there
is room for the exception of
res judicata
in terms of what has
already been said. Thus the suit must already have started to be
mooted before another judge between the same
persons, about the same
matter and on the same cause, since the place where a judicial
proceeding has once been taken up is also
the place where it ought to
be given its ending.' [Footnotes omitted]
[14]
In
Shongwe
and Others v The City of Johannesburg Metropolitan Municipality,
[4]
this
Court dealt with the principle of
lis
pendens
and
stated as follows:
‘
[26]
In
Dumisani
and Another v Mintroad Saw Mills (Pty) Ltd
,
the Labour Appeal Court held that it was against public policy that
litigants should be able to consistently demand the same relief
and
on the same grounds from the same adversary. Furthermore, the primary
purpose of the LRA is the effective and speedy resolution
of
disputes, and in line with that purpose, this court and other
tribunals are duty bound to a measure of both finality and certainty
in dealing with disputes between parties.
[27]
In the light of the above, it is therefore untenable for the
applicants to approach this Court
with essentially the same claim
under a different guise and effectively seek the same relief that was
determined by the CCMA.’
[Footnotes omitted]
[15]
In this case, the applicants did not dispute that the parties in this
matter were the same as those that were before the bargaining
council
in respect of disputes under case number
NELRFBC
40165 and further that the review proceedings are pending in this
Court under case number JR 919/16.
When
the applicants filed the statement of claim in which they required
this Court to determine
whether
the individual applicants were unfairly dismissed in terms of section
186(1)(d) of the LRA, it
essentially
brought the same claim under a different guise and they are
effectively seeking the same relief that was determined
by the
bargaining council. I agree with the respondent’s view that
this amounts to forum shopping and it is indefensible.
To the extent
that the review proceedings are pending in this Court, it follows
that the matter is
lis
pendens
.
[16]
On the issue of non-compliance with Rule 6(1)(b) and (d) of the Rules
of this Court, the respondent contends that the applicants
have not
provided full details of the applicants’ positions,
remuneration, commencement date and further that the allegations
are
vague and unsubstantiated. The applicants correctly submitted that
none of these aspects are required to be set out in terms
of Rule
6(1)(b) and (d) of the Labour Court Rules.
[5]
There is, therefore, no basis for the respondent’s contention
in this regard.
[17]
I have considered the issue of costs and I see no reason, in law and
fairness, why costs should not follow the results.
Order
[18]
In the premises, I make the following order:
(i)
The preliminary points
raised by the respondent, and in particular, the pleas of
non-referral in
terms
of section 187(1)(f) and
lis
alibi pendens
are upheld.
(ii)
The applicants’ main claim as per their statement of case is
dismissed with
costs.
__________________
Mahosi AJ
Acting Judge of the Labour Court
APPEARANCES:
FOR THE APPLICANTS:
Adv. Riaz Itzkin
Instructed by Larry
Dave Attorneys
FOR THE THIRD RESPONDENT:
Adv L. Pillay
Instructed by Yusuf
Nagdee Attorneys
[1]
Act 66 of 1995.
[2]
Section 191(4) of the
LRA provides that “the council or the commission must attempt
to resolve the dispute through conciliation.”
[3]
2013 (6) SA 499 (SCA).
[4]
Unreported
judgment
JR
483/14 (25 February 2016).
[5]
Rule
6(1)(b) and (d) of the Labour Court Rules[5] requires that the
Statement of claim must -
(b)
have a substantive part containing the following information:
(i)
The names, description and addresses of the parties;
(ii)
a clear and concise statement of the material facts, in
chronological order,
on which the party relies, which statement must
be sufficiently particular to enable any opposing party to reply to
the document;
(iii)
a clear and concise statement of the legal issues that arise from
the material
facts, which statement must be sufficiently particular
to enable any opposing party to reply to the document; and
(iv)
the relief sought;
(c)
be signed by the party to the proceedings;
(d)
express all dates, sums and numbers contained in the document in
figures;
(e)
be accompanied by a schedule listing the documents that are material
and relevant
to the claim; and
(f)
be delivered.’