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[2017] ZALCJHB 113
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Mhlanga v Synergy Global Consulting (Pty) Ltd and Another (JS454/16) [2017] ZALCJHB 113 (31 March 2017)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
C
ase
No: JS 454/16
In
the matter between:
JOELYN KGAOGELO MHLANGA
Applicant
and
SYNERGY GLOBAL CONSULTING
(PTY) LTD
First Respondent
SYNERGY GLOBAL CONSULTING LTD
Second Respondent
Heard
:
3 March 2017
Delivered
:
31 March 2017
Summary:
(Exception – multiplicity of overlapping
claims – court lacking jurisdiction over all claims except
unfair discrimination
claim – unfair discrimination claim vague
and embarrassing – original statement of claim struck out -
applicant provided
an opportunity to file an amended statement of
claim)
JUDGMENT
LAGRANGE
J
Introduction
[1]
The respondents have taken exception to the
applicant’s statement of case after giving the applicant an
opportunity to remove
the causes of complaint in a notice issued by
the respondents on 17 December 2016. The applicant opposed the
exception application
in as much detail as her original statement of
case.
[2]
At the hearing of the matter, the applicant
was asked to produce the various referrals of the various disputes
she had made to the
CCMA which are relevant to her claim in order for
the court to understand which disputes have been referred to
conciliation. The
applicant provided copies of the referrals as
requested.
[3]
Parties are referred to, according to their
status as applicant and respondents in the main referral.
Chronology
of events
[4]
To simplify an understanding of the
applicant’s various claims, a brief chronology will assist.
[5]
The applicant was employed on 1 October
2012 by the first respondent.
[6]
A retrenchment consultation process
commenced in November 2015. It was during this process that the
applicant lodged her first formal
grievance on 14 December 2015
alleging victimisation and discrimination in her working environment
in relation to her working relationships
with various managers. She
claimed that the unfair treatment she was subjected to induce in her
“a feeling of incompetence,
anxiety about job security and
tensions in work relationships; my request for a salary increase;
changing job title to business
operations management and subsequently
the possible restructure, redundancy and retrenchments. I requested
for the change in my
job position title to be reconsidered as per my
initial request in 2015 which I had retracted and explained why had I
had retracted
it in the first place. I stated that I felt these
issues were related to the victimisation and discrimination I felt
that I had
been subject to and this was a continuation of that unfair
treatment.” The reference to a continuation of unfair treatment
appears to have been a general reference to the state of her working
relationship with her managers in the previous two or three
years.
Without itemising the entire gamut of the applicant’s
complaints, it is fair to say that most of them related to
differences between her and her managers about work performance and
attitude. She claims that she was unfairly prejudiced in numerous
ways by her seniors.
[7]
According to the applicant, after she
lodged her grievance, grievance meetings were held from January 2016.
According to her this
process did not resolve matters and during the
course of it, she claimed to have learnt that the reason for the
proposed restructuring
proposals was that she had not co-operated in
incomplete job description and salary review negotiations.
[8]
In paragraph 5.16.10 of her statement of
claim, the applicant complained that between January and February
2016 “other harassment
and discriminatory incidents occurred”.
Accordingly, on 19 February 2016 she submitted a second grievance
“which was
linked to the first grievance where I further
elaborated on the discrimination and victimisation; how certain
procedures and systems
were introduced and structured in a way that
made me accountable for my colleagues’ work and duties, some
caused confusion
where I was made to take responsibility for the
confusion and other systems and procedures made me manage some of my
colleagues
and how they performed the tasks whereas I did not have
the authority to directly address certain issues with my teammates as
they
did not report to me and had their specific line managers.”
[9]
The applicant further complained that the
person handling her grievance, Mr Sejake (‘Sejake’),
tried to make her “feel
like her understanding of
discrimination and victimisation were warped” and that she was
“confused” about what
she was saying even though she
believes she had logically substantiated her understanding of the
meaning of those works in line
with the applicable legislation. In
her debate with Sejake, she claimed that his understanding of
victimisation and discrimination
was ‘political’ whereas
she advised him that in accordance with the Employment Equity Act,
“unfair treatment
is a form of discrimination and
victimisation, discrimination and victimisation also listed as
harassment as per this Act and that
harassment in the workplace
covers unfair treatment, victimisation and discrimination and that
harassment is one of the issues
protected by the law, it is
recognised as unfair discrimination, unfair treatment is one of the
examples of harassment.”
[10]
The applicant states that her second
grievance was handled by Mr O’Keefe (‘O’Keefe’)
who, like Sejake,
did not address most of the issues in his grievance
report and also tried to make her feel like she did not understand
the meaning
of victimisation and discrimination. Both the grievance
reports of Sejake and O’Keefe were upheld on appeal by the
directors
on 6 April 2016. The applicant then appealed against the
directors’ decision.
[11]
On 14 April 2016, she received notice that
her position had become redundant and she could either be retrenched
or accept an offer
of alternative employment, which she regarded as
unreasonable because it would reduce her remuneration by two thirds
and involve
her doing menial work.
[12]
20 April the respondents notified the
applicant that they would make use of an independent chairperson to
chair the grievance appeal
hearing. However, the applicant objected
to the nomination of a chairperson because of alleged conflicts of
interest. Around this
time, the applicant claimed she received an
email from one of the senior managers which was not intended for her.
The email indicated
that the respondents wanted to get rid of her as
an employee. She also interpreted this email as ‘discriminatory’,
apparently on the basis that it revealed the respondent’s bad
intentions towards her and ulterior motives.
[13]
On 20 April 2016, the applicant referred a
claim of unfair discrimination under section 10 of the Employment
Equity Act, 55 of 1998
(‘the EEA’) to the CCMA under case
number GAJB 8644-16. In her summary of the nature of the dispute on
the referral
form, she described it as “Unfair treatment
related to my current employment terms and conditions and harassment
resulting
in being unfairly selected and compelled to either take
severance pay or unreasonable alternative position due to
restructuring.”
The claim was served on the respondent on 21
April 2016.
[14]
On 20 April 2016, the applicant also claims
she sent an email raising her concerns about the alleged bias and/or
conflicts of interest
relating to the chairperson nominated to hear
her grievance appeal.
[15]
On 22 April she alleges that the
respondents suspended her for raising her conflict of interest and/or
bias claim regarding the
nomination of the ‘Tokiso’
chairperson who heard her grievance hearing. They also issued her
with disciplinary charges
which, amongst others, alleged that:
15.1
she had brought the organisation into
disrepute;
15.2
created the risk of legal action being
taken against the respondent on account of her comments in her email;
15.3
defamed the respondent and other
organisations and individuals, and
15.4
other grounds of misconduct.
[16]
Her suspension prompted the applicant to
refer a claim of unfair suspension to the CCMA under case number GAJB
8893-16 on 26 April
2016.
[17]
On 29 April 2016, she was notified of her
retrenchment and that May 2016 would be her last month of employment.
Notwithstanding
the fact that she remained suspended, the pending
grievance appeal hearing was held on 5 May 2016 presided over by the
external
chairperson to whom she had objected.
[18]
At the grievance appeal hearing conducted
by the external chairperson, the applicant once again felt that the
chairperson of the
appeal hearing made her feel that she had a warped
understanding of discrimination and victimisation and that she was
confused,
even after she explained how her claim was within the
meaning of those terms in the applicable legislation.
[19]
Following the grievance appeal hearing, her
disciplinary charges were supplemented with other charges relating
to:
19.1
Her alleged disclosure of the email sent to
her in error which the respondents claimed was privileged and which
she had been instructed
to delete.
19.2
Disseminating the same email to the
grievance appeal chairperson and the CCMA.
19.3
Exposing the respondents to further
financial risk.
[20]
The applicant’s disciplinary enquiry
was held on 16 May 2016 and she was found guilty and dismissed on 17
May 2016. In the
midst of all these events, the applicant filed
another grievance (the ‘third grievance’) which she
claimed was linked
to her first two grievances covering the entire
period between her employment in 2012 and her dismissal. This
grievance does not
appear to have led to a further referral of a
dispute to the CCMA.
[21]
However, on 1 June 2016 she referred a case
of unfair dismissal for operational reasons to the CCMA under case
number GAJB 11790-16.
[22]
The applicant’s unfair suspension
claim was arbitrated by the CCMA on 14 July 2016 and the arbitrator
found that her suspension
was substantively fair but procedurally
unfair. It appears that the applicant might have subsequently
persuaded the arbitrator
that her suspension ought to have been found
to be substantively unfair as well as procedurally unfair but the
arbitrator declined
to vary the award and the applicant was advised
to take the award on review, which she has done. That review is still
pending under
case number JR 227016. Although she did not mention it
in her original referral of her unfair suspension claim, the
applicant also
belatedly claims in her statement of claim that her
suspension was also an occupational detriment under the Protected
Disclosure
Act, 26 of 2000 (‘the PDA’).
[23]
On 21 July 2016, the applicant referred a
separate claim of unfair dismissal for misconduct to the CCMA under
case number GAJB 15614-16.
This unfair dismissal dispute claim was
consolidated with the first claim of unfair dismissal for operational
reasons and an arbitration
hearing took place between September and
October 2016. According to the applicant, the arbitrator found that
her dismissal was
for misconduct, not for operational reasons, and
that it was substantively unfair. As in the case of her unfair
suspension claim,
the applicant also sought to vary this award to
include a finding that the dismissal was procedurally unfair as well.
In addition,
she sought a variation to include findings that her
contract of employment had been breached and that the dismissal was
also an
occupational detriment under the PDA and accordingly an
automatically unfair dismissal. Unsurprisingly, the arbitrator did
not
agree to vary the award. The applicant then sought to achieve the
same result by reviewing this award too, but found that the
respondent
had already filed a review application itself in respect
of this award.
[24]
On account of the pending review, the
respondents advised that it would not comply with the award by paying
the applicant back pay
or by reinstating her.
The
exception
[25]
A
notice excepting to the applicant’s statement of claim was
issued on 23 January 2017. The respondents readily conceded that
they
do not expect the applicant’s pleadings to be of the same
standard as a legal practitioner’s, but asked for a
balance to
be struck between the unions towards the applicant as a lay person
and fairness to the respondents.
[1]
This is obviously the correct approach though it must also be
recognised that the extent to which a lay person’s deviation
from the normal standard of pleading will be tolerated will also vary
according to the education and literacy of the individual.
There is a
vast difference in the abilities of lay persons who appear in this
court and that consideration also plays a role in
striking the
balance referred to. In this case the respondents express a
justifiable concern over the proliferation of litigation
initiated by
the applicant and the difficulty of responding to the applicant’s
statement of case because of the way she has
set it out.
[26]
Indeed, if the applicant’s statement
of case had been drafted by a legal practitioner, the respondents
would have been entitled
to demand that the entire statement should
be declared defective because of its non-compliance with rule
6(1)(b)(ii) and (iii)
of the Labour Court rules, which states:
(1)
A document initiating proceedings, known as
a “statement of claim”, may follow the form set out in
Form 2 and must—
...
(b)
have a substantive part containing the following information:
...
(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 ...”
[27]
The applicant’s statement of claim is
anything but concise. The applicant may be a layperson but is an
educated person who
performed the job of a Business Support Manager.
Her statement consists of 37 densely typed pages easily exceeding
17,000 words
in length. The alleged facts are not consistently set
out in a chronological order and furthermore contain a considerable
degree
of overlap and repetition. The applicant’s style of
drafting is such that it is difficult to know where one claim ends
and
another one begins. It is also difficult to determine the link
between the voluminous allegations made, which seem to canvass every
issue in the applicant’s entire employment history with the
respondents that caused her unhappiness, and the wider variety
of
legal claims she has brought. It is fair to say that, to try and
unravel the applicant’s statement of case and identify
the
discreet factual basis of each claim would take a reasonably
experienced legal practitioner the more than a full day’s
work,
and even then they might not succeed in knowing which allegations
relate to which claim. A statement of claim ought not to
require such
close scrutiny in order to determine the nature of the legal claims
and the essential factual averments on which each
of the legal claims
rest. Be that as it may, the exceptions noted by the respondent raise
problems of a more fundamental nature
than simply the difficulty of
sifting through the voluminous narrative of the statement of claim in
order to understand it.
[28]
Turning to the specifics of the exception,
the respondents contend that the statement of case is vague and
embarrassing and, or
alternatively, lacks the necessary averments to
sustain the applicant’s legal claims. Although framed as a
notice of exception,
some of the objections raised are more in the
nature of special pleas because they raise jurisdictional questions.
However, I accept
that where, for example, an employee has not
pleaded a necessary averments that, a dispute was referred to
conciliation before
being referred to this court for adjudication,
that can also be dealt with as simply as an excipiable defect in the
pleadings because
the statement does not set out a basis for the
court’s jurisdiction. I will address the exceptions in the
order in which
they are raised.
First
exception
[29]
In paragraph 6.3.48 of her statement of
claim the applicant alleges that her dismissal was automatically
unfair, as follows:
“
I
believe that my dismissal (be it retrenchment or misconduct) will be
an automatically unfair dismissal as I believe that I was
dismissed
due to unfair discrimination and the charges in disciplinary
proceedings which contributed to my notice of summary dismissal
were
partly due to making a protected disclosure which therefore
constitutes a contravention by the respondents of the
Protected
Disclosures Act 2000
. This will be an alternative claim dependent on
the outcome of my appeal against summary dismissal and conciliation
of the CCMA
referral for unfair dismissal due to retrenchment. Should
the CCMA and/or the labour court decided my dismissal was not
automatically
unfair, it will still be unfair whether the reason for
dismissal was misconduct or retrenchment.”
It must
be noted in regard to the above that at the time the statement of
case was filed, the applicant’s unfair dismissal
claims had not
been determined by the CCMA.
[30]
In paragraph 7.4 of her statement of claim
the applicant claims relief as per “
section 193
of the LRA the
applicable remedies for unfair dismissal and unfair labour practices
the Labour Court will deem fit.”
[31]
The respondents point out that the
applicant has already obtained relief for her unfair dismissal in the
CCMA which is currently
the subject matter of a review application
and accordingly, she cannot bring a different claim of unfair
dismissal when she has
already elected to pursue her unfair dismissal
claim on a different basis.
[32]
Although
the exception is framed in terms of the principle of
res
judicata,
the
real difficulty with the applicant asking this court to adjudicate on
an automatically unfair dismissal has less to do with
the principle
of
res
judicata
than, with the principle that in terms of the Labour Relations Act,
66 of 1995 (‘the LRA’) an unfair dismissal claim
is
adjudicated on the basis of the real reason for the dismissal.
[2]
This is because the facts necessary to prove an automatically unfair
dismissal are not the same as those necessary to prove an
unfair
dismissal for misconduct even though some common facts will arise in
both claims. Moreover the cause of action is different
and the relief
may also differ.
[33]
The
issue raised by the exception nevertheless raises the question if
this court is competent to hear a separate claim of automatically
unfair dismissal in circumstances where the same dismissal has
already be determined as unfair on another basis. In terms of s
158
(2) the LRA if it appears to the Labour Court dealing with an
automatically unfair dismissal claim that the real reason for
the
dismissal is simply misconduct then it may refer the dispute to
arbitration or, subject to agreement of the parties, hear the
matter
sitting in the capacity of an arbitrator in terms of section.
[3]
A necessary corollary of this approach is that an employee cannot
obtain relief for one dismissal by having it adjudicated on the
one
hand as an automatically unfair dismissal and on the other as an
ordinary dismissal for misconduct, incapacity or operational
reason.
Even if this court is dealing with a claim of automatically unfair
dismissal and an alternative claim of unfair retrenchment,
both of
which it has jurisdiction over, it will award relief based on which
of the two alternative reasons the court determines
the real reason
for dismissal.
[34]
It also follows from the substantive
approach of identifying the nature of the dismissal dispute as set
out in
Wardlaw
that where an unfair dismissal claim has been referred to arbitration
and a determination on the fairness of that dismissal has
been made,
then it is implicit that the employee pursued the matter in an
arbitration forum on the basis that the real reason for
the dismissal
was one that falls within the jurisdiction of an arbitrator and that
the employee was not advancing a claim that
the real reason was a
prohibited reason, such as making a protected disclosure.
[35]
Of course, it is possible that the employee
could have decided to challenge the fairness of the dismissal on the
basis that it was
for a reason prohibited by section 187, but having
made a choice to challenge a dismissal as an unfair dismissal for
misconduct,
unless the arbitrator decides otherwise the fairness of
the dismissal falls to be determined on the basis of that misconduct
as
that reason, which the arbitrator has jurisdiction over to
determine its fairness.
[36]
The idea that an employee who has been
dismissed must make a choice about the nature of the unfair dismissal
claim they intend to
pursue is also in conformity with the structure
of sections 191 (5) (a) and (b) of the LRA, which channel an
employee’s unfair
dismissal claim to the appropriate forum
depending on the nature of the unfairness of the employee alleges.
The fact that the Labour
Court under section 158 (2), or an
arbitrator in the exercise of their power to provisionally determined
their jurisdiction, decides
that the real nature of the dismissal
dispute requires the matter to be heard in the alternative forum does
not detract from the
fact that a dispute over the fairness of a
dismissal must be determined once by the appropriate forum and cannot
be determined
twice, once on the basis of one reason in one forum and
again for another reason in the other forum.
[37]
This
approach does not of course prevent an employee who has raised an
ordinary dismissal dispute on the one hand and an unfair
discrimination claim on the other, which does not relate to the
dismissal as such, from pursuing both claims in the respective
arbitration forum and the Labour Court.
[4]
[38]
What the applicant attempts to do in
this case is, having obtained a determination that her dismissal was
unfair for misconduct
and having been awarded relief consequent to
that finding, she now wishes to obtain a judgement based on a
different reason for
the same dismissal. The court is not competent
to hear such a claim for the reasons discussed.
Second
exception
[39]
The applicant claims in paragraph 6.3.9 of
her statement of claim that she was unfairly discriminated against
because the respondents
breached the provisions of section 5 (2) (c)
(iv) and (v) of the LRA. The respondents point out that a dispute
about a breach of
these rights which effectively protect an employee
against victimisation for exercising their rights under the LRA is a
matter
that section 9 of the LRA requires should be referred to
conciliation and thereafter to the Labour Court if it remains
unresolved.
[40]
In this instance, there is no allegation by
the applicant that she has referred such a dispute for conciliation
and consequently
the court has no jurisdiction to hear a claim of
this nature. In this regard it must be mentioned that none of the
dispute referrals
handed in to the court by the applicant at the
court’s request relate to a dispute of this nature.
[41]
I agree furthermore that, the rights
protected by section 5 of the LRA have a prescribed method of
enforcement in terms of section
9 and that is the procedure the
applicant ought to have followed. The rights are enunciated in the
LRA and the LRA provides the
remedy for their infringement.
Third
exception
[42]
Another instance of alleged unfair
discrimination referred to by the applicant is a repetition of her
claim that she was subjected
to an unfair labour practice in terms of
Section 186 of the LRA when she was suspended. This claim has also
been adjudicated in
the CCMA and it is the subject matter of a
review. Moreover, that is a matter to be determined solely by
arbitration and the Labour
Court does not have jurisdiction over such
a dispute in terms of section 191 (1) (a) read with section 157 (5)
of the LRA.
Fourth
Exception
[43]
Similarly, the respondents claim that the
applicant’s assertion that she was discriminated against for
raising a grievance
and that this constitutes an arbitrary ground of
discrimination is not conduct by an employer which falls within the
ambit of section
187 (1) (f) of the LRA or section 6 of the EEA. I
agree.
[44]
I have already addressed the fact that this
is a right provided and enforced by sections 5 and 9 of the LRA
respectively. Furthermore,
the applicant does not identify an
arbitrary ground of the type mentioned in section 6(1) of the EEA as
the ground of discrimination.
In this regard, I appreciate that the
applicant appears to believe that any perceived unfair treatment can
be classed as an act
of discrimination. However, even harassment
under s 6(3) of the EEA is only unfair discrimination if it is on one
or more of the
grounds listed in s 6(1).
[45]
In so far as this claim is alleged to be a
claim under section 187(1) (f) of the LRA, the applicant faces the
same problem in relation
to this claim as she faces in her other
claims of automatically unfair dismissal because she has already
obtained relief for her
dismissal in the CCMA which is the forum in
which she elected to pursue an unfair dismissal, albeit that that
award is the subject
matter of a pending review.
[46]
As in her other claims based on sections 5
(2) (c) (iv) and (v) of the LRA, section 9 of the LRA provides the
remedy for. It was
never intended in my view that s 5 rights for
which the LRA which provides specific remedies could found a claim
under s 6 of the
EEA.
Fifth
and Sixth exceptions
[47]
The respondents also contend that her claim
that she has been unfairly discriminated against under section 6 (3)
of the EEA is defective
because she does not identify a prohibited
ground of discrimination on which she is alleged to have been
discriminated. The respondents
repeat an earlier contention that
prejudicial treatment for “raising a grievance” cannot
amount to an arbitrary ground
of discrimination. Accordingly, they
argue that this claim fails to disclose a cause of action.
[48]
In a similar vein, they contend that her
claim to have been discriminated or harassed because she exercised
her legal rights is
similarly defective. Moreover, to the extent that
she relies on incidents occurring in a four-year period from October
2012 to
May 2016 she fails to particularise which of these incidents
relates to which of her claims of harassment, victimisation or
discrimination
arising from her exercise of her legal rights and in
that sense her claim is also vague and embarrassing.
[49]
In my view both these exceptions are sound
as the applicant has failed to identify an arbitrary ground on which
the discrimination
is based. The reason an employer may not prejudice
an employee for exercising their rights under the LRA is not because
it is a
form of arbitrary treatment, but because the LRA recognises
that if employees are not protected against victimisation for
exercising
their rights they may be discouraged from exercising them.
Seventh
exception
[50]
In paragraph 7.2 of her statement of claim,
the applicant claims a full recalculation of her salary and all
bonuses from October
2012 to date. The legal basis for her
entitlement to such a recalculation is not set out and accordingly is
vague and embarrassing.
[51]
There is no right in law to a rectification
of salary on the basis of what an employee simply believes ought to
be an appropriate
level of remuneration. A claim for arrear
remuneration must be based on a contractual term or statutory
conditions of employment.
The applicant has not laid a legal basis
for this claim.
Conclusion
[52]
In the result, I am satisfied that all the
respondents’ exceptions must be upheld.
[53]
Furthermore, the only claim this court
could conceivably consider is the unfair discrimination claim which
the applicant referred
to conciliation in April 2016 and which she
described in the following terms at the time:
“
Unfair
treatment related to my current employment terms and conditions and
harassment resulting in the being unfairly selected and
compelled to
either take severance pay or unreasonable alternative position due to
restructuring.”
[54]
If the applicant wishes to pursue this
claim, it will be necessary for her to file an amended statement of
case addressing this
claim alone. In the order below, she is given
that opportunity. For the sake of clarity, I have also made a ruling
on those disputes
which cannot be entertained in this court for the
reasons stated above.
[55]
On this occasion, I have not made an
adverse cost award against the applicant but she is cautioned that if
she persists in filing
lengthy and convoluted pleadings without
merit, she may not always escape such an adverse award.
Order
[56]
The first to seventh grounds of exception
in the respondents’ notice of exception filed on 23 January
2017 are upheld and
the applicant’s existing statement of claim
is struck out in its entirety.
[57]
The applicant may not pursue her claim of
unfair dismissal which has been adjudicated in the CCMA in these
proceedings nor may she
pursue an automatically unfair dismissal
claim against the respondents in these proceedings or any unfair
labour practice claim
relating to her suspension.
[58]
The applicant may also not pursue a claim
of unfair discrimination under
section 10
of the
Employment Equity
Act relating
to an alleged breach of her right to exercise her rights
under
s 5
of the
Labour Relations Act.
[59
]
Insofar as the applicant wishes to pursue
her claim of unfair discrimination referred to the CCMA on 20 April
2016, the applicant
must file an amended statement of case dealing
solely with that claim and her statement of case must, as far as she
is reasonably
able to, comply with the provisions of
Rule 6
of the
Labour Court. In particular, it must contain
59.1
a
clear and
concise
statement of the material
facts,
in chronological order
,
on which she relies, which statement must be
sufficiently
particular
to enable any opposing party
to reply to the document, and
59.2
a
clear and
concise statement of the legal issues
that arise from the material facts, which statement must be
sufficiently particular to enable the respondents to reply to the
document.
[60]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
In
person
RESPONDENTS:
P
Pillay instructed by BKM Attorneys
[1]
A position adopted in
Chauke
v Machine Tool Market (Pty) Ltd
(2013)
34
ILJ
1150 (LC)
at
1154
[2]
The plea of
res judicata is an appropriate one to raise where ‘the
concluded litigation is again commenced between the same
parties, in
regard to the same thing, and for the same cause of action, so much
so, that if one of those requisites is wanting,
the exception
fails’.
Fidelity
Guards Holdings (Pty) Ltd v Professional Transport Workers Union &
others
(1999) 20
ILJ
82 (LAC) at 85-6, para [7].
[3]
See
Wardlaw v Supreme
Mouldings (Pty) Ltd
(2007)
28
ILJ
1042 (LAC) at 1050-1051, paras [17] – [21] on the substantive
approach in terms of which the real nature of the dispute
determined
whether a dismissal dispute should be referred to arbitration or
adjudication.
[4]
See e.g.
Gauteng
Shared Services Centre v Ditsamai
(2012)
33
ILJ
348 (LAC)