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[2017] ZALCJHB 325
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BIFAWU obo Mncube and Others v Legalwise Expenses Insurance South Africa t/a Legalwise (J889/17) [2017] ZALCJHB 325 (12 September 2017)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase No: J
889/17
In
the matter between:
BIFAWU
obo W MNCUBE & 60 OTHERS
Applicant
and
LEGALWISE
EXPENSES INSURANCE SOUTH
AFRICA t/a LEGALWISE
Respondent
Heard:
08 September 2017
Delivered: 12 September 2017
Summary:
(Rule 11 - opposed exception application – failure to disclose
a cause of action either on facts or in law)
JUDGMENT
Introduction
[1]
The respondent has objected to the applicant’s statement of
case filed on 18 April 2017 on the basis that it fails to
disclose a
cause of action. The applicant decided to oppose the exception,
instead of seeking to amend its statement of case.
The
exception
[2]
Rule 6(1)(b) of the Labour Court Rules requires that the substantive
portion of a statement of case must satisfy the following
requirements:
“
(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;..”
[3]
The applicant’s statement of claim is anything but concise in
stating the factual basis of the claim and the chronological
order is
confusing at times. It is convoluted and frustratingly vague in
places, lacking in the particularity it requires. However,
the
respondent has not objected to the referral on the basis that it is
vague and embarrassing or that it does not satisfy the
requirements
of Rule 6(1)(b). Its objection is that the statement does not
make out a case in law. More particularly, it
focuses on the relief
sought by the applicant and raises a threefold objection thereto.
Firstly, insofar as the applicants asked
for the court to review and
set aside the respondent’s decision to introduce and implement
new technology and new work methods
using its powers under section
158 (1) (h) Of the Labour Relations Act, 66 of 1995 (‘the LRA’)
the respondent points
out that the court has no such power except in
relation to decisions of organs of state. Secondly, it objects to the
formulation
of the applicants claim that it is entitled to relief in
the form of an order of the court directing the respondent to comply
with
the provisions of the LRA in the exercise of its powers under
section 158 (1) (a) (iii) and (b) of the Act. It complains that the
applicant has not identified which particular action the respondent
must perform that will remedy a wrong and give effect to a
primary
object of the act. Further, it argues that the applicant has not
identified which provision of the Act it should be compelled
to
comply with.
Evaluation
[4]
To fairly appraise the merits of the claim it is useful to try and
establish what the applicant appears to be trying to achieve,
making
allowance for the fact that the statement is drafted by a layperson,
albeit someone with a good command of language. The
key issue is
whether the applicant’s case which emerges from the dense fog
of its statement discloses one or more recognizable
causes of action
that this court can adjudicate.
[5]
In paragraph 5 of the applicant’s statement of case it is
claimed that the dispute concerns the respondent’s failure
to
consult with the applicant on behalf of its members on the merits of
the decision to restructure or to introduce technological
change to
achieve various objectives allegedly on the basis that the applicant
does not represent the majority of employees in
the workplace. The
applicant asks the court to review and set aside the decision in
terms of section 158 (1) (h) and to make an
order “to comply as
contemplated by section 158 (1) (a) (iii) and (b) of the LRA.
[6]
The relevant provisions referred to are set out below:
158. Powers of Labour Court
(1)
The Labour Court may-
(a)
make any appropriate order, including
(i)
the grant of urgent
interim relief;
(ii)
an interdict;
(iii)
an order directing the performance of
any particular act which order, when implemented, will
remedy a wrong
and give effect to the primary objects of this Act;
(iv)
a declaratory order;
(v)
an award of compensation in any
circumstances contemplated in this Act;
(vi)
an award of damages in any
circumstances contemplated in this Act; and
(vii)
an order for costs;
(b)
order compliance with any provision of this Act or any employment
law;
…
(h)
review any decision taken or any act performed
by the State
in
its capacity as employer
, on such grounds as are permissible in
law;...”
[7]
In paragraph 5.1.4 of the statement the applicant complains that the
introduction of new technology and work methods without
complying
with section 84 (1) and (b) read with section 189 of the LRA was
deliberately done in order to avoid a possible industrial
action by
the union and its members and any resulting dismissals would, in any
event, have been prohibited by section 187 (1) (a)
of the LRA.
[8]
Section 84 refers to consultations which may take place within the
context of the existence of a workplace forum. Nowhere in
the
applicant’s statement of case does it say that a workplace
forum exists, so the provisions of section 84 do not appear
to have
any application on the pleaded facts.
Mr Nhlapo
, representing
the applicant argued that it could never have been the intention to
provide consultative rights to a workplace forum
without extending
the same rights to a registered trade union.
[9]
Section 187(1)(a) refers to automatically unfair dismissals relating
to participation or intended participation in a protected
strike.
Again, there is no allegation any dismissal of this sort has taken
place and consequently the pleaded facts would not appear
to support
a claim for relief under that section. Section 189 refers to the
requirements of consultation where an employer contemplates
the
possibility of dismissing employees for operational reasons. Although
it does not appear that any dismissals for operational
reasons have
taken place, the union complained on 7 December 2015 that it had been
kept in the dark about the respondents alleged
failure to consult on
the merits of the decision to introduce technological change “as
contemplated in the collective agreement
and section 189 (1)”
the union complained that it had been bypassed in the consultation
process.
[10]
It is further alleged that from 2006 until 2013 the union had enjoyed
organisational rights of various kinds as well as the
right to be
consulted when the respondent embarked on a restructuring program
that might cause job losses, irrespective of the
union not having
recruited a majority of the workforce.
[11]
According to paragraph 5.13 of the statement of case, following a
meeting held on 10 March 2015 the respondent refused to deal
with the
applicant unless it had 30% representivity in terms of the collective
agreement and, in order to represent its members
on issues not
covered by the collective agreement, it required 50% representivity.
It would appear that the question of consulting
with the union over
technological change came to a head in December 2015. The
respondent’s stance had been that it had consulted
individually
with the employees concerning the new technology and that the union
was not a majority union and accordingly it had
not breached the LRA
or any collective agreement by not consulting with the union about a
business decision. The union alleges
that the respondent’s
direct consultation with employees undermined their rights under
section 4 and section 5 of the LRA.
In broad terms, these provisions
protect employees against victimisation for exercising their right to
join and participate in
union activities.
[12]
The union further alleges that the new technology project as
implemented by the employer sought to bypass labour legislation
and
was at odds with the
Skills Development Act 97 of 1998
and the
National Skills Development strategy. However, there was no
particularity provided as to which provisions if any of either
of
those acts directly applied to the respondent and which provisions if
any it had failed to comply with.
[13]
The union further alleges that on account of the respondent stating
in a letter dated 29 July 2016 that it accepted the obligation
to
consult under
section 189
of the LR A “once the employer is
contemplating retrenchment” that this was evidence that the
employer had misinterpreted
the LRA and it contradicted the
employer’s previous stance on consultation. In essence, the
applicant argues that
section 189
“is not only applicable when
an employer contemplating retrenchment” but is “also
applicable when an employer
contemplates to change the working
conditions as a result of the proposed operational requirements
changes as an alternative to
retrenchment.” However, the
applicant could produce no authority for this interpretation of
section 189
and I am not aware of any that has gone so far.
[14]
The applicant further alleges that
section 84
of the LRA concerning
the obligation to consult over certain matters was not intended to be
confined to companies that had a workers
forum, but also included a
duty to consult with a registered union. However, the requirements of
s 84
were specifically crafted for a new workplace structure to
facilitate a form of co-operative workplace governance. Unions were
not envisaged as playing an equal role in that forum. The fact that
rights were accorded to a workplace forum rather than a registered
union, was an inducement to establish such bodies. It is also
inconceivable that if the legislature had intended a registered union
to enjoy such rights of consultation as a matter of right that this
was not provided for in section 84. The interpretation argued
for by
the applicant is untenable on any reasonable interpretation of that
section.
[15]
In summary, in so far as the applicant is contesting it has a right
to be consulted about workplace changes before any workplace
changes
are implemented, that is a matter of mutual interest and nothing
prevents a union pursuing a demand for such consultation
to take
place before
s 187(1)
would be operative, but a right to such
consultation is not established by the LRA, and the court cannot
impose such an obligation
on an employer under the act.
[16]
Regarding the employer’s failure to consult with the union on
the basis of it not being a majority union, that likewise
is a matter
of mutual interest and, subject to the provisions of any collective
agreement binding on the union or its members not
to embark on
protected strike action on such issues, nothing would prevent the
applicant from pursuing that as a dispute of interest.
The applicant
did not mention that any industrial action had in fact taken place in
relation to these issues, which it ought to
have done if it had
already embarked on such action in relation to the same dispute. I
mention this because the respondent’s
representative,
Mr
Frahm-Arp
, mentioned in argument that the applicant was well
aware of its right to attempt to compel the respondent to consult or
negotiate
with it on these matters by means of protected industrial
action because it had already exercised that right and had failed to
prevent a lockout being implemented in retaliation.
[17]
In relation to an alleged
infringement of members rights under
s 4
and
s 5
of the LRA, the only
sense in which this can be understood from the statement of case to
embody a cause of action is that by refusing
to consult with the
union and therefore deal with the members’ chosen mouthpiece,
that somehow infringed their rights to
participate in the union, or
unfairly discriminated against them on account of doing so.
It is clear that the LRA envisages
and promotes collective bargaining
between representative trade unions and employers and provides
elaborate mechanisms for unions
that do not have majority
representation to obtain a bouquet of organization rights which will
assist them to promote their growth
in a workplace.
[1]
The right of minority unions in certain circumstances to embark on
protected strike action to try and achieve bargaining or consultative
rights, is also recognized. But the LRA also envisages that
minority unions might not obtain those rights and such limitations
are not incompatible with the freedom of employees to join and
participate in such unions, provided that an employer does not apply
a more favourable dispensation to other unions with less or
equivalent degrees of representation in the workplace. It is not an
infringement of an individual employees’ right to freedom of
association
per se
if
their union is not afforded rights by the employer, subject to the
provisions of the LRA governing disputes over organisational
rights.
[18]
In effect it was argued by the applicant that
s 158(1)(h)
should be
read as containing at least two separate parts, one relating to the
review of “any decision taken” and the
other to “any
act performed by the State” . However, it is implausible to
read that provision in such a truncated fashion.
It must clearly be
read as a whole and that only the state as employer was contemplated
by that provision. To suggest that the
provision was intended to
create an entirely new hitherto unknown cause of action in law,
namely that the decisions of private
employers could now be subject
to judicial review, is with respect, nonsensical. Firstly, if that
were the case there would be
no need to mention the State in its
capacity as employer. Secondly, the principles of common law review
as encapsulated in
section 6
of the
Promotion of Administrative
Justice Act, 3 of 2000
, and their application are confined to
administrative action. If the applicant was correct it would mean
that the LRA contains
an entirely new cause of action in law and that
the legislature neglected to devote a single section in the act to
the scope, extent
and nature of such a novel right despite detailed
provisions dealing with other rights created by the statute. It is
inconceivable
the legislature would have intended to create such an
unprecedented right without such elaboration.
[19]
I further agree with the
respondent in relation to the application of
s 158(1)(a)(iii)
that the applicant has failed to identify a particular object of the
LRA which such an order might give effect to. That is
the very least
the applicant should have done. Further, it is apposite to repeat
what this court said in
Mould
v Roopa NO & Others
[2]
,
namely that
section 158(1)(a)(iii)
“is not an omnibus to ride
roughshod over well-established principles of the common law, labour
law and practice”.
[3]
Lastly, the applicant failed to identify which provision of the LRA
or any other statute the respondent had not complied with that
might
warrant any relief been granted under
s158(1)(b)
of the LRA.
[20]
In conclusion, the applicant
and its members are not without remedies but those remedies are not
embodied in rights but lie in persuading
an employer through
protected strike action, they should be granted such rights. In so
far as pursuit of such a strategy has been
unsuccessful to date, the
applicant cannot expect the court to create remedies to compensate
for such failures. In considering
the applicant’s statement of
claim, I have tried to give it the broadest and most generous
interpretation and have considered
every section of the LRA the
applicant relies on, because even if one properly pleaded cause of
action can be found in the statement,
then the exception should be
dismissed.
[4]
However, I have been unable to find any recognised cause of action
which has been pleaded or, in the case of a claim such as the
claim
for relief under
s 158(1)(a)(iii)
or (b), there is no factual
particularity to support such a claim. Typically, when such
exceptions are raised, the deficiency lies
in the failure to plead
sufficient facts to support a recognised cause of action. In this
instance, the more fundamental problem
is that, in the main, the
applicant has not even articulated a recognised legal claim. The
legal claims it makes are claims in
law that are not yet established
rights.
[21]
On the issue of costs, I am satisfied that the applicant had an
opportunity to decide whether or not to oppose the exception
and
whether it should rather seek to amend its statement of claim.
Instead, it vigorously defended a manifestly deficient statement
of
claim and caused the respondent to incur unnecessary costs. Under
these circumstances there is no reason why the applicant should
not
pay the respondent’s costs despite the existence of an ongoing
relationship between the parties.
Order
[1]
The exception is upheld.
[2]
The applicant’s statement of claim is dismissed with costs.
___________________
R
Lagrange
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
M Nhlapo of BIFAWU
RESPONDENT:
L Frahm-Arp of Fasken Martineau.
[1]
See Chapter
III of the LRA.
[2]
(2002) 23
ILJ
2076 (LC)
[3]
At 2080,
para [9].
[4]
See
Erasmus:Superior Court
Practice
, (Juta), Revision
Service 37, 2011,
D E van
Loggerenberg et al
at
Rule-B1-p151-2
“
In order to succeed an
excipient has the duty to persuade the court that upon every
interpretation which the pleading in question,
and in particular the
document on which it is based, can reasonably bear, no cause of
action or defence is disclosed; failing
this, the exception ought
not to be upheld”. See also cases cited thereat at fn 6.