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[2017] ZALCD 25
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SACTWU and Others v Capacity (Pty) Ltd and Others (D659/15) [2017] ZALCD 25 (18 December 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Reportable
Case
no: D659/15
In
the matter between:
SACTWU
First Applicant
MSOMI
& 273 OTHERS
Second and further Applicants
and
CAPACITY
(PTY)
LTD
First Respondent
TRANSMAN
(PTY)
LTD
Second Respondent
CAPITAL
OUTSOURCING (PTY)
LTD
Third Respondent
EDCON
(PTY)
LTD
Fourth Respondent
Heard:
8 November 2017
Delivered:
18 December 2017
JUDGMENT:
POINT IN LIMINE/CONDONATION
GUSH
J
[1]
The
applicants in this matter filed a statement of claim with this Court
claiming that the second and further applicants had been
unfairly
dismissed by the respondents arising from a strike. The application
is opposed by the respondents and the pleadings in
the matter are
closed. A pre-trial conference has been held and the parties have
filed the minute. As a result, trial dates had
been allocated.
[2]
Before
the trial was due to commence, and arising from a point
in
limine
raised by the respondents in the reply to the statement of claim and
also in the pre-trial minute, in response to an application
brought
by the respondents, the parties agreed that the point
in
limine
issue should be dealt with prior to the trial commencing.
[3]
The
preliminary issue raised by the respondents, and the subject of this
judgment, is the averment by the respondents that the applicants
had
filed their statement of claim out of time.
[4]
Accordingly,
it was averred that in the absence of condonation being granted, the
Court did not have jurisdiction to determine the
main application.
The applicants, in turn averred, that in the light of the provisions
of
Section 191(11)
of the
Labour Relations Act 66 of 1995
, the
referral to the court was within the time limits and condonation was
unnecessary.
[5]
The
parties agreed that in order to fully and properly deal with the
point
in
limine
,
the applicants would file an application for condonation, in so far
as it may be necessary, to be dealt with together with the
point
in limine
.
[6]
This
application for condonation was duly filed and was opposed by the
respondents.
[7]
This
judgment deals only with the respondents’
point
in limine
and the applicants’ application for condonation.
[8]
It
is necessary to set out a brief chronology and summary of the facts
relevant to the dispute surrounding the averred late filing
by the
applicants of their statement of claim. The facts and chronology are
common cause:
a.
the
applicants were dismissed in December 2014;
b.
the
applicants referred a dispute concerning their dismissal to the
Commission for Conciliation, Mediation and Arbitration (CCMA)
on 19
January 2015. The CCMA decided that the referral was outside the
statutory 30-day period and marked the referral “incomplete”.
The CCMA notified the applicants that an application for condonation
was required in order for the CCMA to consider the referral.
c.
The
applicants duly filed an application for condonation on 10 March 2015
and the CCMA enrolled the condonation application for
consideration
on 16 April 2015. The condonation application was not opposed.
d.
On 16 April
2015, the CCMA granted condonation for the late referral and at the
same time issued a certificate of outcome dated
16 April 2015.
e.
It is
common cause that the applicants referred their dispute to this Court
for consideration within 90 days of the certificate
being issued by
the CCMA.
[9]
The
respondents, relying on the judgment of the Labour Appeal Court in
the matter of
South
African Municipal Workers Union obo Manentza v Ngwathe Local
Municipality and Others,
[1]
(
Manentza)
argued that the referral of the dispute to the Labour Court had to be
made within 120 days after receipt by the CCMA of the referral
of the
dispute for conciliation and that should the dispute be referred to
the court outside this time limit the applicants would
require
condonation for the late referral of the dispute.
[10]
In
the Manentza judgment, the court was required to consider whether a
referral
to arbitration
made within 90 days after the issuing of a certificate of
non-resolution requires the referring party to apply for condonation
where the certificate was issued after the expiry of 30 days and the
referral was made more than 120 days after the dispute was
referred
for conciliation.
[11]
In
concluding that a referral to arbitration had to be made within 120
of the referral to the Court relied on the time limit set
out in
section 191(5)
(30 days) and the 90 days provided for in
section
136(1).
[12]
In
determining the time limits for the referral of disputes for
arbitration the court in the
Manentza
judgment considered firstly the provisions of
Section 191(5)
of the
Act:
‘
If a council or a commissioner
has certified that the dispute remains unresolved, or if 30 days have
expired since the council or
the commission received the referral and
the dispute remains unresolved the council or the commission must
arbitrate the dispute
at the request of the employee…’
[13]
The
Court held that despite the use of the disjunctive “or”
it was required of an employee who intended to refer a dispute
arbitration to do so after 30 days or the issue of a certificate
whichever occurred first.
[14]
The
Manentza
judgment however held that the time period within which the employee
or “any party” was required to refer the dispute
to
arbitration is the 90-day period set out in
section 136(1)
but that
that period commenced from the expiry of the 30 from the date of the
referral of the dispute.
Section 136(1)
provides that the
‘
If
this Act requires a dispute to be resolved through arbitration,
The
Commission must appoint a commissioner to arbitrate that dispute if:
(a)
A commissioner has
issued a certificate stating that the dispute remains unresolved; and
(b)
Within 90 days after the
date on which that certificate was issued any party to the dispute
has requested that the dispute be resolved
through arbitration. (The
section carries on to allow the arbitrator to condone non observance
of that time limit)’ (my emphasis)
[15]
The
Court in
Manentza
however distinguished between
sections 135
and
136
of the Act on the
one hand and
section 191(5)
of the Act on the other.
[16]
In
the
Manentza
judgment, the court relied on the imperative that disputes are
speedily resolved in applying the 90-day period to
section 191(5).
[2]
As for
sections 135
and
136
the court concluded that:
Therefor unlike in
section 135(5)
and
section 136(1)
of the LRA where the legislature has sought to link
the right of referral to arbitration to the conciliation process by
obliging
the Commissioner when the conciliation has failed, or at the
end of the 30 day period or any further period agreed between the
parties to issue a certificate stating whether the dispute has been
resolved and by requiring that such certificate be issued before
a
Commissioner is appointed to arbitrate the dispute, the provisions of
section 191
of the LRA contain no such requirements. Nor has the
legislature in
section 191
of the LRA sought to link the validity of
the referral to arbitration and the jurisdiction of the CCMA or a
bargaining council
to arbitrate the dispute to the certificate of the
outcome of the conciliation
.
[3]
[17]
However,
in this matter the Court is required to consider the circumstances
and time limits prescribed by the Act in relation to
a referral to
the Labour Court
(section 191(11))
for adjudication and not as was
the issue in the
Manentza
case a referral to arbitration. The issue is this matter concerns the
Labour Courts jurisdiction to adjudicate disputes.
[18]
Section
191(11)
provides that disputes may be referred to the Labour Court
90- days after the dispute is certified to be unresolved.
[19]
The
90-day period within which a dispute may be referred for adjudication
and the basis upon which the Court has jurisdiction is
only dealt
with in
section 191(11).
to arbitration and stipulates that the 90
period runs from the issuing of the certificate.
[20]
Section
191(5)
does not deal with the time limits for referrals to
adjudication.
[21]
The
provisions of
section 191(11)
are abundantly clear and unequivocal
when dealing with the time limits applicable to referrals to the
Labour Court:
‘
The referral, in terms of
subsection (5), of a dispute to the Labour Court for adjudication,
must be made within 90 days after the
council or (as the case may be)
the commissioner has certified that the dispute remains unresolved.’
[22]
The
express wording of the section does not permit an interpretation that
is at odds with the plain and unambiguous meaning of the
section.
[23]
The
court
a
quo
in
the
Manentza
case had mistakenly relied on the provisions of
section 191(11)
in
determining the 90 time limit applicable to referrals of disputes to
arbitration as opposed to
section 136(1)
which deals with referrals
to arbitration.
[4]
The LAC in
its judgment in
Manentza
does not consider nor interpret the provisions of
section 191(11)
but
relied on the 90 day limit set out in section136(1). The
Constitutional Court had, in the
F&J
Electrical
.
[5]
matter, prior to the Manentza judgment dealt with
Section 191(11)
and
its relevance to conferring jurisdiction on the Labour Court when
dealing with referrals of disputes for adjudication.
[24]
After
having reserved judgment in this matter the parties filed further
submissions. These representations, in essence added nothing
new
added to the argument presented by the parties when the matter was
heard save for the Second Respondent’s “Submissions
in
respect of
F&J
Electrical
.”
[6]
[25]
In
his Submissions on behalf of the second respondent, “In respect
of
F&J
Electrical,
”
Mr Bosch referred to that part of the judgment where the Court said:
In
terms of
section 191(5)
read with
section 191(11)(a)
of the LRA an
employee must, within 90 days from the date of the expiry of 30 days
from the date of receipt by the bargaining council
or CCMA, as the
case may be, of the referral of a dismissal dispute for conciliation,
refer the dispute to the Labour Court for
adjudication or request the
bargaining council or CCMA to arbitrate the dispute. Whether a
dispute qualifies to go to arbitration
or adjudication is governed by
the provisions of
section 191(5).
[7]
[26]
This
Mr Bosch cites this as authority for the proposition that the 90-day
period in respect of
section 191(11)
despite the express reference to
“90 days after the commissioner has certified that the dispute
remains unresolved”
runs from the expiry of 30 days from the
referral.
[27]
This
passage however, given what the Court held later in the judgment in
respect of the Courts jurisdiction to hear referrals, appears
to deal
specifically with
Section 191(5)
in the context of the circumstances
that determine whether a matter is to be referred either to the CCMA
or a Council for arbitration;
or to the Labour Court for
adjudication.
It
is not necessary to go into details about the provisions of
section
191(5).
It is sufficient to say that, as a general proposition,
whether a dispute qualifies for adjudication or arbitration depends
upon
what the employee alleges is the reason for dismissal.
[8]
[28]
When
the Constitutional Court turns to deal with the Labour Court’s
jurisdiction to adjudicate a dispute it holds:
Before the Labour Court may adjudicate
a dispute, it, like any other court, should first satisfy itself that
it has jurisdiction.
In this case the Labour Court failed to do so.
The certificate of
non-resolution was issued on 3 March 2009.
In terms of
section 191(5)
of the LRA the employees were obliged to
refer the dispute to the Labour Court or to the bargaining council or
CCMA, as the case
may be, within 90 days from 3 March 2009.
The
Labour Court would not have jurisdiction to adjudicate the dispute if
the dispute was referred to the Labour Court after the
expiry of 90
days from that date
unless
the employees applied for condonation and showed good cause.
[9]
(My emphasis)
[29]
In
this judgment, the Constitutional Court has clearly relied on the
provisions of
Section 191(11)
as determining that the date upon which
the period of 90-days runs, is from the date of the issuing of the
certificate in order
to establish jurisdiction.
[30]
The
applicants’ response to the Respondents’ application
in
limine
is simply that the referral was made with the time limit as set out
in
section 191(11)
, viz. 90-day from the issue of the certificate
that the dispute has not been resolved, and that the Court
accordingly has jurisdiction
to hear the matter.
[31]
The
second point argued by the applicants is that it was only once the
CCMA had condoned the late filing of the referral of the
dispute that
the 30-day period could commence running. As the certificate was
issued immediately after condonation was granted
the 90-day period
commenced on that day. Accordingly, as the referral was made within
90 days it was not out of time.
[32]
It
certainly would appear that a requirement that a matter be referred
for adjudication before condonation for the late referral
of a
dispute has been granted may lead to the absurd situation where
matters are referred to the court before the CCMA or bargaining
council has established its own jurisdiction.
[33]
In
the circumstances, I am satisfied that the referral of the dispute to
this Court by the applicants complied with the time limits
and
provisions of
section 191(11)
and that the court accordingly has the
jurisdiction to deal with the matter. It follows therefore that it is
not necessary for
me to consider the applicants’ application
for condonation.
[34]
As
far as costs are concerned there is no reason why costs should not
follow the result.
[35]
For
these reasons, I make the following order:
a.
The
respondents’ point
in
limine
is dismissed with costs.
________________
D H Gush
Judge of the Labour Court
of South Africa
APPEARANCES
FOR
THE APPLICANTS:
Adv. P Schumann
Instructed by: Brett
Purdon Attorneys
FOR
THE FIRST RESPONDENT:
C Kirchmann: Kirchmanns Inc.
FOR
THE SECOND RESPONDENT:
Adv.
C Bosch
Instructed by Kirchmanns
Inc.
[1]
[2015] 9 BLLR 894 (LAC).
[2]
At Paragraph 33.
[3]
At Paragraph 37.
[4]
Manentza
at paragraph18.
[5]
F
& J Electrical CC v MEWUSA obo E Mashatola and
Others
2015 (4) BCLR 377 (CC).
[6]
F
& J Electrical CC v MEWUSA obo E Mashatola and
Others
2015 (4) BCLR 377 (CC).
[7]
At
paragraph 14
[8]
At Paragraph 15
[9]
At Paragraph 29.