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[2018] ZALCJHB 142
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Association of Mineworkers and Construction Union (AMCU) and Others v Prestprops 1315 CC and Another (JS809/16) [2018] ZALCJHB 142 (29 March 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
CASE NO: JS 809/16
In
the matter between:
ASSOCIATION
OF MINEWORKERS
AND
CONSTRUCTION UNION
(AMCU)
First Applicant
SEKHOKHO,
A & 11 OTHER AMCU
MEMBERS
WHOSE NAMES APPEAR
ON
ANNEXURE “A”
Second
to Further Applicants
and
PRESTPROPS
1315
CC
First Respondent
UNISPAN
HOLDINGS (PTY)
LTD
Second Respondent
Heard:
19 October 2017
Delivered:
29 March 2018
Summary:
When the applicants acquire the knowledge that a different entity was
required to have been cited as the second respondent
after they had
filed their statement of claim, it is not necessary for the
applicants to refer their unfair dismissal dispute against
that
entity to conciliation before launching an application for that
entity to be joined as a respondent as envisaged in section
200B of
the LRA.
JUDGMENT
Lallie,
J
[1]
The second to further applicants who will be referred to as the
applicants in this judgment were employed to work at the first
respondent’s premises. Pursuant to the termination of the
employment relationship in January 2015, the first applicant,
who
will be referred to as the AMCU in this judgment, instituted an
unfair dismissal claim against the first and second respondent.
In
the statement of claim the applicants contended that they were
employed by both respondents, alternatively, that they were employed
by the first respondent and that the second respondent is liable for
breaches of the Labour Relations Act
[1]
(the LRA) and the Basic Conditions of Employment Act (the BCEA) by
the first respondent by the operation of section 200B of the
LRA. In
the response to the statement of claim, the second respondent denied
that section 200B of the LRA applied to it and alleged
that it was
Augusta, its subsidiary, that had the commercial relationship in
issue with the first respondent. Based on the response,
the
applicants launched this application to have Augusta Steel (Pty) Ltd
joined as the third respondent in these proceedings. They
further
sought leave to amend their statement of claim to include reference
to Augusta Steel (Pty) Ltd. The application is opposed
by Augusta
Steel (Pty) Ltd which will be referred to as Augusta in this
judgment.
[2]
Augusta opposes this application on the grounds that the applicants
failed to refer the unfair dismissal dispute against it
to
conciliation before it was referred to this court. It was argued on
behalf of Augusta that when the referral between the applicants
and
the respondents was made, Augusta should have been incorporated into
LRA Form 7.11. It was further argued that in the absence
of a
referral to conciliation this court lacks jurisdiction over the
dispute. Augusta relied on
National Union of Metal Workers of
South Africa v Intervalve (Pty) Ltd and others
(2015) 36 ILJ 363
(CC). The argument was further supported by the decision in
Themba
Big Save CC
2016 10 BLLR 1016
(LAC).
[3]
The applicants denied that they were obliged to refer the dispute
against Augusta to conciliation before approaching this court.
Their
application for joinder is based on section 200B of the LRA which
provides as follows:
‘
(1) For the purposes of this
Act and any other employment law, ‘employer’ includes one
or more persons who carry on
associated or related activity or
business by or through an employer if the intent or effect of their
doing so is or has been to
directly or indirectly defeat the purposes
of this Act or any other employment law.
(2) If more than one person is held to
be the employer of an employee in terms of subsection (1), those
persons are jointly and
severally liable for any failure to comply
with the obligations of an employer in terms of this Act or any other
employment law.
[4]
The applicants sought to rely on
Themba Big Save (supra)
paras
29 and 32 where the court held as follows:
‘
[29]
Having said that a referral for conciliation is indispensable and a
precondition to Commissioner’s
or the Labour Court’s
jurisdiction over unfair dismissal disputes means that if a party is
not part of the conciliation proceedings
it cannot be joined at a
later stage. The question that arises however is whether the general
principle is applicable in a case
a where a dismissal employee,
having referred his/or employer to conciliation for an unfair
dismissal dispute, later discovers
that his/her employer has changed
because the business in which they were employed has changed hands.
[32] In
this matter, the employees allege that the appellant has taken over
the business of the former
employer and for that reason they sought
to join the appellant. Since the appellant is alleged to have stepped
into the shoes to
the old employer it may be joined to the
proceedings. I therefore agree with the court a quo’s
conclusion that in the context
of an alleged s197 transfer, a
successful applicant would have to hold the transferee accountable
because not only has that
transferee an interest in the outcome of
the dispute, it may be held liable to satisfy the relief, if any,
that is granted against
the old employer.
[5]
The general rule is expressed in
Intervalve
(supra) and
referred to with approval in
Themba Big Save
(supra). It is
that conciliation is a precondition to the Labour Court’s to
jurisdiction over unfair dismissal disputes.
A party that was not
part of the conciliation proceedings cannot be joined at a later
stage However, in
Themba Big Save
(supra) the Labour Appeal
Court held that there are exceptions to the rule and accepted that
when a dismissed employee who discovered
after he or she has referred
an unfair dismissal dispute that his or her employer has changed by
operation of section 197 of the
LRA, the need to refer the old and
new employer to conciliation can be dispensed with as referral of one
suffices.
[6]
The applicants sought to rely on
Themba Big Save
(supra) and
argued that as they got to know after they had filed their statement
of claim that Augusta was their employer as envisaged
in section 200
B of the LRA there was no need to refer their dispute against Augusta
to conciliation. It was argued on behalf of
Augasta that the need to
refer the dispute could not be dispensed with. It was further argued
that the applicants’’
reliance on
Themba Big Save
was misplaced as in the matter at hand the business did not change
hands.
[7]
I am not convinced that the decision in
Themba Big Save
(supra) can only be relied on in cases where a business has changed
hands. I am of the view that it acknowledges that there are
exceptions to the general rule laid down in
Intervalve
(supra). The purpose of section 200B of the LRA is to protect the
right of employees when there is more than one employer who can
be
held responsible for the violation their rights.
[8]
In
Association
of Mineworkers and Construction Union and Others v Buffalo Coal
Dundee (Pty) Ltd and Another
[2]
the court stated the purpose
of section 200B as follows:
‘
Section 200B was enacted to
prevent collusion by two or more persons involved in an associated or
related business by or through
an employer in order to undermine the
provisions of the Act or any employment law.’
The
argument on behalf of Augusta of the absence of collusion does not
exclude Augusta from being an employer as envisaged in section
200B.
Augusta pleaded to the applicant’s statement of claim and
explained its role in the relationship between the applicants’
and the respondents as that of an employer within the meaning of
section 200B. The applicants could not reasonably have known that
the
second respondent owned Augusta and that since 2014 the second
respondent was incorporated into Augasta. The respondent also
pleaded
that the second respondent ought to have been Augusta.
[9]
The applicants got to know after they had filed their statement of
claim that August should have been the second respondent
and given
the nature of the relationship between the respondents and Augusta,
the applicants were not required to refer their unfair
dismissal
dispute against Augusta to conciliation before this application for
joinder was launched.
[10]
In the premises the following order is made:
Order:
1.
Augusta
Steel (Pty) Ltd is joined as the third respondent in these
proceedings.
2.
The
Applicants are granted leave to amend their statement of claim to
include references to Augusta Steel (Pty) Ltd.
Z
Lallie
Judge
of the Labour Court of South Africa
Appearances
:
For the Applicant:
Advocate Itzkin
Instructed by:
Larry Dave Attorneys
For the First Respondent:
Advocate Venter
Instructed by
Bregman Moodley Attorneys
[1]
66 of 1995
[2]
[2006] 9 BLLR 885
(LAC)