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[2018] ZALCJHB 444
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Chemical Energy Paper Printing Wood and Allied Workers Union and Others v Wilson t/a ISW Pale (JS29/14) [2018] ZALCJHB 444 (12 June 2018)
the
labour court of South Africa,
held
at johannesburg
case
no: jS 29/14
Of
interest to other judges
In
the matter between:
CHEMICAL
ENERGY PAPER PRINTING WOOD & ALLIED WORKERS UNION
First
Applicant
MAMPONDO,
R & OTHERS
Second
and Further Applicants
and
MR
IS WILSON t/a ISW PALE
Respondent
Heard
:
11 June 2018
Delivered
:
12 June 2018
Summary:
(absolution from the instance-date of dismissal in dispute-applicants
case premised on being dismissed
in April 2013-respondent claiming to
have dismissed the applicants in May 2017-CCMA referral of dismissal
dispute made on 25 April
2013)
ruling on absolution from
the instance
LAGRANGE
J
[1]
This is a ruling on absolution from the instance. It arises from an
unresolved dispute in
an unfair retrenchment claim referred to this
court.
[2]
Instead of concerning the merits of the main case, it concerns the
narrow issue whether
the individual applicants were dismissed on 15
April 2013.
[3]
If they were dismissed on that date, then the court might have
jurisdiction to hear their
claim because their dismissal would have
taken place before their unfair dismissal dispute was referred to the
CCMA for conciliation.
There would still be other issues to overcome,
such as whether the pleading of unfair dismissal for operational
grounds could be
extended to cover this claim. Alternatively, if they
were dismissed on 15 April, it might have been for an unknown reason
and this
court could refer back to the CCMA to determine that
dispute.
[4]
However, if they were not dismissed on 15 April 2013, or at least
before 25 April 2013,
when the dispute was referred to the CCMA, then
the court would not have jurisdiction to entertain a dispute about
the dismissal
on a later date, because the later dismissal would not
have been referred to conciliation which is a prerequisite for a
referral
to this court in terms of section 157 (4) (a) of the Labour
Relations Act 66 of 1995 (‘the LRA’).
[5]
The dispute about the true date of the dismissal had been an issue
between the parties and
remained an unresolved issue. In the
pre-trial minute, the objection was raised in the form that the
statement of claim did not
plead the basis on which a dismissal on 15
April 2013 amounted to an unfair dismissal for operational grounds.
Indeed, the statement
of claim is silent on that issue. At the
hearing of the matter, the respondent raised the issue which was
implicit in the dispute
over the true date of dismissal. The employer
contended that the real date of dismissal was 7 May 2013, therefore
disputed that
a dismissal took place on 15 April 2013. At the outset
of proceedings it asked for this point to be determined. As it
clearly made
more sense to determine this matter beforehand, the
union agreed though rightly complaining that this objection could
have been
more timeously raised. However, as it ultimately affects
the court’s jurisdiction and was an issue that could be dealt
with
without hearing all the evidence, it made obvious sense to
dispose of the question whether or not the applicants were dismissed
on 15 April 2013 before dealing with other issues.
Application for
absolution
[6]
At the end of the evidence of Ms P Machaba, the respondent asked for
absolution from the
instance, which is the subject matter of this
ruling.
[7]
In summary, Ms P Machaba (‘Machaba’) testified that on 15
April when she and
the other five individual applicants reported for
work, their names were not read out at the 7 am roll call. She
claimed that it
was during the roll call that staff were normally
allocated to their workstations. Nonetheless, they assumed that their
presence
was noted and proceeded to their previous workstations where
they proceeded to work. However, after the morning tea break had
ended
at 9.30 AM, they were told by a supervisor that they would not
be paid for the work they were doing unless they agreed to be paid
on
a so-called ‘stok’ system. In terms of that system, they
would be remunerated for the number of bundles of wood
they cleaned
and packaged rather than receiving a fixed monthly wage.
[8]
On learning this, they stopped working and sought advice from a shop
steward, Mr A Gededza.
After working hours that day, and in the
presence of the individual applicants, he was able to contact a union
official on his
phone. The advice from the union official, which was
undoubtedly correct at the time, was that they should not render
services
if they were not going to be paid for them. A critical
element of this version is that they did no further work since the
end of
the morning tea time on 15 April 2013.
[9]
Machaba’s version was quite at odds with the pleaded version of
the applicants. The
crux of that version is set out in paragraph 3.5
of the statement of claim:
on
Monday, 15 April 2013, when the second and further applicants ordered
for duty, Wilson and informed them that they would henceforth
be
engaged as ‘contractors’ and be paid on the basis of the
number of dropper bundles they were able to produce. The
second and
further applicants did not agree to this. They requested that the
respondent engage with the union on the proposed new
terms of the
enquiry advised them on the effects of the changes. They continued
working but were placed at a different station
from where they
usually worked.
[10]
Machaba could provide an explanation for the discrepancy
between her version and the pleaded version
of events on that day and
also could not explain why the employer would have offered to pay
them for any time worked in May 2013
if they had not done so. She did
agree that an offer of payment had been made on 7 May 2013 and the
payment offer was one that
included, in her case two days wages and
leave pay.
[11]
The test
for granting absolution from the instance is well known. In
Commercial
Stevedoring Agricultural & Allied Workers Union on behalf of Dube
& others v Robertson Abattoir
[1]
the LAC reaffirmed the
general principles applicable to applications for absolution from the
instance:
‘
Absolution
from the instance
[16]
It is important to bear in mind that this appeal is based on a grant
of an order of absolution from the instance. Accordingly,
the test
which must be determined is whether firstly there was a dismissal and
secondly whether the appellant has provided
evidence
which raises a credible possibility that the dismissal in question
fell within the scope of s 187(1)(c) of the LRA. This
approach has
been confirmed by this court in Kroukam v SA Airlink (Pty) Ltd:
“
In
my view, s 187 imposes an evidential burden upon the employees to
produce evidence which is sufficient to raise a credible possibility
that an automatically unfair dismissal has taken place. It then
behoves the employer to prove to the contrary, that is to
produce evidence to show that the reason for the dismissal did not
fall within the circumstance envisaged in s 187 for constituting
an
automatically unfair dismissal .”
[17]
This dictum, which sets out the law insofar as unfair dismissals are
concerned, should be read together with the general legal
position
relating to an application for absolution from the instance at the
end of the plaintiff’s case. In this connection,
the correct
approach was set out by Harms JA in Gordon Lloyd Page &
Associates v Rivera & another as follows:
“
The
test for absolution to be applied by a trial court at the end of a
plaintiff’s case was formulated in Claude Neon Lights
(SA) Ltd
v Daniel
1976 (4) SA 403
(A) at 409 G-H in these terms:
‘
... (W)hen
absolution from the instance is sought at the close of plaintiff’s
case, the test to be applied is not whether
the evidence led by
plaintiff establishes what would finally be required to be
established, but whether there is evidence
upon which a Court,
applying its mind reasonably to such evidence, could or might (not
should, nor ought to) find for the plaintiff.
(Gascoyne v Paul and
Hunter 1917 TPD at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2)
1958
(4) SA 307
(T)).’
This implies that a
plaintiff has to make out a prima facie case — in the sense
that there is evidence relating to all
the elements of the claim —
to survive absolution because without such evidence no Court could
find for the plaintiff (Marine
& Trade Insurance Co Ltd v Van de
Schyff
1972 (1) SA 26
(A) at 37G-38A; Schmidt Bewysreg 4th ed at
91-2). ... The test has from time to time been formulated in
different terms, especially
it has been said that the Court must
consider whether there is ‘evidence upon which a reasonable man
might find for the plaintiff’
(Gascoyne (loc cit)) — a
test which had its origin in jury trials when the ‘reasonable
man’ was a reasonable
member of the jury (Ruto Flour Mills).
Such a formulation tends to cloud the issue. The Court ought not to
be concerned with what
someone else might think; it should rather be
concerned with its own judgment and not that of another ‘reasonable’
person or Court. Having said this, absolution at the end of a
plaintiff’s case, in the ordinary course of events, will
nevertheless
be granted sparingly but when the occasion arises, a
Court should order it in the interest of justice.”
[2]
[12]
Applying the test to the limited evidence canvassed with
Machaba, even if her account is accepted,
despite not being pleaded,
there does not seem to be any evidence that can support the
conclusion that the employer terminated
the applicant’s
employment on 15 April. At best for the applicants, there was a
stalemate in which the employer refused to
accept the tender of their
services except on new terms and they refuse to work except on the
old terms. Neither of the parties
to the employment relationship
purported to accept the conduct of the opposite party as a
repudiation of the contract. At that
stage, the union’s advice
which Machaba claims they accepted, was not to work in the absence of
being paid remuneration (on
the ordinary time based method).
[13]
At the very least, to establish evidence on which a court could
conclude that a dismissal had taken place
at that stage, either the
applicants needed to put the respondent on terms to pay them
according to the previous arrangement, failing
which they would
accept the breach and pursue a claim for unfair dismissal and, or
alternatively contractual damages, or alternatively,
they needed to
lead some evidence of other unequivocal the employer terminating the
relationship. On the evidence led, ignoring
once again what was
pleaded, at best the applicants provided evidence of a potential
unprotected lockout.
[14]
In the circumstances, the respondent must be granted absolution
because the applicants have failed to produce
sufficient evidence on
which a Court could conclude that they were dismissed on 15 April
2013. Consequently, they have failed to
make out a case that could
allow a court to conclude that their referral of an unfair dismissal
dispute on 25 April 2013 was not
premature and that this court might
have jurisdiction, assuming they could also overcome the hurdle
limitations of the pleading
in relation to the dismissal on that
date.
[15]
It is not necessary, specifically to deal with the fact that
Machaba’s version was materially different
from the pleaded
version. This is sometimes the regrettable outcome of an imperfect
extended chain of communication between union
members, the union and
their attorneys who are instructed to run a case
Costs
[16]
Although it became apparent on the day that it made sense to consider
the question as a necessary jurisdictional
one, it could have been
raised at a much earlier stage in the somewhat protracted pre-trial
wranglings of the parties. In the circumstances,
I am not inclined to
grant an order of costs to the respondents.
Order
[1]
The respondent is granted absolution from the instance
[2]
No order is made as to costs.
_____________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
M Makhura of
Cheadle, Thompson & Haysom Inc
RESPONDENT:
H Gerber
instructed by Clarinda Kügel Attorneys
[1]
(2017) 38
ILJ
121
(LAC).
[2]
at 126-7.