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[2019] ZALCJHB 150
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South African Municipal Workers Union and Others v Midvaal Local Municipality (J1552/17) [2019] ZALCJHB 150 (2 June 2019)
in
the labour court of South Africa, JOHANNESBURG
Not Reportable
case
no: J 1552/17
In
the matter between:
SOUTH
AFRICAN MUNICIPAL WORKERS UNION
First Applicant
DAVID
DE
BRUIN Second
Applicant
MOKETE
TSOTETSI
Third Applicant
MICHAEL
MNISI
Fourth
Applicant
ROBERT
NDUBANE
Fifth Applicant
DUMISANE
MASEKO
Sixth Applicant
MOOSA
ALFONSO
Seven
Applicant
and
MIDVAAL
LOCAL
MUNICIPALITY
Respondent
Heard:
13 December 2017
Order:
13 December 2017
Date
of Reasons: 02 June 2019
REASONS
FOR ORDER
MAHOSI.J
Introduction
[1]
This matter served before me on 13 December 2017 wherein the
applicants
sought as order in the following terms:
‘
1.
Compelling the respondent to consider the appeal lodged by the
applicants on 24 May 2017;
2.
Declaring that the applicants are entitled to their remuneration from
the date of dismissal up
until the appeal is determined;
3.
Order the respondent to pay the applicants’ remuneration in
accordance with paragraph 2 above
pending the determination of the
appeal;
4.
Ordering the respondent to pay costs of this application.’
[2]
Having determined the issues, I made an order in terms of which I
found
that this Court lacks jurisdiction to hear this matter.
Subsequent thereto, the applicants requested reasons for the
aforesaid
order and these are my reasons.
Background
[3]
A
Disciplinary Procedure Collective Agreement
[1]
(collective agreement) was entered into between various parties
including the first applicant (SAMWU) and the South African Local
Government Association (SALGA), an employee organisation of which the
respondent form part. It is this collectiove agreement that
regulates
disciplinary actions between the parties.
[4]
Allegations of misconduct were levelled against the individuial
applicants
during their employment with the respondent, which
allegations related to,
inter alia,
damage to municipal
property, intimidation, violence and wielding of dangerous weapons
during the course of an unprotected strike.
A disciplinary hearing
that was presided by an external chairperson was convened and on 22
May 2017, the individual applicants
were found guilty of the
misconduct. As a result, the chairperson recommended a sanction of
summary dismissal. The Municipal Manager
confirmed the sanction of
summary dismissal and issued a dismissal notice to each individual
applicant.
[5]
The applicants sent a letter to the respondent through their legal
representatives
stating their intention to exercise their right to
appeal the outcome of the disciplinary hearing. However, the
respondent’s
stance was that the appropriate appeal procedure
in this case was to refer the matter directly to the bargaining
council as the
nature of the proceedings do not support an internal
appeal.
[6]
Following a flurry of correspondence ensued between the parties in
which
the parties stances were canvassed, the applicants brought this
application seeking an order to compel the respondent to consider
the
appeal they lodged on 24 May 2017, declaring that the individual
applicants are entitled to remuneration from the date of dismissal
until the appeal is determined and ordering such payment.
[7]
In opposing this application, the respondent contended that this
Court
lacked jurisdiction to entertain this matter. In support
of its contention, the respondent submitted that, to an extent that
this application was brought in terms of section 158(1)(h) of the
LRA, the applicants notice of motion does not identify any decision
or act performed by the respondent capable of review, nor does it set
the founding affidavit set out any grounds of review.
Legal
principles
[8]
Section 24
of the Labour Relations Act
[2]
(LRA) governs disputes regarding collective agreements as follows:
‘
24. Disputes
about collective agreements
(1)
Every collective agreement, excluding an agency shop agreement
concluded in terms of section
25 or a closed shop agreement concluded
in terms of section 26 or a settlement agreement contemplated in
either section 142A or
158(1)(c), must provide for a procedure to
resolve any dispute about the interpretation or application of the
collective agreement.
The procedure must first require the parties to
attempt to resolve the dispute through conciliation and, if the
dispute remains
unresolved, to resolve it through arbitration.
(2)
If there is a dispute about the interpretation or application of a
collective agreement,
any party to the dispute may refer the dispute
in writing to the Commission if-
(a)
the collective agreement does not provide for a procedure as required
by subsection (1);
(b)
the procedure provided for in the collective agreement is not
operative; or
(c)
any party to the collective agreement has frustrated the resolution
of the dispute in terms
of the collective agreement.
(3)
The party who refers the dispute to the Commission must satisfy it
that a copy of the referral
has been served on all the other parties
to the dispute.
(4)
The Commission must attempt to resolve the dispute through
conciliation.
(5)
If the dispute remains unresolved, any party to the dispute may
request that the dispute
be resolved through arbitration
(6)
If there is a dispute about the interpretation or application of an
agency shop agreement
concluded in terms of section 25 or a closed
shop agreement concluded in terms of section 26, any party to the
dispute may refer
the dispute in writing to the Commission, and
subsections (3) to (5) will apply to that dispute.
(7)
Any person bound by an arbitration award about the interpretation or
application of section
25(3)(c) and (d) or section 26(3)(d) may
appeal against that award to the Labour Court.
(8)
If there is a dispute about the interpretation or application of the
settlement agreement
contemplated in either section 142(A) or
158(1)(c), a party may refer the dispute to a council or the
Commission and subsections
(3) to (5), with the necessary changes,
apply to that dispute.’
[9]
The Labour
Appeal Court (LAC) in
Rukwaya
and Others v Kitchen Bar Restaurant
[3]
found the following:
“
The legal basis of
the appellant’s claim is founded on the respondent’s
non-compliance with the collective agreement
… the appellants
were obliged to follow the dispute resolution process provided for in
… the collective agreement.
In terms of s 24 (1) of the LRA,
all collective agreements are required to provide for a procedure to
resolve any dispute about
the interpretation and application of the
collective agreement through conciliation, and if the dispute remains
unresolved, through
arbitration.”
[10]
The applicants contend that the collective agreement is applicable
and paramount and the
fact that the respondent is failing and/or
refusing to hold an internal appeal is in contravention of the
collective agreement.
On the other hand the respondent aver that the
provisions provided for in the collective agreement is inoperative
because this
is a case of impossibility of performance as the process
provides for an internal presiding officer and there is none within
the
respondent that can chair the appeal.
[11]
Therefore it is clear from the papers before me that what is in
dispute is the interpretation
and application of the collective
agreement that governs the relationship between the parties. On
consideration of either version,
this application is doomed to fail.
The applicants’ claim has its basis in the collective
agreement, and therefore section
24 would find application. On any
interpretation of the section 24, a matter in regard to a dispute
relating to the interpretation
and applicability of a collective
agreement has to be conciliated and if not resolved, referred for
arbitration.
[12]
Further, if the respondent’s version is to be accepted, then
the procedures in the
collective agreement were inoperative and then
section 24(2)(b) would become operative, which then means that the
applicants were
to refer the matter to the Bargaining Council for
adjudication. On the other hand, if the applicants’ version is
to be accepted,
then section 24(2)(c) becomes operative, i.e. that
the respondents are frustrating the proceedings and therefore the
matter would
have to be referred to the Bargaining Council for
adjudication.
[13]
It must be said that the submissions of the respondent are
reasonable. The fact that an
external presiding officer was called to
chair the disciplinary hearing is an indication that there was no one
internally that
has the requisite skill and expertise to chair it.
Therefore, if there was no one to chair the initial proceedings, and
there is
no manager that can sit on the appeal, it is reasonable to
find that the provisions of the collective agreement are inoperative.
[14]
The LAC in
Rukwaya
[4]
went on to state that “
the
determination of whether the respondent has contravened the
collective agreement as alleged, calls for its interpretation and
application.”
Therefore,
this matter is nothing other than a dispute on the interpretation
and application of the collective agreement.
This dispute had to be
referred to conciliation and, if remained unresolved, to arbitration,
therefore this Court lacks the jurisdiction
to entertain the matter.
[15]
The Court
should also show its displeasure in being asked to entertain these
kind of applications where clearly the applicants occupy
senior
positions arming them with financial means to approach this Court
with meritless applications. The Court in
Mosiane
v Tlokwe City Council
[5]
stated the following:
“
A worrying trend
is developing in this Court … Some applicants approach this
Court … to have their dismissals declared
invalid and seek
reinstatement orders. In most of such applications, the applicants
are persons of means who have occupied top
positions at their places
of employment. They can afford top lawyers who approach this Court
with fanciful arguments about why
this Court should grant them relief
... An impression is therefore given that some employees are more
equal than others and if
they can afford top lawyers and raise
fanciful arguments, this Court will grant them relief ... All
employees are equal before
the law and no exception should be made
when considering such matters. Most employees who occupy much lower
positions at their
places of employment who either get suspended or
dismissed, follow the procedures as laid down by the
Labour Relations
Act, 66 of 1995
. They will also refer their disputes to the CCMA or
to the relevant Bargaining Council and then approach this Court for
the necessary
relief.”
[16]
This is one such matter. The LRA is clear on what needs to be done
when a dispute arises
from the interpretation and application of a
collective agreement, and yet, in order to circumvent their
dismissals, the applicants
have brought this application.
Unfortunately, the dispute on the interpretation and application of
the collective agreement has
been overtaken by events, which in this
matter is the dismissals of the applicants.
[17]
The Court
in
Gcaba
v Minister of Safety and Security and Others
[6]
said the following:
“
Once
a set of carefully-crafted rules and structures have been created for
the effective and speedy resolution of disputes and protection
of
rights in a particular area of law, it is preferable to use that
particular system. This was emphasised in
Chirwa
by both Skweyiya J and Ngcobo J. If litigants are at liberty to
relegate the finely-tuned dispute resolution structures created
by
the LRA, a dual system of law could fester in cases of dismissal of
employees.”
[18]
This does
not close the door on the applicants. There is a dispute resolution
process available to them if they wish to challenge
their dismissals.
The Court in
EOH
Abantu (Pty) Ltd v CCMA and Others
[7]
stated
as follows:
“
The
applicant will suffer no prejudice should the matter proceed to
arbitration. It will be able to raise the jurisdictional issue
it
would like to and a commissioner will be able to weigh evidence on
the issue (after hearing all the evidence as this is an issue
which
is linked to the merits) and give a binding award. At that stage,
would any party be dissatisfied, it would be able to seek
to review
the award in accordance with the LRA. This will mean that the Labour
Court will have the benefit of the CCMA’s
decision and will not
become involved prematurely in matters. This will prevent a flood of
similar applications.”
Conclusion
[19]
This matter is clearly one in which senior employees wish to flex
their financial muscle
to jump the queue and circumvent the well laid
structures of the LRA. Therefore, the applicants must follow that
which is prescribed
in the LRA in order not to allow a dual system
from forming in our jurisprudence. Since the overtaking of the
dismissals, this
is actually academic and the applicants should
pursue their dispute as an unfair dismissal dispute to the correct
forum.
__________________
D. Mahosi
Judge
of the Labour Court of South Africa
Appearances:
For
applicant: Advocate
E.M. Masombuka
Instructed
by:
Madlela Gwebu Mashamba
Incorporated
For third
respondent: Advocate
Riaz Itzkin
Instructed
by: Cliffe
Dekker Hofmeyr Incorporated
[1]
Index
to pleadings, page 58 to 78
[2]
Act
66
of 1995, as amended.
[3]
(2018) 39 ILJ 180 (LAC).
[4]
Supra
n 3.
[5]
(2009) 30 ILJ 2766 (LC) at paras 15 and 16.
[6]
(2010) 31 ILJ 296 (CC) at para 56.
[7]
(2010) 31 ILJ 937 (LC) at para 16.