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[2019] ZALCJHB 167
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Sifo and Another v Chubby Chick t/a Fourie's Poultry Farm (Pty) Ltd (JS124/19; JS178/19) [2019] ZALCJHB 167 (9 July 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JS 124/19 &
JS 178/19
In the matter between:
FUSI ELIAS
SIFO
First Applicant
FLOSI PULE
LEPHOI
Second
Applicant
and
CHUBBY CHICK T/A
FOURIE’S POULTRY
FARM (PTY) LTD
Respondent
Heard: 25 May 2019
Delivered:
9 July 2019
JUDGMENT
TLHOTLHALEMAJE,
J
[1]
Messrs
Elias Sifo and
Flosi
Lephoi (the first and second applicants) as represented by GIWUSA,
referred separate claims under case numbers JS 124/19
and
JS 178/19 alleging breaches of their constitutional rights under
section 23 of the Constitution, and their rights as contemplated
in
Chapter II of the Labour Relations Act (LRA)
[1]
.
These matters were set down on the same date and were accordingly
consolidated.
[2]
The facts in respect of the claim under case number JS 124/19 as
can be gleaned from the statement of claim are summarised as follows:
2.1.
Sifo was employed by the respondent with effect from 2 February 2013.
He alleged
that at some point of his employment, he was demoted by
the respondent on account of his trade union activities.
2.2.
The respondent asserts that Sifo was demoted for a fair reason as
confirmed in an arbitration
award issued under the auspices of the
CCMA. It is common cause that the arbitration is a subject of pending
review proceedings
under case number JR 2390/16.
2.3.
On 28 September 2018, Sifo was absent from duty. He alleged
that on 25 September 2018,
he had approached the assistant
farm manager (Mr Selepe) with his application for leave of
absence in order to attend proceedings
held at the CCMA under case
number NWKD 1750-18 as a witness. On 27 September 2018, Selepe
informed him that there was a shortage
of employees in his department
and that the leave of absence could not be granted. Sifo nonetheless
attended the CCMA proceedings
on 28 September 2018, and his
contention was that management of the respondent was aware of his
whereabouts, as he was
in the same CCMA proceedings with them.
2.4.
The respondent’s version was however that Sifo and his
co-employee, Mr Gorewang,
approached Selepe in the morning of
27 September 2019, to seek leave of absence. In view of the
company’s leave
policy, which required at least two days’
prior notice, Selepe advised Sifo and Gorewang to approach their
trade union GIWUSA
so that it could submit a special application for
leave of absence.
2.5.
On
28 September 2018, Gorewang reported for duty whilst Sifo
was absent. Upon his return, Sifo was charged with
inter
alia
, a
refusal to obey instructions and absence without authorisation.
Following a disciplinary enquiry, Sifo was issued with a final
written warning.
[2]
2.6.
Aggrieved with the sanction, Sifo referred an alleged unfair labour
practice dispute to
the CCMA under case number NWKD 2947-18. The
appointed Commissioner had in terms of an arbitration award issued on
12 February 2018,
found that the final written warning
issued did not constitute an unfair labour practice.
2.7.
Sifo thereafter referred another dispute to the CCMA related to
freedom of association.
A certificate of outcome was issued on
5 November 2018, and a statement of
claim was delivered on 2 March 2019.
[3]
In his
statement of claim, Sifo
alleged
that
the charges against him and the subsequent final written warning
issued to him in the light of the facts outlined elsewhere
in this
judgment constituted an infringement of his rights under the
provisions of section 5
[3]
of
the LRA and the provisions of section 23(1) and 39(2) of the
Constitution of the Republic
[4]
.
In this regard, he alleged that:
3.1.
The instruction and/or the prohibition of an employee from attending
proceedings at the
CCMA offends the spirit, purport and objective of
the bill of rights in that it [unjustifiably] limits his right to
fair labour
practice in terms of the provisions of section 23 of the
Constitution of the Republic.
3.2.
The charges against him were discriminatory as they were intended to
dissuade him from
exercising his right to attend the proceedings at
the CCMA in contravention of the provisions of section 5(1) and
(2)(b)
of the LRA.
3.3.
He further contends that charges against him constituted an
infringement of the provisions
of section 5(2)(c) of the LRA, in
that, they were prejudicial to him on basis that the respondent had
no authority in terms of
the provisions of subsection 2(c)(iv) of the
LRA to instruct him not to attend the CCMA proceedings.
[4]
The respondent in its statement of defence raises two preliminary
points
viz res judicata
and lack of jurisdiction on the basis
that the issues raised in the statement of claim were not referred
for conciliation. In this
regard, it was submitted that:
4.1.
Sifo had referred a dispute to the CCMA under the provisions of
section 186(2)(b) of the
LRA. An arbitration award was issued on
12 February 2019 under case NWKD 2947/19 dismissing the
referral.
4.2.
Sifo has however referred the same facts to this Court for
adjudication under the guise
of a breach of a protected right. In the
respondent’s view, Sifo has not laid any factual basis for that
claim. The respondent
further contends that Sifo now seeks to obtain
relief from any alternative forum after being unsuccessful at the
CCMA, and that
forum shopping should be discouraged.
4.3.
The respondent further submitted that this Court lacked jurisdiction
to adjudicate the
dispute. In this regard, it was further submitted
that conciliation was a
pre-condition
for this Court to
adjudicate a dispute and, and that the
pre-condition
in
this case
had not been satisfied as the dispute that was
referred for conciliation pertained to
freedom of association,
whilst his claim before the Court was in respect of another issue
pertaining to infringements of his rights.
[5]
The background to the dispute under case number JS 178/19 is
summarised
as follows:
5.1.
Lephoi commenced his employment with the respondent on
10 October 2013. Despite
not being an elected or recognised
shop steward, he was appointed by GIWUSA to represent its members
during disciplinary enquiries
at the workplace.
5.2.
At some point, Lephoi was appointed to represent a fellow employee in
a disciplinary enquiry.
He alleged that he was approached by the
assistant farm manager (Mr Jacobus van der Bergh), who enquired from
him whether the employee
facing discipline would pay his (Lephoi’s)
wages. Moreover, subsequent to the disciplinary enquiry, an amount of
R36.99 was
deducted from Lephoi’s remuneration.
5.3.
The respondent denied these allegations and submitted that Lephoi had
in fact made an application
for unpaid leave, which application was
processed and an amount of R36.99 was deducted as a result.
5.4.
Lephoi subsequently referred an unfair labour practice dispute to the
CCMA under case number
NWKD 2216-18. He however withdrew that
referral on 30 October 2018. The respondent contends that
the withdrawal followed
the settlement of the dispute by way of
payment of the deductions of R36.99 initially made to his salary,
after it also became
clear at those proceedings why he sought to take
leave.
5.5.
On 10 October 2018, Lephoi referred another dispute to the
CCMA and sought the
CCMA to resolve a dispute concerning freedom of
association. On 5 November 2018, the CCMA issued a
certificate of non-resolution.
[6]
On 2 March 2019, Lephoi referred his claim to this Court
and
contends that the conduct of the respondent in respect of the
deduction
was intended to dissuade Lephoi from
representing his colleagues
in breach of the provisions of
section 5 of the LRA.
[7]
The respondent raises the same preliminary points of
res judicata
and lack of jurisdiction as under case number JS 124/19.
Evaluation:
Issue
of Jurisdiction and res judicata:
[8]
In respect of Sifo’s claim as currently before the Court, and
emanating
from the common cause facts, he was charged with misconduct
related to refusing to obey a lawful instruction and absenteeism, as
he took leave without authorisation. He had without leave of absence,
failed to report for duty and instead, attended CCMA proceedings.
He
was subsequently issued with a final written warning for his
troubles, which was confirmed by the CCMA as not constituting an
unfair labour practice. He has since launched a review application in
that regard, and the matter is pending before this Court.
[9]
Insofar as
the respondent had raised a defence of
res
judicata
to Sifo’s claim, in
Molaudzi
v S
[5]
,
it was
stated that;
“
Res judicata
is the legal doctrine that bars continued litigation of the same
case, on the same issues, between the same parties. Claassen defines
res judicata
as—
“
[a] case or matter
is decided. Because of the authority with which in the public
interest, judicial decisions are invested, effect
must be given to a
final judgment, even if it is erroneous. In regard to
res
judicata
the enquiry is not whether the judgment is right or wrong, but simply
whether there is a judgment.””
[6]
And,
“
The
underlying rationale of the doctrine of
res
judicata
is to give effect to the finality of judgments. Where a cause of
action has been litigated to finality between the same parties
on a
previous occasion, a subsequent attempt by one party to proceed
against the other party on the same cause of action should
not be
permitted. It is an attempt to limit needless litigation and ensure
certainty on matters that have been decided by the courts.
”
[7]
[10]
In the light of the common cause facts, the issue in relation to the
claim before this
Court is how and when did the above allegations of
misconduct that resulted in a final written warning, morph into the
respondent’s
conduct being illegal, unlawful, discriminatory,
an affront on Sifo’s constitutional rights to his freedom of
movement, dignity,
privacy, and a violation of his rights under the
provisions of section 5 of the LRA?
[11]
It is
accepted that different causes of action may emanate from the same
set of facts
[8]
. The contents of
the statement of case are however convoluted and it is difficult to
comprehend what the basis of the claim is.
Elaborate and tedious
references were made to provisions of section 23(1) of the
Constitution, section 5 of the LRA, and the respondent’s
leave
policy. It is not clear from the papers as to how his claim fits into
those provisions.
[12]
To the extent that he had claimed a breach of his constitutional
right to fair labour practices,
the fact of the matter remains that
he had already utilised the provisions of section 186(2) (b) of the
LRA, and his review application
in the light of an unfavourable
arbitration award is pending before this Court.
[13]
Sifo’s
reliance on the provisions of section 5 of the LRA
[9]
is equally misplaced. The fact that section 5(1) of the LRA prohibits
discrimination against an employee for exercising any right
conferred
by the Act does not mean that it extents to employees seeking to
testify at CCMA proceedings as witnesses. That is not
the purpose of
that provision, and in any event, a basis for any discrimination
claim was not laid in the pleadings. If an employee
seeks to testify
on behalf of a fellow employee at arbitration proceedings before the
CCMA, the employer’s procedures in
regards to leave of absence
must be followed. An employee cannot just fail to attend to his or
her duties and attend CCMA proceedings
without seeking leave of
absence. If for whatever reason the employer refuses to release a
witness to testify at CCMA proceedings,
it is for the CCMA to issue a
subpoena under the provisions of section 142(1) of the LRA to secure
that witness.
[14]
Reliance on section 5(2)(b) of the LRA is clearly misplaced as those
provisions are irrelevant
to his case. To the extent that there is
reference to ‘
participation in any proceedings in terms of
this Act’,
even if this was extended to participating
in arbitration proceedings as a witness, I have already made
conclusions in that regard
as to what is required of an employee.
[15]
Any further suggestion by Sifo that the provisions of section 5(2)(c
) of the LRA are applicable
to him as the respondent had prejudiced
him by disciplining and issuing him with a final written warning
because he was not guilty
when he failed to attend to his duties and
had attended at the CCMA without leave of absence, is clearly red
herring. An employer
is within its rights to demand employees be at
the workplace when they are supposed to be, as this right emanates
from the parties
contractual obligations. There is nothing
prejudicial if an employer demands that an employee complies with its
leave policies
before taking leave of absence.
[16]
As to how disputes related to the interpretation of the respondent’s
leave policy
can end up in this Court for adjudication is not clear,
and I fail to appreciate the relevance of this policy insofar as this
dispute
is concerned.
[17]
In the end however, it is clear as contended on behalf of the
respondent, that is
a classic case of forum shopping, and
Sifo’s approach to litigation is that of one size fits all.
This cannot be permissible.
To the extent that the review application
in respect of the final written warning arising from the same set of
facts is pending
before this Court, effectively the matter is
lis
pendens
rather than being
res judicata
, and Silo ought to
pursue that review application.
[18]
It is trite
that this Court would lack jurisdiction in instances where a dispute
was not referred for conciliation. This is in line
with the
principles set out in
National
Union of Metal Workers of SA v Intervalve (Pty) Ltd
[10]
.
It
is further accepted as can be extrapolated from
September
and Others v CMI Business Enterprise CC
[11]
that
the parties are not bound by the categorisation of the dispute in the
certificate of outcome. Be that as it may, if a party
refers a
dispute to this Court that is not in sync with what was referred for
conciliation or characterised on the certificate
of outcome, at most,
an attempt needs to be made in the statement of case, to lay a
factual and legal basis for the new claim.
This is so in that it is
trite that the issue of jurisdiction whenever raised, has to be
determined on the basis of the pleadings
and not the merits of the
case
[12]
.
[19]
In this case, the certificate of outcome related to freedom of
association. The pleadings
however and the cause of action pertains
to constitutional rights to fair labour practices, and the rights and
protections afforded
to employees under section 5 of the LRA.
Employees’ rights to freedom of association are covered under
the provisions of
section 4 of the LRA, and in any event, no basis
was laid in the pleadings as to the reason reference is made to
‘freedom
of association’. In the end, I agree with the
respondent’s contentions that the Court lacks jurisdiction over
Silo’s
claim.
[20]
The facts and circumstances of Lephoi’s case are even more
curious. It was common
cause that he was not a recognised shop
steward. Having been asked to represent a fellow employee at a
disciplinary enquiry, he
had done so, and an amount of R36.99 was
deducted from his salary for being away from his workplace. This was
in circumstances
where
he had applied for and was granted unpaid
leave.
[21]
He had exercised his rights to refer a dispute to the CCMA, which
dispute was subsequently
withdrawn as the respondent had repaid him
the amounts that were deducted from his salary. According to the
respondent, it was
only at the CCMA proceedings that it became aware
of what the purpose of seeking unpaid leave of absence was. Having
withdrawn
his dispute on the basis that ‘he did not want to
take the matter further’, he nonetheless referred another
dispute
based on the same set of facts.
[22]
Lephoi’s case before this Court is similar to that of
Sifo. A certificate of
outcome was also issued characterising the
dispute as pertaining to freedom of association. In his statement of
claim however,
he alleged that his rights under the provisions of
section 5 of the LRA were violated, and that the matter is about
unlawful deductions.
He further claimed that the respondent unfairly
discriminated against him and also breached his constitutional rights
to fair labour
practices. Significant with the relief he claims is
that the Court should find that the respondent violated his protected
rights
and also made an unlawful deduction to his salary, which calls
for maximum compensation.
[23]
I have difficulties in appreciating how an employee can apply for and
be granted unpaid
leave, and to thereafter complain about his less
pay after he had taken that leave. In the same vein, I have the same
difficulties
in appreciating how those set of circumstances can lead
to a claim that he was discriminated against, or that his statutory
rights
were violated. Lephoi’s case is an abuse of this Court’s
processes. Any alleged unfair labour practice was resolved
by his
withdrawal of the dispute before the CCMA. There is no basis in
either law or fact that can be gleaned from the pleadings,
upon which
reliance can be placed on the provisions of section 5 of the LRA.
Lephoi cannot complain when a deduction was made to
his salary as a
result of his own request for unpaid leave. Any allegations of
discrimination or violation of statutory or constitutional
rights are
clearly red herrings. This is even moreso since these are not issues
that were referred for conciliation.
[24]
It follows from the above conclusions that the circumstances of
the two claims are
such that the matter of Sifo in regard to his
alleged unfair labour practice is still pending before the
Court. In respect
of Lephoi, his dispute before the CCMA in
regards to alleged unfair labour practice was withdrawn. In both
matters, the Court
would in any event lack jurisdiction to
adjudicate them as the issues sought to be determined were not
referred for conciliation.
To this end, it follows that the
respondent’s preliminary points ought to be upheld.
[25]
These two matters ought not to have come before the Court as they
represent an abuse of
this Court’s processes. They are a
classic case of forum shopping. In the circumstances, and upon a
consideration of the
requirements of law and fairness, I fail to see
any reason why the respondent should be burdened with their costs.
[26]
Accordingly, the following order is made;
Order:
1. The respondent’s
preliminary points under case numbers JS 124/2019 and JS 178/19 are
upheld.
2. The Court lacks
jurisdiction to adjudicate both matters.
3. GIWUSA is ordered to
pay the respondent’s costs.
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicants:
J. Mogase, (Union Official) of GIWUSA
For
the Respondent:
H Wissing, of Henk Wissing Incorporated
[1]
Act 66 of 1995 (as amended)
[2]
Charges of misconduct:
1.
Refuse to carry out a lawful instruction in that you were instructed
to go on leave.
2.
Not complying with Company leave policy and contract in that you did
not apply for leave.
3.
Absent from your workplace without permission
4.
Not informing Company of your whereabouts after returning from your
absence from the farm.
[3]
Section 5.
Protection
of employees and persons seeking employment
(1)
No person may discriminate against an employee for exercising any
right
conferred by this Act.
(2)
Without limiting the general protection conferred (1), no person may
do, or threaten to do, any of the following –
(a)
require an employee or a person seeking employment –
(i)
not to be a member of a trade union or workplace forum;
(ii)
not to become member of a trade union or workplace forum; or
(iii)
to give up membership of a trade union or workplace forum;
(b)
prevent an employee or a person seeking employment from exercising
any
right conferred by this Act or from participating in any
proceedings in terms of this Act; or
(c)
prejudice an employee or a person seeking employment because of
past, present or anticipated –
(i)
membership of a trade union or workplace forum;
(ii)
participation in forming a trade union or federation of trade unions
or establishing a workplace forum;
(iii)
participation in the lawful activities of a trade union, federation
of trade unions or workplace forum;
(iv)
failure or refusal to do something that an employer may not lawfully
permit or require an employee to do;
(v)
disclosure of information that the employee is lawfully entitled
required to give to another person;
(vi)
exercise of any right conferred by this Act; or
(vii)
participation in any proceedings in terms of this Act.
[4]
The Constitution of the Republic of South Africa, 1996 (Act 108 0f
1996, as amended)
[5]
[2015] ZACC 20
;
2015 (8) BCLR 904
(CC);
2015 (2) SACR 341
(CC)
[6]
At
para [14]
[7]
At
para [16]
[8]
See
Gcaba
v Minister for Safety and Security and Others
(2009) 30 ILJ 2623 (CC) at para 53, where it was held that;
‘
First,
it is undoubtedly correct that the same conduct may threaten or
violate different constitutional rights and give rise to
different
causes of action in law, often even to be pursued in different
courts or fora. It speaks for itself that, for example,
aggressive
conduct of a sexual nature in the workplace could constitute a
criminal offence, violate equality legislation, breach
a contract,
give rise to the actio iniuriarum in the law of delict and amount to
an unfair labour practice. Areas of law are
labelled or named for
purposes of systematic understanding and not necessarily on the
basis of fundamental reasons for a separation.
Therefore, rigid
compartmentalization should be avoided.’
[9]
5.
Protection of employees and persons
seeking employment
(1)
No person may discriminate against an
employee
for exercising any right conferred by
this
Act
.
(2)
Without limiting the general protection
conferred (1), no person may do, or threaten to do, any of the
following –
(a)
require an
employee
or a person seeking employment –
(i)
not to be a member of a
trade
union
or
workplace
forum
;
(ii)
not to become member of a
trade
union
or
workplace
forum
; or
(iii)
to give up membership of a
trade
union
or
workplace
forum
;
(b)
prevent an
employee
or a person seeking employment from exercising any right conferred
by
this Act
or from participating in any proceedings in terms of
this
Act
; or
(c)
prejudice an
employee
or a person seeking employment because of past, present or
anticipated
(i)
membership of a
trade
union
or
workplace
forum
;
(ii)
participation in forming a
trade
union
or federation of
trade
unions
or establishing a
workplace
forum
;
(iii)
participation in the lawful activities of
a
trade union
,
federation of
trade unions
or
workplace forum
;
(iv)
failure or refusal to do something that an
employer may not lawfully permit or require an
employee
to do;
(v)
disclosure of information that the
employee
is lawfully entitled required to give to another person;
(vi)
exercise of any right conferred by
this Act
;
or
(vii)
participation in any proceedings in terms
of
this Act
.
(3)
No person may advantage, or promise to
advantage, an
employee
or a person seeking employment in exchange for that person not
exercising any right conferred by
this
Act
or not participating in any
proceedings in terms of
this Act
.
However, nothing in this section precludes the parties to a
dispute
from concluding an agreement to settle that
disput
e
.
(4)
A provision in any contract, whether
entered into before or after the commencement of
this
Act
, that directly or indirectly
contradicts or limits any provision of section 4, or this section,
is invalid, unless the contractual
provision is permitted by
this
Act
.
[10]
[2014]
ZACC 35
; (2015) 36 ILJ 363 (CC); 2015 (2) BCLR 182 (CC)
[11]
[2018] ZACC 4
;
2018 (4) BCLR 483
(CC); (2018) 39 ILJ 987 (CC);
[2018] 5 BLLR 431
(CC) at para [50]
[12]
See
Chirwa
v Transnet Ltd and Others
(2008)
29 ILJ 73 (CC) at para169;
Mahumani
v Member of the Executive Council: Finance, Economic Affairs and
Tourism, Limpopo
(
2010) 31 ILJ 2009 (NGP)