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[2019] ZALCJHB 364
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Makofane and Others v Tubular Construction Projects (Pty) Ltd; In re: AMCU obo Luthuli and Others v Tubular Construction Projects (Pty) Ltd (JS761/15) [2019] ZALCJHB 364 (27 November 2019)
the
labour court of South Africa, johannesburg
Of
interest to other Judges
CASE
NO:JS761/15
In the matter between:
MOTSHABENG SAMUEL
MAKOFANE & 9 OTHERS
Applicant
and
TUBULAR CONSTRUCTION
PROJECTS(PTY) LTD
Respondent
IN RE
AMCU obo ALBERT
LUTHULI & 36 OTHERS
Applicant
And
TUBULAR
CONSTRUCTION PROJECTS (PTY) LTD
Respondent
Heard:
15 November 2019
Judgment
delivered: 27 November 2019
JUDGMENT
VAN NIEKERK J
[1]
This is an application which in terms of prayer 1 of the notice of
motion seeks to join
Messers. Mkofane, Mashego and Mailula to an
action referred to this court on 6 November 2015 in which a number of
the respondent’s
employees dismissed on 18 June 2015 contend
that their dismissal by the respondent was unfair. The applicants
further seek the
amendment of the citation and the substitution of
‘some of the other Applicants due to termination of mandate by
AMCU and
withdrawal of the main applicant Mr. Albert Luthuli from the
initial application’.
[2]
It is not in dispute that on 3
July 2015, AMCU, representing Mr. Luthuli and 36 others,
all
employees dismissed on 18 June 2019, referred a dispute to the MEIBC.
On 13 July 2015, the MEIBC issued a certificate recording
that the
dispute remained unresolved, and that it should be referred to this
court for adjudication. A statement of claim was filed
on 6 November
2015. Annexed to the statement of claim is a list of 37 employees who
are cited as the second to further applicants,
all members of AMCU
dismissed on 18 June 2015.An amended statement of claim and response
were filed during the course of 2016.
By the time that the pre-trial
conference was held, AMCU appears to have withdrawn as the
applicants’ representative, and
the second to further
applicants were represented by five of their number. A pre-trial
minute was signed on 10 July 2018, and the
matter enrolled for trial
on 11 November 2019.
[3]
The present application was filed on 4 October 2019. An answering
affidavit was filed
7 November 2019, but no reply had been filed by
the trial date. I directed that a replying affidavit be filed by 14
November 2019,
and that the application for joinder be argued the
next day.
[4]
In his founding affidavit, Mafokane avers that he is one of the
employees dismissed
by the respondent on the same date as the other
applicants, for the same reason. He submits that the court has
jurisdiction by
virtue of the fact that ‘the prerequisite
requirement of referring the matter to the CCMA or Bargaining Council
was met’
and attaches a certificate of outcome issued by the
MEIBC on 13 July 2015 stating that a dispute between “AMCU obo
A Luthuli
& 36 others’ remained unresolved on that date.
Also attached is a certificate issued by the MEIBC in respect of a
dispute
between “Mr OT Mashigo” and the respondent, dated
29 September 2015, certifying that a dispute referred on 10 September
2015 remained unresolved. Also attached is a third certificate in a
dispute between ‘Samuel Makofane & 1 other’
and the
respondent, referred on 4 August 2015, which was certified as
unresolved as at 19 August 2019. Mashego and Makofane
are
applicants in the present proceedings. Mailula referred a dispute to
the CCMA. On 31 August 2015 the CCMA issued a ruling to
the effect
that it had no jurisdiction to conciliate the dispute, since the
nature of the respondent’s business was such
that it fell
within the jurisdiction of the MEIBC. In other words, the three
applicants in the present application were not
part of the referral
made by AMCU on 3 July 2015; they referred separate disputes on 4
August 2015 (Makofane and Mailula) and 10
September 2015 (Mashigo)
respectively.
[5]
It also warrants mention that there are confirmatory affidavits
attached by a number
of individuals, for no apparent purpose. These
are Mocumi, Msiza, Maqondo, Makhalamele, and Sono. They are all
listed in
the annexure to the statement of claim and described as
members of AMCU, on whose behalf the union filed the claim. There is
no
reason therefore to join these persons – they are already
applicants in the dispute referred to the court for adjudication.
[6]
In so far as the three applicants in the present application are
concerned, the respondent
does not dispute that they were dismissed
along with the applicants to the statement of case on 18 June 2015.
It is also not in
dispute that they were not applicants in the
referral made by AMCU to conciliation, nor are they listed as
applicants in the statement
of case referred by AMCU on 6 November
2015. Also not in dispute is that despite each of the applicants
being in possession of
a certificate of outcome recording that their
disputes with the respondent remained unresolved (as at 19 August
2015 and 29 September
2015), none of them referred a dispute to this
court for adjudication.
[7]
In
NUMSA v Intervalve (Pty) Ltd
[2015] 3 BLLR 205
(CC), the
Constitutional Court said the following:
[90]
No dispute about the fairness or otherwise of a dismissal arises in a
situation where an employer
dismisses an employee and that employee
does not dispute the fairness of that dismissal but accepts the
dismissal and walks away.
However, if that employee dispute the
fairness of that dismissal and the employer maintains its position
that the dismissal is
fair, the dispute does arise. This is a clear
case of one dismissal dispute or a single dismissal dispute.
[91]
If two employees, Mr Dlamini and Mr Smith, who belong to the same
union dismissed by their employer,
ABC (Pty) Ltd (“ABC”),
after a joint disciplinary hearing whether faced the same allegations
of misconduct and one
of them accepts the dismissal and walks away at
the other disputes the fairness of the dismissal and conveys that to
the employer,
only one dismissal dispute arises. If, however, they
both dispute the fairness of the respect of dismissals, in law to
dismissal
disputes arise. The one dismissal dispute is between Mr
Dlamini and ABC. The other is between Mr Smith and ABC. This is
despite
the fact that there is much in common between the two
dismissal disputes such as that of both employees belong to the same
union,
were employed by the same employer, faced the same allegations
of misconduct like participating in an unprotected strike and share
the same disciplinary enquiry before they were dismissed.
[92]
Mr Dlamini and Mr Smith may refer the respect of dismissal disputes
to conciliation jointly by
way of a single referral or they may refer
the respect of dismissal disputes to conciliation separately into
referrals. If Mr Dlamini
refers his dismissal dispute to conciliation
and Mr Smith does not refer his, Mr Dlamini’s dismissal can
later be referred
to the Labour Court for adjudication in terms of
section 191 (5) of the LRA if the dispute remains unresolved after
the conciliation
process. If Mr Smith wishes his dismissal dispute to
also be adjudicated by the Labour Court when he realises that Mr
Dlamini’s
one is about to be adjudicated and Mr Dlamini might
get his job back, he would face the hurdle that his dispute was not
referred
to conciliation. Mr Smith cannot be saved by the argument
that his dispute and that of Mr Dlamini’s are one and the same
dispute and, therefore, the Labour Court should join him in the trial
proceedings relating to Mr Dlamini’s dismissal dispute.
[93]
The same would apply Mr Smith referred his dispute outside the
prescribed 30-day period and condonation
was refused and he did not
take the decision on review. In order to disputes are separate
disputes…
[94]
What I’ve said above about Mr Dlamini and Mr Smith’s
dismissal disputes reveals that,
despite the fact that Mr Dlamini and
Mr Smith belong to the same union, were employed by the same
employer, attended the same disciplinary
enquiry facing the same
allegations of misconduct and were dismissed at the same time for the
same reason, if each one of them
disputed the fairness of his
dismissal, their dismissals would give rise to 2 separate dismissal
disputes….
[8]
In
SACCAWU obo members v Entertainment
Logistics Service (a division of Gallo Africa Ltd)
[2011]
2 BLLR 206
(LC), this court dismissed an application to join members
of a trade union in circumstances where a referral to the court had
been
made in respect of the dismissal of a single employee. The court
noted that the issue raised by the application was whether a party
who has not referred a dispute to the Court for adjudication may
apply to join a dispute timeously referred by another party, in
circumstances where the applicant in the joint application claims
that the right to relief depends on the determination of
substantially
the same question of law and facts. The court dismissed
the application, with costs, on the basis that an applicant may not
avoid
the statutory prescribed time limits by resorting to an
application for joinder, and that the question of joinder (or the
consolidation
of a dispute with any other dispute referred to the
Court for adjudication) is more appropriately dealt with if and when
condonation
for the late referral has been granted. The court held
that the provisions of s 191 (5) contemplated that where the same
factual
circumstances gave rise to different disputes, each of the
disputes had to be referred to this court by way of the filing of a
statement of case. Specifically, an applicant in this court could not
rely on joinder in terms of Rule 22 to avoid the obligation
to comply
with section 191 of the LRA. Section 191 contemplates the referral of
a dispute for adjudication, and requires that any
dispute that is
referred be referred within the 90-day time limit.
[10]
Although the applicants in the
SACCAWU
case had been dismissed for related but separate incidents, they had
declared separate disputes and processed them separately through
the
statutory dispute resolution structure. In the present case, the
factual circumstances giving rise to the separate disputes
are
identical, but they remain separate disputes and the principle thus
remains intact, i.e. that even where the factual circumstances
giving
rise to a number of separate disputes are the same, the disputes must
be discreetly processed through the statutory dispute
resolution
system and in particular, must be separately referred to this court
for adjudication within the prescribed time limit.
Of course, it
remains open to the court for reasons of convenience to consolidate
disputes in those circumstances, but the mechanism
of joinder is not
open to a party who has failed to refer a dispute to this court in
terms of Rule 6.
[11]
In short: the applicants in the present proceedings are not party to
the referral to this court.
They referred different disputes to
conciliation and obtained different certificates of outcome. For
reasons that are not apparent,
for some four years, they did nothing
to pursue their claims. They now seek to hang onto the coattails of
those who referred their
dispute timeously to have their claim
adjudicated by the court for the reasons recorded above, it is not
open to them to do so.
The application for joinder stands to be
dismissed.
[12]
In so far as the present applicants seek further to have the citation
in the pending action amended
and to have certain of the applicants
in that action substituted by others on account of the termination of
AMCU mandate and what
appears to be the withdrawal of Mr Luthuli
(described as the ‘main applicant’), there is simply no
basis for such an
order. What appears to have transpired since the
withdrawal of AMCU and its attorneys from the proceedings is a
reluctance by certain
of the original applicants to pursue the claim,
and the intervention of the attorney of record on behalf of the
applicants in the
joinder application. These are not matters that can
be resolved on the present papers, but which must necessarily be
resolved before
the matter can be re-enrolled for trial.
I
make the following order:
1.
The application for joinder is dismissed.
2.
Each of the individual applicants listed in
annexure A to the statement of case must, within 21 days of the date
of this order,
file an affidavit confirming that he is an applicant
to the referral and that he intends pursuing his claim, as recorded
in the
statement of case read with the pre-trial minute.
3.
Any attorney acting on behalf of any of the
individual applicants listed in annexure A to the statement of case
may, in lieu of
filing the affidavit referred to in paragraph 2, file
a power of attorney within the prescribed time limit in which he or
she is
authorised to act on the applicant’s behalf.
4.
After the expiry of the 21-day period
referred to in paragraph 1, any party to the dispute may approach the
Judge President for
further direction as to the conduct of this
matter, including a request for a trial date.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: Mr L M Segaole, Segaole Attorneys
For the respondent: Adv.
E Tolmay instructed by Webber Wentzel