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[2020] ZALCJHB 28
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Motor Industry Association obo Members v Big Apple Motors CC (C840/19) [2020] ZALCJHB 28 (6 January 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
C840/19
In
the matter between:
MOTOR INDUSTRY ASSOCIATION
ON
BEHALF OF MEMBERS
Applicant
and
BIG
APPLE MOTORS
CC
Respondent
Heard
:
3 January 2020
Delivered
:
6 January 2020
Summary:
Application to interdict a retrenchment – Court lacks
jurisdiction – where section 189A does not apply – no
referral
to conciliation.
Held: (1) application dismissed for
want of jurisdiction.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
This is an unopposed application in terms of which the applicant
trade
union seeks to interdict a retrenchment. Papers in relation to
this matter were first filed in the Labour Court Johannesburg to
be
heard on 31 December 2019. Subsequently, for reasons not apparent in
the papers, similar papers were filed in the Labour Court
Cape Town
to be heard on 2 January 2020. In these papers, a prayer was added
seeking retrospective reinstatement pending compliance
with section
189 of the LRA. The arrangement was to hear this Cape Town matter
over the telephone. On the day, I was advised by
my associate that
the applicant had sent a representative to the Johannesburg Labour
Court in order to move the application. I
directed that the matter be
stood down to the following day in Johannesburg.
Background
facts
[2]
Given the view I take at the end of this matter, it is unnecessary to
set out all the background
facts pertinent hereto. The applicant is a
registered trade union, bringing this application on behalf of three
of its members.
It is unclear from the founding papers whether any of
the members of the applicant were retrenched or are in the process of
being
retrenched. In the papers it is alleged that the respondent
employs approximately 15 employees. Out of that number, the applicant
has three of them as its members. One Ms Poggenpoel, a member of the
applicant, was verbally informed on 11 December 2019 to attend
a
meeting on 12 December 2019. The said meeting happened whereat Ms
Poggenpoel was informed that she was retrenched.
[3]
Subsequent thereto the applicant’s officials and the
respondent’s official engaged
in a barrage of correspondence
over the issue of the retrenchment of Ms Poggenpoel. That culminated
in the applicant launching
the present application on 19 December
2019. The application stands unopposed.
Evaluation
[4]
This application is brought as one of urgency. The reasons for
urgency
are flimsy and self-serving. This Court was prepared to
strike the matter from the roll for lack of urgency. However, having
had
regard to how badly the case was pleaded, if the matter was only
struck off the roll, the applicant would have returned to this
Court
to unduly clog the roll of this Court with a hopeless matter.
[5]
The jurisdiction of this Court over procedural irregularities on
matters
involving what is known as mass retrenchment arises from
section 189A (13) of the LRA. The provisions of section 189A (1) are
clear.
The section only applies to employers employing more than 50
employees. On the applicant’s own version, the respondent
employs
15 employees. Therefore, the provisions of section 189A (13)
does not find application.
[6]
In a normal retrenchment situation, this Court’s jurisdiction
is
ignited after referral to conciliation. There is no allegation
that prior to approaching this Court a dispute alleging unfair
dismissal
based on the respondent’s operational requirements
was referred for conciliation. Therefore, the jurisdictional
pre-requisites
have not been met.
[7]
For all the above reasons, the Labour Court lacks jurisdiction to
entertain
this matter. Accordingly, the application is bound to fail.
[8]
In the results, I make the following order:
Order
1.
The application is dismissed for want of
jurisdiction.
_______________________
G. N. Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant
: Mr N T Goba
Union Official.
For the Respondent
: No appearance.