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IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
Case No: D942/98
In the matter between:
STEEL MINING AND COMMERCIAL
WORKERS UNION First Applicant
XULU MOSES AND 23 OTHERS Second and Further Applicants
and
TIGER PLASTICS (PTY) LTD Respondent
JUDGMENT
JALI AJ
1. This was a referral in terms of section 191(5)(b)(ii) of the Labour
Relations Act No 66 of 1995 ("the Act").
2. The respondent has filed a statement of defence in which a point in
limine has been raised regarding the lack of jurisdiction of this Court
because of the applicant's premature referral of the dispute to the
Labour Court. The respondent contends that the matter was
referred to the Labour Court before the dispute was conciliated by
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the Commission for Conciliation, Mediation and Arbitration ("the
CCMA). In the premises the respondent is seeking an order
dismissing the application with costs.
3. The facts of the matter as set out in the respondent's statement of
defence, which are common cause, are briefly as set out
hereinafter. On or about the 15th of September 1998, the first
applicant advised the respondent that certain of the respondent's
employees had become members of the first applicant. The first
applicant demanded that it be accorded organisational rights
contained in section 12, 13, 15, 16, 20, 21 and 22 of the Act.
4. On the 15th of September 1998, the respondent advised the first
applicant that he would grant the first applicant rights in accordance
with the abovementioned sections of the Act.
5. On the 30th of September 1998, the first applicant, on behalf of the
second and further applicants, referred a dispute to the CCMA for
conciliation. The nature of this dispute was described as "refusal to
bargain" and "interpretation or application of organisational rights."
6. On the 2nd of November 1998, a conciliation meeting was held at
the CCMA concerning the respondent's alleged refusal to bargain. A
certificate of outcome of the dispute referred for conciliation was
issued on the 2nd of November 1998 under CCMA reference No
KN22392, declaring the dispute unresolved. The issue, as described
in the aforesaid certificate, which was to be decided was the refusal
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to bargain.
7. On the 9th of November, the first applicant gave notice to the
respondents of a pending strike action. (I am not going to go into
details about that pending strike action as it is not relevant to this
particular dispute before me.)
8. On the 9th of November 1998, the respondent advised the first
applicant, amongst others, that as the first applicant had not
specified when the strike action was to commence, the
contemplated strike would be unprotected. That, subsequently, led
to a dispute between the two parties, which dispute was later
referred to the CCMA. On the same day, the second and further
applicants embarked on a strike.
9. On the 11th of November 1998, the first applicant referred a dispute
on behalf of the second and further applicants to the CCMA for
conciliation, where the first applicant described the nature of the
dispute as "(1) Unfair lock out and (2) Unfair dismissal".
10. In the section dealing with the special features of the dispute in the
referral form, that is the LAR7.11, the applicant described its
dispute as an unfair lock out, for participating in a legal and
protected strike, which led to the dismissal of the employees.
11. On or about the 2nd of December 1998, the first applicant, on
behalf of the second and further applicants, referred a dispute to
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this Honourable Court, which was the very same dispute which had
been referred to the CCMA on the 11th of November 1998.
12. The aforesaid dispute was conciliated by the CCMA on the 22nd of
January 1999.
13. Now, I will turn to look at the legal position, Section 191 provides
for the procedure in resolving disputes about unfair dismissal.
Section 191 provides:
(1) If there is a dispute about the fairness of a dismissal, the dismissed employee may
refer the dispute in writing within 30 days of the date of dismissal to:
(a) a council if the parties to the dispute fall within the registered scope of that
council, or
(b) The Commission, if no council has jurisdiction.
(2) .....
(3) .....
(4) The council or commission must attempt to resolve the dispute through
conciliation.
(5) If a council or a commissioner has certified that the dispute remains
unresolved, or if 30 days have expired since the council or Commission received
the referral and the dispute remains unresolved:
(a).....
(b) the employee may refer the dispute to the Labour Court for adjudication if
the employee has alleged that the reasons for the dismissal is:
(i) Automatically unfair,
(ii).....
(iii) The employee participation in a strike that does not comply with the
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provisions of Chapter IV."
14. It is clear from reading the above mentioned provisions that
disputes must be referred to the CCMA or an industrial council (if
there is one recognised for the industry) first before they are
referred to this court. It is only after the CCMA or a council has
failed to resolve the dispute and certified to that effect or a period
of 30 days has expired since the referral that it can be referred to
the Court. I agree with the applicant that the Labour Court can only
adjudicate after a dispute has been conciliated by the CCMA or a
council. The only other exception being where a period of 30 days
had expired since the referral to the CCMA or council.
15. Section 1(d) of the Act states that the purpose of this Act is to
advance a economic development, social justice, labour peace and
democratisation of the workplace by fulfilling the primary objects of
this Act which are to promote, amongst others, orderly collective
bargaining and the effective resolution of labour disputes. (See
Section 1(d)(i)(iv)). In interpreting the Act, it is of significance to try
and give effect to the primary objects of The Act. See section 3(a)
of the Act.
16. In the interpretation of the Act, one should also avoid an overly
technical approach, which would lead to an absurd situation. On the
other hand, the Legislature, in promulgating the conciliation
provisions in the Act, it anticipated that the parties would approach
the CCMA and endeavour to resolve their disputes through
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conciliation and not merely to go through the motions in doing so.
Ignoring the provisions of the Act and coming straight to the Labour
Court might make applicants ignore the CCMA, which is an integral
and significant component of the dispute resolution mechanism
which is set out in terms of the Act. This Court should not
encourage such behaviour as it does have its own negative
consequences. Section 1(d)(iv) refers to an effective dispute
resolution. Effective dispute resolution does not mean that the
procedural steps set out by the Act should be ignored for it to be
effective, otherwise it would lead to an absurd situation, where
other litigants would be following the procedures and others would
not. I have no doubt in my mind that most, if not all, employees
who refer their disputes to the CCMA would like to see them
resolved as soon as possible. However they become patient,
waiting for their turn in the queue before their disputes are before
commissioners to be conciliated, thereafter are referred to the
Labour Court or Arbitration, as the case might be. Under those
circumstances, it is unacceptable for other employees to ignore all
the above provisions of the Act and just come straight to the Labour
Court.
17. The Labour Court has, previously, expressed unhappiness about
people who fail to follow procedures in bringing matters to this
court. In Chemical Workers Industrial Union v Darmag Industries
(Pty) Ltd , case No P42/98, an unreported judgment of REVELAS J, the Labour
Court held that a prematurely conciliated dispute had to be referred back to the
CCMA. This matter also confirms the views of the Court with regard to litigants
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who are not following the proper procedures in referring matters to this Court.
18. During argument, Mr Denny referred me to the Labour Relations Act
of 1995 , a comprehensive guide (2nd Edition) written by du Toit,
Woolfrey and Others at page 354. I had an opportunity to look at
page 354 which he said was the authority for the proposition that
the Court has granted orders prior to the matter being conciliated or
arbitrated in exceptional circumstances and upon proof of urgency.
I do not believe that the paragraph set out therein bears any
relevance to this particular matter, as it refers to a Court granting
an order. In this case, we are not considering an order which is to
be granted by this Court. The matter has not, as yet, reached that
stage. In any event, the applicants have not submitted that they
did it because of the urgency of the matter.
19. Mr Hlatswayo, in argument, submitted that they were advised to
come to the Labour Court by the CCMA because the Respondent
had refused to go to the CCMA.. That is the reason why they
referred this matter to this court before conciliation. However, I do
not agree with Mr Hlatswayo’s submission as it is clear that the
letter from the CCMA said they should proceed “as they deem fit in
terms of the Labour Relations Act”. They then choose to refer the
matter to the Labour Court before conciliation. It is apparent to me,
after perusing the court file, that the matter was referred to the
CCMA on the 11th of November 1998. On the 19th of November
1998, the applicants applied for a case number to the Registrar of
this Court. So I fail to understand how he connects, the CCMA
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advice, pursuant upon the refusal by the applicant to attend
conciliation, with referring the matter to this court. Conciliation was
only held on 26 January 1999. The CCMA in its November letter
merely advised the Applicants to exercise their rights in terms of the
Act. This was their misguided choice.
20. Furthermore there are provisions within the Act which deal with
employers who do not turn up for conciliation hearings. If the
Commissioner had thought that the employer might not attend
conciliation he would have known what remedy to give at the
appropriate time of the conciliation.
21. I have thought about the matter and contemplated about whether
any prejudice has been caused by the premature referral. However,
what becomes paramount is that this Court has got to express its
unhappiness about litigants who do not follow the procedures set
out in the Act and the developing tendency amongst litigants of
ignoring the CCMA. As I have already indicated, the CCMA is a very
important part of the dispute resolution mechanism which is set out
in terms of the Act.
22. I have also considered the provisions of Section 158(1) (f) of the Act
which provides that “the Labour Court may, subject to the
provisions of this Act, condone the late filing of any document with,
or the late referral of any dispute to, the court”. It is apparent to
me that this particular provision, which is an all encompassing
provision with regard to issues of condonation, only refers to the
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condonation of a late filing of a document or a late referral to the
court. It is accordingly not relevant to this particular case as in this
case we are dealing with a premature referral of a dispute to the
Labour Court. Accordingly this action cannot be condoned.
23. Now I will turn to consider the question of costs. The respondents
have asked for costs, indicating that on more than two previous
occasions, the applicants had an opportunity to decide whether to
withdraw this matter or to proceed with it, but they chose to come
to this court. It is apparent that the respondent's Statement of
Defence was filed and served on the other side on or about about
20 January 1999. That should have immediately warned the
applicants as there was a point in limine, indicating that the Court
didn't have jurisdiction. If they had applied their minds to the
matter minimal costs would have been incurred by the respondents
if, at that stage, the matter had been withdrawn.
24. Mr Denny also referred to the fact that, subsequent to that, there
was a pre-trial hearing in which the same point was, once again,
raised but the applicants wanted to persist with this particular
application. The applicants once again had an opportunity to re-
consider their position. They did not.
25. On the other hand, Mr Hlatswayo submitted the Union was asked by
the CCMA to come to the Labour Court. I have already expressed
my doubts about the correctness of this statement because it is
clear to me that a Commissioner would have known what route the
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applicants had to follow. However, I do not intend making a finding
as to whether that is correct or not, but I have got my doubts.
26. After considering the provisions of Section 162 of the Act, I am of
the opinion this is one matter where the costs should follow the
outcome of this matter. The order which I am going to give will be
as follows. The special plea is upheld and the applicants claim is
dismissed. The applicants are ordered to pay the costs.
________________________________________
JALI A.J.
ON BEHALF OF APPLICANT:
MR T HLATSHWAYO of STEMCWU, Durban
ON BEHALF OF RESPONDENT:
MR D DENNY of Deneys Reitz, Durban
DATE OF HEARING:
25 May 1999
DATE OF JUDGMENT
25 MAY 1999
PLACE OF PROCEEDINGS:
DURBAN
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