IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case No: J 437/98
In the matter between:
ABEL MOLEMI & 48 OTHERS First and Further Applicants
and
HELLMANN PARCEL SYSTEMS (PTY) LTD Respondent
REASONS
Seady, AJ
[1] The Applicants have referred a dispute about the unfairness of their dismissal to
the Labour Court. The Respondent, in its answering statement, raised a point in limine
concerning this Court’s jurisdiction to determine the unfair dismissal dispute. By
agreement, the point in limine was argued prior to a trial of the merits.
[2] The Respondent submits that this Court has no jurisdiction to determine a dispute
concerning the fairness of the dismissals because that dispute was never referred for
conciliation as required by section 191 of the Labour Relations Act, 1995 (“the Act”).
[3] Section 191(1) states
“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.”
[4] Section 191(5) states
“If a council or a commissioner has certified that the dispute remains unresolved, or if 30
days have expired since the council or the Commission received the referral and the
dispute remains unresolved
(a) the council or the Commission must arbitrate the dispute at the
request of the employee if
(i) the employee has alleged that the reason for dismissal
is related to the employee’s conduct or capacity, unless paragraph (b) (ii) applies;
(ii) the employee has alleged that the reason for dismissal is that the employer made
continued employment intolerable; or
(iii) the employee does not know the reason for dismissal; or
(b) the employee may refer the dispute to the Labour Court for
adjudication if the employee has alleged that the reason for dismissal is
(i) automatically unfair;
(ii) based on the employer’s operational requirements ;
(iii) the employee’s participation in a strike that does not comply with the provisions
of Chapter IV; or
(iv) because the employee refused to join, was refused membership of or was
expelled from a trade union party to a closed shop agreement”.
[5] It was common cause that The National Bargaining Council for the Road
Transport Industry (Goods) had jurisdiction within the meaning of subparagraph (a) of
section 191(1). Transport and General Workers Union (“the union”) referred a dispute
to the Council on 27 January 1999. In the referral form the dispute was described to be
about “the no ( sic) of our members who are to be retrenched, outsourcing the depts ( sic)
to be affected”. The dispute was said to relate to section 64(1) and 134 of the Act. In
paragraph 6 of the referral form, the union indicated the desired outcome of the
conciliation in the following terms “maintenance of the depts ( sic) to be outsourced by
the respondent with the ultimate goal of avoiding the retrenchments”. Paragraph 5
records that the dispute arose on 15 January 1997.
[6] The Council arranged a conciliation meeting for 27 February 1997. A
representative of the union failed to attend the meeting. The Council issued a certificate
indicating that the dispute remained unresolved on 27 February 1997. The certificate
described the dispute as one relating to “unilateral change of conditions section 64(1)
and 134".
[7] On 28 February 1997 the Applicants were refused entry to the Respondent’s
premises. They perceived the Respondent to have engaged in an unprotected lockout
and on 28 February 1997 launched urgent proceedings to interdict that lockout. After
28 February 1997 they no longer performed any work for the Respondent. The
Respondent says that on 28 February 1997 each of the Applicants was given a letter
notifying them of the termination of their employment with effect from 14 March 1997.
The date of dismissal is not common cause and the Applicants’ statement of case is not
explicit although it suggests the dismissals took place on 28 February. Respondent
argued that the dismissal took place on 28 February or 14 March 1997, depending on
how section 190 of the Act is interpreted.
[8] Either way, contends Respondent, the dismissal occurred after the referral of a
dispute to the Council (27 January 1997) and after the Council issued a certificate stating
that the dispute was unresolved ( 27 February 1997). This sequence of events was not an
issue for the parties in 1997. They continued to try to resolve their dispute. Their efforts
led to an agreement that the union would withdraw the urgent proceedings concerning
the lockout and to have the unfair dismissal dispute arbitrated by the Commission for
Conciliation, Mediation and Arbitration (“the CCMA”), in terms of section 141 of the
Act. At that stage the parties shared the understanding that conciliation by the Council
having failed the fairness of the dismissals (based on the Respondent’s operational
requirements) was to be adjudicated by the Labour Court, unless they agreed to have it
arbitrated by the CCMA. It seems that the Council was not yet accredited to conduct
arbitrations in terms of the Act. A copy of their agreement to refer the dispute to
arbitration could not be located, but its existence was not in dispute.
[9] The Applicants referred the dispute to the CCMA for arbitration on 30 April
1997. An arbitration was scheduled, but prior to its commencement the CCMA advised
the parties, in a letter dated 2 February 1998, that the CCMA had no jurisdiction to
arbitrate because it was apparent from the Council’s certificate that the dispute referred
for conciliation concerned unilateral changes to conditions of employment. This,
advised the CCMA, was a dispute of interest, not arbitrable in terms of the Act. The
CCMA advised the union to review the certificate if it was unsatisfied with its
description of the dispute.
[10] The parties continued to engage in efforts to resolve the unfair dismissal dispute.
A mediation process came close to achieving resolution, but the dispute remained
unresolved.
[11] On 4 March 1998 the Applicants applied to the Labour Court for a case number
and initiated proceedings for retrospective reinstatement. In response to their statement
of claim, the Respondent raised, as a point in limine , its objections to this Court’s
jurisdiction given that the dispute about the fairness of the dismissals had not been
referred to the Council for conciliation.
[12] In determining whether or not the dispute before the Court is the same as the
[12] In determining whether or not the dispute before the Court is the same as the
dispute that was referred for conciliation this Court should enquire into the real nature of
the dispute. In so doing it must have regard to all the evidence and documents before it.
It is not confined to the characterization of the dispute by either or both parties or by the
Bargaining Council or the CCMA. See in this regard
Fidelity Guards Holdings (Pty) Ltd v Professional Transport Workers Union &
Others (1) (1998) 19 ILJ 260 (LAC);
Ceramic Industries Ltd t/a Betta Sanitary Ware v National Construction Building
& Allied Workers Union (2) (1997) 18 ILJ 671 (LAC);
Pick’n Pay (Pty) Ltd v SA Commercial Catering & Allied Workers Union & Others
(1998) 19 ILJ 1546 (LC).
[13] I am aware that these decisions all involve a determination of the “issue in
dispute” within the context of strike action. Even so, I am of the view that the same
approach should be followed by this Court and the CCMA when enquiring into its
jurisdiction to determine an unfair dismissal dispute. The enquiry may be directed at
establishing the date of dismissal, the reasons for the dismissal or whether the dispute
before Court or the CCMA has been referred for conciliation. I am not bound by the
Council’s categorisation of the dispute as one concerning unilateral changes to
conditions of employment. Neither must I adopt the literal formulation of the dispute by
the union in its referral to the Council. In ZeunaStärker Bop (Pty) Ltd v National
Union of Metalworkers of SA (1999) 20 ILJ 108 (LAC) the Labour Appeal Court
found that a CCMA commissioner is obliged to enquire into the facts to decide whether
he has jurisdiction to conciliate the dispute. He is not bound by the description and date
of the dispute in the referral form. Rather, he must examine all the facts to ascertain the
real dispute between the parties and then determine the actual dispute and the date it
arose.
[14] For the reasons set out above I think the Respondent has adopted an approach
that is too technical. Despite the literal formulation of the dispute in the Council’s
referral form, I have little doubt, on the facts before me that the parties understood
themselves to be in dispute about a range of things including the job losses consequent to
the outsourcing of certain functions. If the referral had been made after the dismissal of
the Applicants I would not consider myself constrained by their formulation of the
dispute in the referral forms in deciding whether the dispute referred to the Labour Court
had been referred for conciliation.
This is not the case before me. There was only one referral to the Council. The referral
form was completed by a union organiser, Nelson Lamityi, on 27 January 1997 and
submitted to the Council on the same day or the next day (it is stamped 28 January
1997). Although the Applicants attempted to show that the dismissal took place on 15
January 1997, Mr Lamityi’s evidence clearly confirmed that when the dispute was
referred to the Council, the Applicants were still in the Respondent’s employ. They had
not yet been dismissed, although retrenchments were anticipated. The Applicants
stopped working on 28 February 1998. That is the date of their dismissal within the
meaning of section 190(1)(b). On the facts before me there is no basis for a finding that
they were dismissed on a date prior to the referral of a dispute to the Council
[15] It is clear from the wording of section 191(1) that a dispute about the fairness of
a dismissal can only be referred for conciliation after the dismissal has taken place
“ (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) ...
(b) ... ”
( own emphasis).
[16] Conciliating a dispute about a dismissal that has occurred is not the same as
conciliating a dispute about an impending dismissal. Even though they may depend on
the same facts, there are different legal consequences if the parties fail to settle the
dispute. These impact on the conciliation process and inform positions adopted by the
parties and the conciliator. A dispute about a dismissal that has taken place is not the
parties and the conciliator. A dispute about a dismissal that has taken place is not the
same as a dispute about an impending dismissal. All kinds of undesirable consequences
might flow from permitting a party to have a dismissal dispute adjudicated in terms of
section 191(5) on the basis of a referral that predates the dismissal. For example, if the
employer advises employees that their employment will be terminated after two months
and the employees immediately refer a dispute to the CCMA and wait 30 days, they
could request arbitration or refer the dispute to the Labour Court (depending on the
reason for the dismissal) before the dismissal has even taken place. It is a simple enough
process to refer a dispute for conciliation and employees can reasonably be expected to
refer a dispute about their dismissal after it has taken place, even if they have already
referred a dispute about their impending dismissal.
[17] The Applicants’ failure to refer their dispute to the Council after they had been
dismissed deprives this Court of the necessary jurisdiction to adjudicate that dispute.
[18] Although the Respondent has succeeded with its point in limine I have exercised
a discretion, in terms of section 162, not to order the Applicants to pay the Respondents
costs.
[19] On 26 May 1999, having heard argument and evidence for the Applicants, I
ordered that the point in limine be upheld. I indicated that reasons for my order would
follow in due cause. These are my reasons.
____________________
Seady, AJ
Date of hearing : 26 May 1999
Date of judgment : ex tempore order
Date of reasons : 4 June 1999
Appearing on behalf of the Applicant : Mr Mohlosane, TGWU
Appearing on behalf of the Respondent : Mr N.T.G Redman,
instructed by Bowman Gilfillan Inc.