VIC & DUP/JOHANNESBURG/LKS
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
DATE: 26 JULY 1999 CASE NO. J548/97
In the matter between:
CONSTRUCTION & ALLIED WORKERS UNION Applicant
and
BECKER CRUSHERS CC Respondent
J U D G M E N T
NGWENYA, AJ : This is a referral matter on alleged unfair
dismissal in terms of section 191 of the Labour Relations
Act. Apparently the matter was referred to conciliation
and conciliation failed to help to resolve the matter. The
matter was then subsequently referred to arbitration.
During arbitration or at arbitration the parties
signed a document in which they agreed that the CCMA has no
jurisdiction over the matter. It is not clear whether the
matter was formally withdrawn before the CCMA or what
actually happened, but nevertheless it was referred to this
court for hearing.
I do not propose to give an exhaustive judgment but
briefly this is what I intend saying. According to the
referral statement by the applicant, this was a referral in
terms of section 191(1) of the Labour Relations Act, I
propose to read that section. Section 191 of the Labour
Relations Act provide as follows I will only confine
myself to subsection (1) which deals with dispute about
unfair dismissal. Subsection (1) says:
"If there is a dispute about the fairness of a dismissal,
the dismissed employee may refer the dispute in writing in
30 days within the date of dismissal to a council if the
party's dispute do fall within the registered scope of that
council or the commission, if no council has jurisdiction. "
I want to assume that in this particular instance there was
no council which had jurisdiction over the dispute between
the parties.
I have at the commencement of these proceedings
invited argument from both parties why is it that this
court has jurisdiction to hear the matter. But before I
deal with their argument, something needs to be said about
the status of the file here. There was a directive given
by the Judge that before this matter be set down for
hearing the file must be properly paginated and indexed.
This has not been done, and that is not acceptable. It is
a directive of the court which must be complied with and in
the normal course of events a Judge will not read the file
and therefore not proceed with the matter where the court's
directives were not followed. But for the reasons that I
have arrived at, I have nevertheless read the file so that
I could give a proper direction in this matter. But I must
impress on those who appeared before this court and who
make use of this court that the rules and orders of this
court need to be properly complied with and I am sure that
the time has come for this Court to express its
dissatisfaction for noncompliance with its directives with
punitive orders. Vide Naidoo v Dulus (pty) Ltd C335/98, un
unreported Judgment at paragraph 23.
On papers it would appear that the parties are from
opposing poles as to the actual cause of the dismissal.
Respondent's paper suggests a retrenchment. It is not
proper for the parties to try their luck before this court
where they are doubtful whether the CCMA does have
jurisdiction or not. It is for the parties beforehand to
identify exactly which forum is seized with the matter as
this court is flooded with a number of referrals which, in
the first instance, should not have been referred to it.
Secondly, more time is wasted instead of attending to
deserving matters.
Mr Jibishi, for the applicant, has referred me to two
cases in which he says that the court has dealt with
matters in his view of similar nature. And the first case
he refers me to is the case of SAMRI v Toyota South Africa
Motors (Pty) Ltd (1998) 6 BLR 616. In short, this was a
declaratory order sought by the applicants interdicting the
respondent from introducing change or varied conditions of
employment. That was basically dealt with the motor
vehicle benefit policy for the sake of clarity and, in my
view, his argument does not turn on this case at all.
The second case he referred me to was SACWU and Others
v Afrox Ltd (1998) 2 BLR 171. This deals with dismissal
for operational requirements during the course of a strike.
Again his case does not turn on this.
If one has sight of his referral statement, he says
the following when he deals with the dispute: The dispute
concerns the dismissal of Mr George Galamore and 56 others
by the respondent and he says the dispute further concerns
the unilateral change of terms and conditions of employment
of the employees by the respondent.
The dispute at this stage deals with the dismissal.
In terms of section 191(5)
"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
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)(iii) applies;
(ii)/..
(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 employer may refer the dispute to the Labour Court
for adjudication"
and these are the instances under which this court will be
approached in terms of section 191. If the employee has
alleged, again I emphasise the employee alleges , that the
reason for dismissal is automatically unfair based on the
employer's operational requirements, the employee's
participation in a strike that does not comply with the
provisions of chapter 4 or because the employee refused to
join or was refused membership of or was compelled from a
trade union party to a close shop agreement.
In the case before me these four instances under which
this court will be approached, none of them is contained in
the applicant's referral document. It may well be that in
the course of the hearing during arbitration proceedings it
transpires that the CCMA has no jurisdiction, then the
proceedings will be halted and the matter referred to this
Court. In such event Applicant may bear the brunt of having
to pay costs or otherwise, for failing to identify the
correct forum from the outset. Vide Magubane and Others v
Main Road Saw Mills (Pty) Ltd (1998) 2 BLR 143. The court
specifically sets out, I just want to read the headnote
without discussing the case:
"The court cannot adjudicate a dispute over dismissal for
operational requirements once an employee has chosen
arbitration unless the matter is referred to it by the
director of the CCMA. Employees unilaterally
withdrawing/..
withdrawing from arbitration on learning of the employer's
reason for dismissal. The matter was improperly referred
and remitted to CCMA."
I am of the opinion that I can deal with the case on the
basis of what the applicants have alleged in their papers,
namely that they were dismissed without reasons, without a
hearing. The 57 applicants state that they were dismissed
after a wage proposal was put to the employer and the
employer decided to pay them via the bank so that they
cannot refuse payment and therefore to avoid dealing with
the question of wage negotiations at the time. The view I
take in this matter is that this matter should have not
been referred to this court in the first instance. I am of
the view that I am entitled to stay these proceedings,
among others, in terms of section 158(2),
"If at any stage after this dispute has been referred to
the Labour Court it becomes apparent that the dispute
ought to have been referred to arbitration, the court may
stay the proceedings and refer the dispute to arbitration
with the consent of the parties and, if it is expedient to
do so, continue with the proceedings with the court sitting
as an arbitrator in which case the court may only make an
order that a commission or arbitrator would have been
entitled to make."
I am of the view that it is not expedient in this case
that I deal with it as an arbitrator and I am accordingly
referring this case to arbitration and I am making no order
as to costs.
__________________
S.J NGWENYA A.J.
ACTING JUDGE OF THE LABOUR COURT
ON BEHALF OF APPLICANTS : MR JIBISHI
Instructed by : C A W U
ON BEHALF OF RESPONDENT : MR J Y CLAASEN
Instructed by : Haarhofs Ing.
DATE OF JUDGMENT : 26 JULY 1999