J4204/00-HVDM
Sneller Verbatim/HVDM
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J4204/00
Date of Judgment: 2001-02-03
In the matter between
RUSTENBURG PLATINUM MINES LTD Applicant
and
R MOLEFE AND 14 OTHERS 1st to 15th Respondent
16TH Respondent
THE COMMISSION FOR CONCILIATION
17TH Respondent
________________________________________________________________
J U D G M E N T
________________________________________________________________
REVELAS J:
1.This is an application in terms of section 158(1)(g) of the Labour
Relations Act 66 of 1995, the (“LRA”), to review and set aside the
following findings of the 16th respondent ("the arbitrator"):
"1. The 17th respondent (“the CCMA”) has the requisite jurisdiction to
conciliate a dispute which the 1st respondent referred to the CCMA for
and on behalf of himself and the 2nd to the 15th respondents.
2. The decision of the commissioner to join the 2nd to 15th respondents as
parties to the dispute which was referred to the CCMA by the 1st
respondent.
3. The decision of the commissioner to issue a certificate in terms of
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JUDGMENT1
section 135(5) of the LRA stating that the dispute remained unresolved
between the parties under circumstances in which no conciliation of the
dispute took place under the auspices of the CCMA."
2.The 15th respondent has been reemployed by the applicant and he does not
form part of the proceedings currently before court.
3.The complaint raised by the applicant at the CCMA was the fact that the
first respondent, Mr Molefe, had signed a referral form and purported to
do so on behalf of the other applicants. Their names were attached to
the LRA 7/11 form in a list also stating their identification numbers
and bearing their signatures.
4.The applicant argues that the Labour Relations Act provides an exhaustive
list of representatives who may act on behalf of employees and
employers. The applicant argues that an employee is not entitled to act
on behalf of other employees. I was referred to judgments dealing with
the aspect of representation. In particular, I was referred to the
judgment in Impact Maintenance Services v The CCMA and Others
(unreported case no. J4203/98) in which I held that a labour consultant
may not represent employees and may not sign a referral form on behalf
of a party referring a dispute to the CCMA. This judgment was arrived
at on the basis of the exhaustive list of persons who may act on behalf
of others in terms of the Act. Section 138(4) of the LRA provides as
follows:
“In any arbitration proceedings, a party to the dispute may
appear in person or be represented only by
(a)a legal practitioner ;
(b)a director or employee of the party; or
(c)any member, officebearer or official of that party’s registered trade
union or registered employers’ organisation.”
5.In terms of this section, an employee may act in person, or be represented
J4204/00-HVDM
by “ any member ” of his or her trade union. (Section 138 (4)(c)). An
employee may therefore be represented by a coemployee, if they both
belong to a union.
6.If an employee who is not a union member, is precluded from not filling in
a form on behalf of other employees referring a dispute to the
commission or the CCMA, this could lead to absurd results. Not all
employees are represented by unions. Unfortunately and frequently mass
dismissals occur in this country. In a matter where 400 employees are
dismissed en masse , it would be absurd to require from each of them, to
fill in a LRA 7/11 form.
7.Whereas it is quite plainly the legislator’s intention to limit the
category of persons who may represent employers and employees, the
legislature also did not intend to condemn nonunion employees in a mass
dismissal dispute to the inconvenience as demonstrated in this example.
8.I agree with counsel on behalf of the applicant that it could be highly
prejudicial to an employer if one employee fills in a form and later
several employees who were not identified before, are joined and added
to the dispute.
9.On the facts in this case there clearly is no prejudice to the applicant.
Mr Molefe had carefully listed each and everyone of the employees. He
had even gone as far as to identify them by listing their identification
numbers. The language of the referral form is clear. There are several
references to "we" when he speaks of the other applicants. The entire
tone of the referral form reflects that Mr Molefe had completed the LRA
form on behalf of the other respondents in this matter.
10.Consequently the arbitrator or commissioner cannot be criticised for
joining the 1st to 15th respondents as employees. In the circumstances
the application is dismissed with costs.
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JUDGMENT3
Padi Seabela Inc.
Adv. M J van As, instructed by Leppan Beech Att.
________________
E. Revelas