IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
CASE NO:
D99/01
DATE:
2002/01/30
HEARD:
30/01/02
DELIVERED:
30/01/02
In the matter between:
FIDELITY GUARD HOLDINGS
Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First
Respondent
R. PADAYACHEE (AS COMMISSIONER)
Second Respondent
THEMBA XULU & 56 OTHERS Third
Respondent
JUDGMENT DELIVERED BY
THE HONOURABLE MS JUSTICE PILLAY
ON 30 JANUARY 2002
ON BEHALF OF APPLICANT MR R MENTHEY
ON BEHALF OF RESPONDENT MR P JAFTA
TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD - DURBAN
JUDGMENT
PILLAY J
[1] This is an application to set aside a certificate of the second
respondent Commissioner. The employees referred a dispute
relating to their alleged unfair retrenchment to the CCMA for
conciliation.
[2] At the conciliation, the applicant, that is the employer, had asked
the Commissioner for a ruling in limine as the identity of the
individual employees and their addresses had not been
disclosed. Nor had they signed the referral to conciliation.
[3] The conciliation was adjourned on some basis. The applicant
alleges that it was to determine the names and addresses of
the employees. The respondent alleged that it was to canvass
settlement. There is a dispute of fact on what the reason for
the adjournment was. In any event, there is no dispute as to
whether the point in limine was raised at the conciliation.
[4] In any event, the applicant subsequently wrote to the first
respondent, recording its objections to the referral and
pointing out that it would be invalid for two reasons. Firstly,
that the individual employees had not been properly identified
and cited Librapack CC v Moletsane NO & Others 1998 19
ILJ 1169 (LC) in support of its position. Secondly, that the
signature to the referral to conciliation was that of one
Mr Mafsosa, an official of the Human Rights Workers Union,
which was unregistered. That objection is dated the 1st
November 2000 and was faxed on that date to the first
respondent.
[5] The Commissioner, nevertheless, issued a certificate of non-
resolution of the dispute on the 7th November 2000.
[6] Whether the Commissioner received the written objection is not
clear. However, from her response, it would appear that, even
if she had received it, it was her view that as the parties had
consented to the addition of "and others" to the applicant's
citation, that the issuing of the certificate was entirely regular.
She furthermore points out that the signature to the referral
appeared to be not that of Mr Mafsosa.
[7] The information as to what transpired at conciliation is somewhat
thin. Furthermore, it is also not clear as to precisely what the
terms of the agreement were when the parties agreed to the
addition of "and others" to the citation in the referral.
[8] I have considered the issue as to the prejudice that the applicant
might suffer if the certificate were allowed to stand. The
referral related specifically to 56 employees who had been
retrenched. Their names have since been disclosed to the
applicant and prima facie it would appear that the applicant
would not be prejudiced, either if it wished to make an offer of
settlement or to defend its position at adjudication.
[9] However, even if this were to be the case, the more important
question is whether the referral was made by a person
properly authorised to do so. If, as alleged, the union was
unregistered, then it could not refer a dispute on behalf of the
individual employee. That issue, namely whether the union
was registered or not or who referred the matter to the CCMA
is not in dispute.
[10]In those circumstances, the Commissioner had a duty to apply
her mind to the validity of the referral. From her response, it
would appear that she was, firstly, not mindful of the point
raised in limine and, secondly, had not considered particularly
the locus standi of the parties referring the matter to
conciliation at all.
[11]In the circumstances, I grant an order in the following terms:
a) The three applications for condonation are granted with no
order as to costs.
b) On the merits, an order in terms of paragraph 1 of the Notice
of Motion, reviewing and setting aside the Certificate of
Outcome for Conciliation is granted, with no order as to costs.
I make no order as to costs because the opposition was not
frivolous or vexatious and was occasioned partly by the
conduct of the Commissioner.
____________________
JUDGE D. PILLAY