IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NO:
C828/01
1422002
In the matter between:
NATIONAL EDUCATION HEALTH AND ALLIED Applicant
WORKERS UNION
and
MEDICOR (PTY) LIMITED t/a VERGELEGEN Respondent
MEDI CLINIC
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JUDGMENT
______________________________________________________
LANDMAN J:
1. The National Education Health and Allied Workers Union
("NEHAWU") and Medicor (Pty) Ltd t/a Vergelegen Medi Clinic
accumulated some four disputes connected with the outsourcing of
the laundry division at the clinic. Eventually the parties decided to
consolidate the disputes and to refer the consolidated dispute to the
Labour Court. This decision was taken during a conciliation meeting
at the Commission for Conciliation, Mediation and Arbitration ("the
CCMA").
2. The parties agreed that the director of the CCMA would be
requested to refer the consolidated dispute to this Court. I need not
deal with the validity or desirability of this strategy for NEHAWU has
abandoned three of the disputes. NEHAWU referred the fourth
dispute, the principal dispute, being the alleged unfair dismissal on
31 May 2001 of its individual members who were employed by
Medicor. This Court of course, has jurisdiction to entertain disputes
relating to the alleged unfair dismissal of employees for operational
reasons. It is, however, Medicor's contention that the referral of the
dispute to this Court was premature.
3. Medicor's principal submissions are the following. The contracts of
employment of NEHAWU's members terminated on 31 May and the
members left the services of Medicor on 31 May 2001. The date of
dismissal as defined in section 191 of the Labour Relations Act 66 of
1995 was 31 May 2001. NEHAWU referred this dispute to the CCMA
on 15 May 2001, this is common cause. It is submitted that this was
premature and that the referral to conciliation was therefore invalid.
As a consequence a jurisdictional fact for this Court to entertain the
present application is lacking and the application should be
dismissed.
4. Mr Whyte, who appears for NEHAWU, submits that the date of
dismissal in terms of section 190(1) of the LRA was about 26 April
2001. He submitted that NEHAWU's members' services were
terminated on 26 April. They received one month's notice which was
to end on 31 May 2001. In terms of the retrenchment agreement they
were not required to work this period of notice. Mr Whyte points out
that the members had been suspended on 30 March 2001 and had
not worked since their first dismissal which took place in August
2000. It is submitted that Medicor's reliance on 31 May as the date
of termination confuses termination of contracts with the termination
of the services of NEHAWU's members. It is pointed out that these
members performed no service after August 2000 and certainly none
after 26 April 2001.
5. Mr Whyte relies on section 190(1) of the LRA which provides that the
date of dismissal is the earlier of:
(a) the date on which the contract of employment terminated; or
(b) the date on which the employee left the services of the employer.
Mr White is entirely correct in saying it is not entirely clear what the
legislature meant by the expression "left the services of the
employer". It is also submitted that on a literal interpretation of
section 190(1) the Court should find that the individual members left
the services of Medicor on the date that they were advised of their
dismissal, that is 26 April 2001. He submitted that this is the date on
which their services were terminated in terms of the common law.
6. Section 190(1) of the LRA contemplates, most peculiarly, that the
date of dismissal could predate the date on which the contract of
service terminates. Although there may be unfortunate
circumstances and various anomalous situations which could arise,
on the plain meaning of section 190(1) the date of dismissal of the
individual applicants in this case was either 26 April 2001 or 15 May
2001. On NEHAWU's version it is possible that the date of
dismissal could even have been earlier. However NEHAWU are
prepared to accept 26 April 2001 as the date of dismissal.
7. In most cases the leaving of their service is an incomplete act and
does not constitute the deemed date of dismissal until the contract of
employment is terminated. I leave aside of course the situation
relating to employees as defined in the LRA who do not provide
services in terms of a contract. It follows, in my view, that the referral
to conciliation which took place on 15 May 2001 was a valid referral
and it constitutes the jurisdictional fact which entitles this Court to
entertain the present application which is based on the alleged unfair
dismissal of the individual members for operational requirements.
8. It follows that the point in limine relating to the premature referral of
the dispute falls to be dismissed.
9. This brings me to the next point in limine , namely that NEHAWU has
not exhausted its internal remedies before referring the dispute for
conciliation. It is Medicor's contention that the union withdrew
prematurely from the consultation process. This may be so, but it
does not bar the institution of this application. It may damage
NEHAWU's case but that is a risk which the union runs, assuming of
course that consultation was still ongoing. I am not required to
express any opinion on this and I do not do so. This point in limine
must also fail.
11. Finally something was made of the union's alleged failure to draft the
statement of case in accordance with Rule 6(1) of the Rules of Court.
Other than a complaint that Medicor had to search for the essence of
the union's case, Medicor does not set out the instances in which the
statement of case fails to comply with the rule. In the absence of a
specific complaint and taking into account that Medicor was able to
plead over, it would be inappropriate for me to rule against the union
on this issue.
10. In the circumstances the points in limine referred to above are
dismissed with costs.
Signed and dated at BRAAMFONTEIN this 26 th day of February
2002.
_______________
AA Landman
Judge of the Labour Court of South Africa