IN THE LABOUR COURT OF SOUTH AFRICA
(HELD IN DURBAN)
Case no:
D875 / 01
In the matter between:
CHEMICAL ENERGY PAPER PRINTING
WOOD & ALLIED WORKERS’ UNION First Applicant
Second & Further applicants
and
PINE TOWN PLASTICS COMPOUNDERS
First Respondent
PP LABOUR HIRE KZN CC
Second Respondent
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JUDGMENT
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LANDMAN J:
1. The individual applicants were employed by Pine Town Plastics
(Pty) Ltd (PPC). PPC purported to transfer a portion of its business
to PP Labour Hire KZN CC (PPL) on 27 April 2000. The applicants
dispute that there was a transfer or a bona fide transfer. They
allege that they were dismissed, I assume, on 1 September 2000
and obliged to sign inferior, they use the term “degraded”,
contracts of employment with PPL. This they did under protest.
2. On 17 October 2000 a dispute concerning an alleged unfair labour
practice was referred to the Metal Engineering Industries
Bargaining Council (the Council). This dispute was not resolved.
There matters stood until the NUMSA instructed attorneys to
attend to the matter. The resignation of the union’s national legal
officer had caused some logistical difficulties in the head office.
3. The attorneys advised that the dispute had been mislabeled and
that an opportunity for conciliation should at least be given to PPL.
Another referral was lodged. This dispute is described in the
referral and includes the alleged dismissal and the circumstances
of the “transfer”. The referral
4. 2
was late. But a certificate of outcome, dated 9 April 2001, was
provided. A copy of the application for condonation of that
referral was handed to me and applicants’ attorney stated that
condonation had been granted. The certificate of outcome
refers to the dispute as one relating to an unfair labour practice.
This is patently incorrect. It would appear that the description in
the previous certificate was carried over to the latest one.
5. The application for relief in this court was lodged timeously as
regards the dispute with PPL and as regards the dispute with PPC
which remained unresolved on 9 April 2001. But the statement of
case in so far as it relates to PPC and the alleged unfair labour
practice which remained unresolved on 17 October 2000, is of
course late. An application for condonation has been lodged (I do
not find the notice of motion to which the affidavit refers in the
bundle). The application is directed at the applicants’ failure to
refer the matter to this court timously after the alleged unfair labour
practice dispute could not be resolved on 17 October 2000.
6. Condonation would be necessary in so far as the applicants intend
claiming relief from PPC based on an alleged unfair labour
claiming relief from PPC based on an alleged unfair labour
practice. The applicants do not rely on an unfair labour practice as
contemplated in item 2 of Schedule 7 to the Labour Relations Act
66 of 1995. Nor is the relief sought against PPC predicated on an
unfair labour practice. This being so the application for
condonation is unnecessary. The application is accordingly
dismissed.
7. The application is accordingly dismissed. This raises the question
of costs. PPC has been successful but it seems to be a Pyrrhic
victory. Nevertheless the applicants brought the application. It was
reasonable for PPC to oppose it. In the result PPC is entitled in law
and fairness to its costs.
8. In the premises the application for condonation is dismissed with
costs.
Signed and dated at BRAAMFONTEIN this 26 th day of February
2002.
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AA Landman
Judge of the Labour Court of South Africa
3
20 February 2002
26 February 2002
Ms S Reddy of Chennels Albertyn & Tanner
Durban.
Adv MM Posemann instructed by John Dua
Attorneys