CASE NO: P 1023/2001
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT PORT ELIZABETH
In the matter between –
TRANSPORT AND ALLIED WORKERS’
UNION OF SOUTH AFRICA APPLICANT
TETHANI, BLACKIE, QEQE AND KWEKWANI2ND & FURTHER APPLICANTS
and
FNQ LUXURY COACH TOURS RESPONDENT
___________________________________________________________________
J U D G E M E N T
___________________________________________________________________
The applicants referred a dispute to the Labour Court about the
alleged unfair retrenchment of the four individual applicants (“the
employees”) by the respondent. The application in terms of s 189
of the Labour Relations Act, 66 of 1995 (“the Act”) was placed on
the roll for hearing on 20 November 2001 under Case
No P 307/2000 (“the main matter”). The main matter did not
continue on 20 November 2001 due to the fact that there were
too many matters on the roll.
Subsequent thereto, the respondent filed a notice of motion
seeking the following relief:
“Directing that the dispute concerning whether or not the
further applicants were dismissed be heard separately
from the dispute as to whether or not such dismissal was
unfair in the matter under Case No P307/2000.
Declaring that this Honourable Court does not have
jurisdiction to hear the dispute under Case No P307/2000”
This application was heard before me, and what I have to
adjudicate on is –
1 whether or not there should be a separation of the issues; and
2 whether or not this Court has the necessary jurisdiction to
adjudicate on the dispute.
The facts as set out by the respondent in its founding affidavit
were not disputed. The employees simply contend in their
affidavits that oral evidence should be led.
A court is obliged to satisfy itself that it has jurisdiction before
hearing a matter.
See –
Xaba v Portnet Limited (2000) 21 ILJ 1739 (LAC) at 1750E-F
On the papers, the undisputed facts are the following:
The employees of the respondent are mostly drivers and
cleaners. They are placed in a so-called “pool”. As and when
contracts are secured, drivers and cleaners are called upon to
perform duties on a specific bus for a specific contract. According
to the respondent employees are employed on a “ as and when ”
basis. Certain drivers and cleaners are, however, employed on a
permanent basis and permanent contracts have been secured by
the respondent for certain bus-routes.
An example of a more permanent contract is referred to in the
respondent’s
response to the applicants’ statement of claim, as the “Fish River
Casino Contract”.
This contract was entered into during 1995, and drivers and
cleaners in the “pool”
were approached and their terms and conditions were amended
to allow for more
regular attendance and payment.
The second and further applicants, or the employees in question,
were moved
from the “pool” to the Fish River Casino Contract. When that
contract was
terminated the respondent was obliged to restructure its
operations.
During January 2000 the respondent advised the first applicant of
the termination
of the contract. On 3 February 2000, the applicants were advised
that the
employees would revert to their original conditions of
employment which applied
before the Fish River Casino Contract. The second to further
applicants continued
to be in the employ of the respondent, but on a different basis.
The amended
terms of employment were provided to the second and further
applicants in a
letter dated 22 February 2000. According to the respondent, this
amendment of
conditions of service were implemented following consultations,
or rather attempts
to consult with the applicant.
The facts which appear from the founding affidavit are the
following:
1 Prior to 22 February 2000, Mr Thethani and Mr Kwekwani were
employed as cleaners by the respondent. Subsequent to 22
February 2000 they remained as cleaners performing the same
duty. There has been no break in their contracts of service. Both
employees are still contributing members of the respondent’s
provident fund; their hourly rate of payment remains the same,
but they now work a 30-hour week as opposed to a 40-hour
week.
2 As far as Messrs Blackie and Qeqe are concerned, their position is
much the same. They were employed as bus-drivers. After 22
February 2000 they remained in the employ of the respondent as
bus-drivers and there has been no break in their contracts of
service. Both these employees are also still benefiting from the
respondent’s provident fund.
3 Prior to 22 February 2000 Messrs Blackie and Qeqe were
employed at a weekly wage of approximately R420.00 per week.
Subsequent thereto, they were paid R50.00 a day for the
transport of school children, and this payment formed a type of
basic salary and this income was supplemented by additional
special bus trips which were arranged on an ad hoc basis, and for
which they were remunerated according to the nature of the trip.
The applicants’ terms and conditions of employment were simply
amended. They were not dismissed. The undisputed facts on the
papers demonstrate this. Even if I accept that they were
dismissed, on the facts before me they accepted alternative
employment within the organization of the respondent so as to
avoid dismissal. If they are entitled to a remedy, I am of the view
that they should approach the Commission for Conciliation,
Mediation and Arbitration on the basis that their terms and
conditions of service have been unilaterally and unfairly
amended.
It then follows that on the undisputed facts before me, this Court
does not have the necessary jurisdiction to entertain this
application.
I am not inclined to make a costs order in this matter, as I believe
that costs have been saved and the first applicant did not oppose
the application.
___________________________
E REVELAS
Date of Hearing: 30 November 2001
Date of Judgment: 12 March 2002
R Willcock for Respondent from Joubert Galpin Searle
S. Petrus for Applicants from TAWU