“Reportable”
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO. J5193/00
In the matter between:
RUSTENBURG PLATINUM MINES LIMITED
(RUSTENBURG ECTION) Applicant
and
S MONNAPULA & SIXTEEN OTHERS 1 ST TO 17 TH
Respondents
L L LEBELO 18 TH
Respondents
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION 19 TH
Respondents
JUDGEMENT
GAMBLE AJ
1. The 1 st to 17 th respondents (“ the individual respondents”) were
dismissed from the employ of the applicant on 10 May 2000 after allegedly
participating in unlawful industrial action. They were apparently part of
group on 222 employees who were dismissed on that day.
2. The dismissal was referred to the 19 th respondent (“the CCMA”) on 17
May 2000 for conciliation. The prescribed referral document (form 7.11)
was signed only by the 1 st respondent. However, in the appropriate
section of the form in which the relevant facts relating to the dispute are to
be recorded the words “we” and “our” were used on a number of
occasions.
3. Attached to the form 7.11 was a hand written document containing the
names of the individual respondents (other than 1 st respondent) and a
company referral number in respect of each individual. The said annexure
bears no signatures.
4. When the matter came before the 18 th respondent (“the Commissioner”)
for conciliation on 27 July 2000, the applicant took a jurisdictional point in
respect of the 2 nd to 17 th respondents contending that they had not
properly referred their disputes to the CCMA, in particular because they
had not signed any form(s) 7.11. It was also argued that 1 st respondent
lacked the locus standi to refer a dispute for and on behalf of the
remaining individual respondents.
5. Having heard oral submissions on the points in limine on 27 July 2000 the
Commissioner gave an ex tempore ruling in favour of the individual
respondents. The applicant was evidently not happy with this and
requested the Commissioner to provide a written copy of the ruling
(presumably with reasons) in order that it could consider its position
(presumably the applicant was contemplating reviewing the
Commissioner’s ruling.) The Commissioner undertook to do so.
6. On 28 July 200 the applicant received from the Commissioner a certificate
in terms of section 135(5) of the Labour Relations Act 66 of 1995 (“the
LRA”) in which it was recorded that the dispute remained unresolved as at
27 July 2000. On the strength of that certificate the individual respondents
filed a request for arbitration (on the prescribed form 7.13) on 27 July
2000. This form was accompanied by a typed document setting out the
names and company reference numbers of the second to seventeenth
respondents together with their individual signatures.
7. The applicant now seeks to review and set aside:
7.1 the Commissioner’s ruling that the 2 nd to 17 th respondents had properly
referred their dispute to the CCMA;
7.2 the certificate of nonresolution of the dispute issued by the
Commissioner in terms of section 135(5) on 27 July 2000.
8. In the founding affidavit filed in support of the review application the
applicant makes the bald assertion that “ the first respondent purported
also to refer the dispute on behalf of sixteen other persons whose names
appear on an annexure to the referral.”
9. In his opposing affidavit 1 st respondent stated the following:
“ We referred a dispute to the CCMA in terms of section 191(1) of Act 66
of 1995. We referred the matter as a group because we were dismissed
as a group for the same alleged misconduct and on the same day. I deny
that in the referral I purported to be referring on behalf of sixteen other
persons. Each one of us signed on a document which formed part of the
referral indicating he is also referring as part of a group.”
Later in the affidavit this contention is repeated. There are confirmatory
affidavits filed by each of the remaining individual respondents.
10. The relevant provisions of section 191(1) of the LRA read as follows in
May 2000:
“ 191(1) If there is a dispute about the fairness of a dismissal, the
dismissed employee may refer the dispute in writing within 30 days
of the date of dismissal to
…(b) the Commission, if no council has jurisdiction.”
11. It has been held that a referral to the CCMA was irregular where it was signed
not by the employee concerned but by a labour consultant. Rustenberg
Platinum Mines Ltd (Rustenberg Section) v CCMA and other (1998) 19 IJL
327 (LC).
12. However, there are other decisions of this court which suggest that such a
referral may be made in a representative capacity. Etschmailer v CCMA &
others (1999) 20 IJL 144 (LC) p150 para 50. Moolman Brothers v Gaylard
n.o (1998) 19 IJL 150 (LC) p155 D. See also Brassey: EMPLYOMENT
AND LABOUR LAW VOL 3 A8: 54.
13. I prefer the latter approach rather than the earlier Rustenberg Platinum Mines
case which seems to me to be an unduly restrictive and overtly technical
approach. The present case is, however, slightly different in that there is a
joint referral as opposed to a referral in a representative capacity.
14. If regard be had to the directions contained on the first page of the
erstwhile form 7.11, it will be noted that the drafters of the form
(promulgated under Ministerial Regulations) included the following in an
effort to assist applicants:
“WHO FILLS IN THIS FORM?
Employer, employee, union or employer’s organization.”
15. And on the second page of the erstwhile form 7.11 (opposite the section reserved
for filling in details of the referring party) there is an advisory block which
contains the following: “ If more than one party is referring the dispute,
write their details on a separate page and staple it to this form.” While
the current form 7.11 in use is worded slightly differently, the advice
remains the same in both instances.
16. I am mindful of the fact that the regulations are subordinate to the LRA
itself, but I do not see any inconsistency between the two and, in
particular, nothing in the LRA which precludes a referral by an agent on
behalf of a principal or as in the present case, a joint referral relating to
one incident in which all the complaining employees are listed but where
only one (or some) of them has signed the referral form. Indeed the
individual respondents complied with the directions in the form 7.11 and
recorded their details in the form in the required manner.
17. In my view, therefore, the Commissioner was correct in finding that there had
been a valid referral by the individual respondents (in the form of a joint referral)
and that she had the necessary jurisdiction to conciliate the dispute. Librapac cc
v Moletsane no and others (1998) 19 IJL 1159 (LC ) at p1159 para 56.
18. I might add that requiring individual referrals by each employee in the
case of a mass dismissal (such as often occurs in unlawful strikes) would
lead to an intolerable situation at the CCMA and no doubt to the clogging
of an already overburdened system
19. Accordingly I hold that the first ground of review advanced by the
applicant is without substance.
20. I turn now to the certificate issued by the Commissioner in terms of section
135(5) of the LRA. The issuing of such a certificate constitutes an administrative
decision which remains valid until set aside by the Labour Court in review
proceedings Cleanrite Droogskoonmakers v Commission for Conciliation,
Mediation and Arbitration and other (1999) 20 IJL 1747 (LC) at 1751 G.
21. In the opposing affidavit, 1 st respondent states that
“(6) The representatives of the applicant refused to proceed with the
conciliation proceedings after the presiding Commissioner ruled
against their points in limine.
(7) I, therefore, submit that the certificate was properly issued
because the dispute remained unresolved as a result of the refusal of
the applicant’s representatives to proceed with the conciliation
proceedings.”
22. In the replying affidavit the applicant stated that the Commissioner had
postponed the conciliation sine die after handing down her ruling in order to
afford the applicant an opportunity to consider its legal position. In such
circumstances, it was contended, no attempt was made at conciliation on
27 July 2000.
23. It is clear that the applicant did not wish to conciliate on 27 July 2000
because it considered that the ruling of the Commissioner on the
jurisdiction point was wrong. Evidently it did not wish to conciliate with
persons who were possibly not properly before the Commissioner.
24. The 19 th respondent has filed a notice stating that it does not wish to deal
with any of the facts and submissions deposed to by the applicant in its
founding papers. However, it did purport to confirm the facts contained in
the certificate.
25. As a matter of fact, the allegation in the certificate that the dispute “remains
unresolved as at 27072000” is correct. This fact is not disputed by the
applicant which states that nonresolution of the dispute was due to a
failure to conciliate. Of course, the failure to conciliate was directly
attributable to the applicant’s stance adopted at the hearing.
26. Immediately upon the issue of he certificate in terms of section 135(5) of
LRA, the individual respondents filed a request for arbitration on the
prescribed form 7.13. They obviously wanted to get on with the matter
and no doubt requested the Commissioner to issue the certificate. Given
the attitude adopted by the applicant (see para 23 above) the individual
respondents cannot be blamed for presuming that their erstwhile employer
did not wish to conciliate the dispute. Their request to the Commission to
issue the certificate was therefore not unreasonable nor irregular.
27. In the Cleanrite case , supra, the court noted that the issue of a certificate
of outcome in terms of section 135 (5) of the LRA is an administrative
decision that has considerable significance for the parties. Where the
parties are going to rely on the certificate, for example, to embark on a
strike which they believe to be protected, the Commissioner must verify
the correct position before issuing the document (see para 20 of the
Cleanrite judgment).
28. On the other hand, this court has held that it is not the duty of the commissioner
“to police conciliation meetings or to second – guess the parties when
they advise that their dispute has been resolved.” ( Van Niekerk v Zondi
NO and another (2001) 22 IJL 1202 (LC))
29. While the conciliation proceedings play a very important part in any
dispute resolution procedure (to the extent that they offer the parties an
early opportunity to resolve their differences) they should not be permitted
to be manipulated by a party who evidently has no intention to settle the
dispute.
30. In the present case, there has been a number of cases brought before
this court by the applicant (against various employees involved in CCMA
proceedings arising out of the aforementioned mass dismissal.) These
cases have in the main raised procedural objections to the CCMA
proceedings ranging from jurisdictional complaints to the allegedly
irregular issue of outcome certificates in a number of differing factual
scenario’s. In some of those matters orders have already been given by
this court.
31. In the circumstances it would appear to me that the applicant’s approach
to these dismissals has been to avoid, rather than promote, conciliation.
The individual respondents were therefore entitled to assume, in the
present matter, that the conciliation process was not going to lead to the
resolution of the dispute and were correct in informing the commissioner
of this fact. Clearly the conciliation had “failed” as contemplated in the
LRA.
32. Accordingly, I am not persuaded that the Commissioner committed any
reviewable irregularity as contemplated by section 158(1)(g) of the LRA in
issuing a certificate under section 135(5).
33. Finally, I turn to the time lapse which occurred in the present case
between the date of alleged irregularity on the part of the Commissioner
(27July 2000) and the date upon which the application for review was
lodged (2 November 2000).
34. There is no time limit prescribed in the LRA for the initiation of such
proceedings. Accordingly they must be institituted within a reasonable time.
This court has held that a period of 6 weeks is to be considered as reasonable, due
regard being had to the time limits being prescribed by section 145 of the LRA.
Ruijgrok v Foschini (Pty) Ltd and another (1999) 20 ILJ 1284 (LC) 1287
para 201288 para 22.
35. The delay of more than 3 months in the instant case is, in my view,
unduly long in the circumstances and has not been explained by the
applicant, nor has the applicant made an application for condonation for
the late filing of the application.
36. In all the circumstances I am of the view that the application should fail.
The individual respondents were previously represented by attorneys and
there is no reason why they should not be entitled to recover their costs in
this regard.
37. The following order is made:
37.1 The application is dismissed.
37.2 The applicant is ordered to pay the costs of suit of the 1 st to 17 th
respondents incurred up to the withdrawal of their former attorneys of
record.
____________________
P. A. L GAMBLE
Acting Judge of the Labour Court
Date of hearing : 27 June 2003
Date of Judgement : 9 July 2003
For the Applicant : Adv. M.J Van As instructed by Leppan
Beech Attorneys
For the 1 st to 17 th Respondent : Mr. M. Mogashoa of the Commercial
Workers Union of S.A.