THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JS 725/18
In the matter between:
ASSOCIATION OF MINEWORKERS AND
CONSTRUCTION UNION (AMCU) obo KHOZA
AND 130 OTHERS Applicant
and
JUST COAL (PTY) LTD First Respondent
BURBANK TRADING 656 (PTY) LTD Second Respondent
Heard: 14 August 2026
Delivered: 25 August 2026
This judgment was handed down electronically by consent of the parties’ representatives by
circulation to them via email. The date for hand-down is deemed to be 25 August 2026.
JUDGMENT
PRINSLOO, J
Background facts
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised
TDM 25/08/2026
__________ ______________
Signature Date
2
[1] Around March 2018 the First Respondent (Just Coal) was issued with a notice
in terms of section 54 of the Mine Health and Safety Act 1, in terms of which
Just Coal was ordered to cease all operations immediately until the
Department of Mineral Resources and Energy was satisfied that all safety
requirements were satisfied and that the mine was safe to conduct operations.
Operations at Just Coal were suspended until 5 June 2018.
[2] On 18 April 2018, a bundle of documents was delivered to the Applicant’s
(AMCU) offices, comprising 98 notices of dismissal in respect of certain of the
individual applicants and 33 notices of non-renewal of contracts.
[3] The 98 notices of dismissal stated that the individual applicants were
dismissed for gross misconduct, namely for participating in an illegal strike and
for committing acts of misconduct during the said strike action.
[4] The 33 notices of non-renewal recorded that:
‘You are informed that Burbank Trading 656 (Pty) Ltd hereby notifies you that
the contract of employment that you signed with the company has come to an
end on 31 March 2018. Based on the employer’s needs and other related
reasons, we regret to inform you that the company will not be renewing your
employment contract on 1
st April 2018 and you are not expected to report for
duty from the date of this notice.’
[5] On 24 April 2018 AMCU, on behalf of the individual applicants, referred an
unfair dismissal dispute to the Commission for Conciliation, Mediation and
Arbitration (CCMA). The dispute was referred in respect of Just Coal as the
employer.
[6] On 18 May 2018, the CCMA issued a certificate of outcome indicating that the
unfair dismissal relating to misconduct, as between AMCU, on behalf of Khoza
and 130 others, and Just Coal, remained unresolved and could be referred to
arbitration. The dispute was subsequently referred to arbitration, but at the
arbitration the CCMA’s jurisdiction was called into question. On 10 July 2018
arbitration the CCMA’s jurisdiction was called into question. On 10 July 2018
the presiding commissioner issued a jurisdictional ruling in which she found
1 Act 29 of 1996.
3
that the CCMA lacked jurisdiction and that the matter should be referred to the
Labour Court for adjudication.
[7] On 28 September 2018 AMCU filed a statement of claim and sought relief
against Just Coal. The late filing of the statement of claim was condoned on
20 May 2022.
[8] On 12 July 2022 , Just Coal delivered a statement of response. Just Coal
pleaded that it was not the employer of all the individual applicants, as the 33
individuals whose contracts of employment were not renewed were in fact
employed by the Second Respondent (Burbank) . As there was no conciliation
referral against Burbank, the 33 individuals were not properly before the Court,
and the Court lacks jurisdiction to adjudicate their claim.
[9] On 26 January 2023 AMCU, on behalf of the 33 individuals, referred a dispute
to the CCMA against Burbank. The referral was accompanied by an
application for condonation, as the dispute was referred late. AMCU explained
that it was only when Just Coal filed a statement of response that it was
alleged for the first time that it was not the employer of the 33 individuals, but
that they were instead employed by Burbank.
[10] In AMCU’s condonation application, it was explained that the dispute referred
on behalf of the 33 individuals was an unfair dismissal dispute in terms of
section 186(2) of the Labour Relations Act (LRA)
2, or alternatively, one in
terms of section 198B of the LRA.
[11] On 14 February 2023 Burbank opposed the condonation application filed with
the CCMA and submitted that condonation should be refused inter alia
because AMCU had no prospects of success. Burbank stated that the claim
has become prescribed because more than three years ha d elapsed since the
33 individuals’ contracts of employment terminated by effluxion of time.
Furthermore, at the time of their termination of service, the 33 individuals were
notified that their employment contracts with the company ended on 31 March
2018.
2 Act 66 of 1995, as amended.
4
[12] On 16 February 2023, AMCU withdrew the referral, which was made on behalf
of the 33 individuals to the CCMA.
[13] On 24 May 2024 AMCU filed an application in terms of Rule 22 of the Rules of
the Labour Court 3 to join Burbank as the second respondent in case number
JS 725/18. Burbank opposed the application.
Joinder: general principles
[14] Rule 22 of the previous Rules of this Court provided for joinder as follows:
‘(1) The court may join any number of persons, whether jointly, jointly
and severally, separately, or in the alternative, as parties in
proceedings, if the right to relief depends on the determination of
substantially the same question of law or facts.
(2) (a) The court may, of its own motion or on application and on
notice to every other party, make an order joining any
person as a party in the proceedings if the party to be
joined has a substantial interest in the subject matter of
the proceedings.
(b) When making an order in terms of paragraph (a), the
court may give such directions as to the further procedure
in the proceedings as it deems fit, and may make an order
as to costs.’
[15] It is trite that for parties to be joined to particular proceedings, they must have
a direct and substantial legal interest in the matter such as to make them
necessary parties to the proceedings. Only parties that would be directly
affected by the court’s order , or where the order cannot be sustained or
carried into effect without prejudicing such a party, are necessary parties to
the proceedings.
3 Repealed and replaced with the Rules Regulating the Conduct of the Proceedings of the Labour
Court. Published 3 May 2024 (GN 50608). Effective 17 July 2024.
5
[16] The Court may join parties where the right to relief depends on the
determination of substantially the same question of law or facts.
[17] In regard to joinder, the Constitutional Court held in Snyders and Others v De
Jager
4 that:
‘A person has a direct and substantial interest in an order that is sought in
proceedings if the order would directly affect such a person’s rights or
interests. In that case the person should be joined in the proceedings. If the
person is not joined in circumstances in which his or her rights or interests will
be prejudicially affected by the ultimate judgment that may result from the
proceedings, then that will mean that a judgment affecting that person’s rights
or interests has been given without affording that person an opportunity to be
heard. That goes against one of the most fundamental principles of our legal
system. That is that, as a general rule, no court may make an order against
anyone without giving that person the opportunity to be heard.’
[18] In casu, it i s common cause that the 98 individual applicants were dismissed
on 10 April 2018 and that the 33 individuals were issued with a notice of non-
renewal of contract, dated 29 March 2018. All the aforesaid termination
notices were issued on a Joe Singh Group (Pty) Ltd letterhead, the holding
company of which Just Coal and Burbank are part, and they were delivered to
the offices of AMCU on 18 April 2028. It is also common cause that Just Coal
and Burbank have a close commercial relationship.
[19] Generally, for convenience, and in the interests of expedition and the
administration of justice, the joinder of a necessary party is permitted.
However, considering the facts and circumstances of this case, the
determination of the joinder application is not merely dependent on what is
convenient.
AMCU’s joinder application
[20] Central to the determination of any dispute before this Court is the issue of
jurisdiction.
4 (2017 (5) BCLR 604 (CC) at para 9.
6
[21] In accordance with the provisions of section 191(1) of the LRA, a dismissed
employee must refer a dispute to the CCMA or relevant b argaining council
within prescribed time frames. Upon a certificate of outcome having been
issued, in accordance with the provisions of section 191(5)(b)(iii) of the LRA,
the dispute may then be referred to this Court for adjudication. Under the
provisions of section 157(4) of the LRA, this Court ‘ may refuse to determine
any dispute’ if the Court is not satisfied ‘ that an attempt has been made to
resolve the dispute through conciliation.’
[22] In casu it is common cause that when the unfair dismissal dispute was
referred to the CCMA , Burbank was not a party to that dispute, it was not a
party to the conciliation proceedings and, by necessary implication , the
jurisdictional requirement under section 191(1)(a) of the LRA was not satisfied.
[23] AMCU’s case, however, is that although Burbank was not cited as a party and
was not a party to the conciliation, it does not preclude its joinder. Reliance is
placed on the operation of section 200B of the LRA and AMCU seeks to hold
both respondents liable for the unfair dismissal of the 33 individuals.
[24] The gist of the Applicant’s case is that Burbank should be joined as a
respondent in the main proceedings, as it has a direct and substantial interest
in the subject matter of the proceedings and, in the main, that it was not
necessary to refer a dispute against Burbank to conciliation in the first place.
[25] This proposition calls for a proper consideration of the legal position.
[26] Section 200B of the LRA provides that:
‘(1) For the purposes of this Act and any other employment law ,
“employer” includes one or more persons who carry on associated or
related activity or business by or through an employer if the intent or
effect of their doing so is or has been to directly or indirectly defeat the
purposes of this Act or any other employment law.
purposes of this Act or any other employment law.
(2) If more than one person is held to be the employer of an employee in
terms of subsection (1), those persons are jointly and severally liable
for any failure to comply with the obligations of the employer in terms
of this Act or any other employment law.’
7
[27] In Masoga and Another v Pick n Pay Retailers (Pty) Ltd and Others 5 the LAC
dealt with the scope and the effect of section 200B of the LRA. The LAC found
that section 200B does not postulate a general test for determining whether a
particular person or entity is the true employer of a particular employee. It was
held that:
‘The effect of section 200B, while crucial, is merely to fix or extend the liability
that would ordinarily be that of the employer, as per the traditional tests, to
another or others, who carry on as an associated or related activity or
business by or through an employer. They are regarded as employers for the
purposes of liability. But it is only if they are in an associated or related
business with the employer which is intended to defeat, or has the effect of
defeating, the purposes of the LRA or any other employment law, either
directly or indirectly, that they would be treated as the employer. The purpose
for this is clear from section 200B(2). They are regarded or treated as such for
the purposes of liability – they are held jointly and severally liable for a failure
to comply with the obligations of an employer in terms of the LRA or any other
employment law. In other words, section 200B(1) defines “employer” for a very
specific purpose and that purpose is found in section 200B(1) read with
section 200B(2). The section cannot be utilised generally for making persons
or entities the employer(s) of others.
That section 200B was not intended as a general test is further borne out by
the wording of that section. It, effectively, contains a deeming provision. While
it contemplates that a single person may be the employer, it does not provide
criteria for determining what makes that one person the employer, other than
for the purposes of liability in a situation where that one person is party to a
simulated arrangement or sham, the true intent, or effect of which is to defeat
the purposes of the LRA, or any other employment law; and there is a failure
the purposes of the LRA, or any other employment law; and there is a failure
by that person to comply with the obligations of an employer (i.e. in terms of
those provisions). Any other person or entity which is complicit in this
subterfuge is treated as an employer for the purposes of liability. She, he, or it
is jointly and severally liable with anyone else held to be an employer, in terms
of the section, and in respect of the employer’s obligations under the LRA and
/or those laws.
5 (2019) 40 ILJ 2707 (LAC) at paras 47-50.
8
The rationale for section 200B is set out in the memorandum of objects that
accompanied the 2014 LRA Amendment Bill. The purpose of the section is
said to be: “to prevent simulated arrangements or corporate structures that are
intended to defeat the purposes of the LRA or any other employment law, and
to provide for joint and several liability on the part of persons found to be
employers under this section for any failures to comply with an employer’s
obligations under the LRA or any employment law. This is particularly
important in the context of subcontracting and outsourcing arrangements if
these arrangements are subterfuges to disguise the identity of the true
owner.”
Because of its breath, section 200B could be used to scrutinise any
conceivable relationship or arrangement for purposes of liability, provided that
a case for such scrutiny has been made out, and it is done fairly. It is one of a
suite of provisions whereby the Legislator seeks to stop complex contractual
and other schemes used by true employers to avoid their obligations under
the Labour legislation. It is conceivable that it may not be easy to determine
who the true employer, or owner, is for the purposes of liability arising from a
failure to comply with the obligations in terms of the LRA, or other employment
laws. This may be due to the complexity of the stratagems, or devices used by
those wanting to avoid their obligations.’
[28] It is evident from the LAC’s dicta that section 200B is not a standalone test to
label someone or any entity ‘employer’. It must be established and proved
that, first, separate entities carry on related or interconnected businesses or
activities; second, that the structure or operation is a sham or simulated reality;
and third, that the primary intent or effect is to defeat the purposes of the LRA
or any other employment law. Evidence must be presented to show that the
corporate structure, subcontracting, o utsourcing, or whatever other deal is a
corporate structure, subcontracting, o utsourcing, or whatever other deal is a
disguised sham designed to avoid legal obligations and to defeat protection
afforded to employees under the LRA or other employment laws.
[29] Section 200B does not find application where there is no proof that the
business operation or structure is a sham, and where it is in fact no more than
a close association, ordinary group-company relationship between businesses
or entities or a genuine, bona fide commercial arrangement.
[30] In casu the Applicant’s case is that Just Coal and Burbank should be held
liable for the unfair dismissal of the 33 individuals, by operation of section
9
200B, because there is a close commercial relationship between them. The
Applicant mentioned specific facts to show that there is indeed a close
commercial relationship, inter alia that they are both part of the Joe Singh
Group of companies, they share the same registered address, postal address
and email address and that the employees reported to Just Coal for service.
[31] Burbank did not dispute that there is a close commercial relationship with Just
Coal, but disputed that they share the same principal place of business or
email address. They are both part of the Joe Singh Group of companies, but
they are separate entities and businesses, operating in different business
spheres. Burbank explained that the 33 individuals signed fixed- term contracts
with Burbank but performed duties at Just Coal’s premises as part of the
services Burbank provided to Just Coal. The fact that Burbank is part of the
Joe Singh Group of companies does not presuppose that the 33 individuals
were employed by the same entities.
[32] AMCU has to show, prima facie at least, not only that Just Coal and Burbank
carry on related or interconnected businesses or activities, but also that the
structure or operation is a sham with the primary intent or effect of defeating
the purposes of the LRA.
[33] The close business relationship is undisputed. In the application for joinder
AMCU merely stated that it would seek to demonstrate, at the trial, that Just
Coal carried on an associated or related activity or business by or through
Burbank and vice versa, and that the intent or effect has been to directly or
indirectly defeat the purpose of the LRA and B asic Conditions of Employment
Act (BCEA).
6
[34] This is disputed by Burbank, whose version is that the 33 individuals were
employed by Burbank and some of the signed fixed- term contracts were
attached. Burbank’s version is that it rendered services to the greater Joe
Singh Group of companies and as such, provided labour services at Just Coal,
Singh Group of companies and as such, provided labour services at Just Coal,
which is not in breach of the LRA or the BCEA.
[35] In my view there are several difficulties with the Applicant’s joinder application.
6 Act 75 of 1997.
10
[36] First, the requirements of section 200B have not been met. The Applicant has
not presented any evidence to show that the close business relationship
between Just Coal and Burbank was indeed a sham or simulation with the
primary intent or effect to defeat the purposes of the LRA or the BCEA.
Evidence must be presented to show that the corporate relationship is a
disguised sham designed to circumvent the LRA or the BCEA and to escape
legal liabilities.
[37] Burbank presented fixed term contracts signed by certain of the 33 individual
employees. It is evident from the contracts that they were entered into
between an individual and Burbank Trading as the employer, with a
termination date of 31 March 2018.
[38] There was not a single credible, substantiated averment that Just Coal and
Burbank engaged in subterfuge when Burbank employed the 33 individuals on
fixed-term contracts and they rendered services at Just Coal as part of a
service rendered by Burbank, or that it was a sham to avoid legal obligations
toward the employees, or that it had that effect.
[39] It is trite that there is no general, free- floating discretion available to a court to
disregard a corporate entity’s separate juristic personality. This was confirmed
in Cape Pacific Limited v Lubner Controlling Investments (Pty) Ltd and others
7 (citing dicta from Dadoo Ltd and others v Krugersdorp Municipal Council
1920 AD 530) where it was held that:
‘Whatever the position, it is probably fair to say that a court has no general
discretion simply to disregard a company’s separate legal personality
whenever it considers it just to do so.’
[40] It was also held that where fraud, dishonesty or other improper conduct are
found to be present , other considerations will come into play. The need to
preserve the separate corporate identity would in such circumstances have to
be balanced against policy considerations which arise in favour of piercing the
corporate veil.
7 1995 (4) SA 790 (AD) at para 29.
11
[41] The existence or genuineness of the written, signed employment contracts
entered into between the individuals and Burbank was not disputed, and there
is no evidence presented to doubt the veracity of the explanation tendered by
Burbank or to find that the fixed- term contracts had the effect, or w ere
intended to be utilised by the employer to avoid its obligations under the LRA,
or other labour laws.
[42] Second, the issue of referral for conciliation remains.
[43] In National Union of Metalworkers of SA on behalf of members and others v
Bell Equipment Co SA (Pty) Ltd 8 and National Union of M etalworkers of SA v
Intervalve (Pty) Ltd and others9 (Intervalve), it was confirmed that referral for
conciliation is indispensable and that it is a precondition to the Labour Court’s
jurisdiction over unfair dismissal disputes. The Constitutional Court considered
the issue of conciliation in Intervalve and held that:
‘Section 191(5) stipulates one of two preconditions before the dispute can be
referred to the Labour Court for adjudication: there must be a certificate of
non-resolution, or 30 days must have passed. If neither condition is fulfilled,
the statute provides no avenue through which the employee may bring the
dispute to the Labour Court for adjudication. As Zondo J shows in his
judgment, with which I concur, this requirement has been deeply rooted in
South African labour law history for nearly a century. We should not tamper
with it now.’
[44] The Applicant, however, argued that t here are two key judgments which are
dispositive of the fact that Burbank was not a party to conciliation and which
support its position that it does not preclude Burbank’s joinder . The first is
Temba Big Save CC v Kunyuza and others (Temba Big Save CC),10 wherein
the LAC considered a situation in which the Labour Court had permitted the
joinder of Temba Big Save CC as a respondent in an unfair dismissal dispute,
despite the fact that Temba Big Save CC had not been a party to the dispute
despite the fact that Temba Big Save CC had not been a party to the dispute
referred to conciliation. The LAC referred to Intervalve and framed the issue as
follows:
8 (2011) 32 ILJ 382 (LC).
9 (2015) 36 ILJ 363 (CC) at para 32.
10 (2016) 37 ILJ 2633 (LAC) at para 29.
12
‘Having said that a referral for conciliation is indispensable and a precondition
to Commissioner’s or the Labour Court’s jurisdiction over unfair dismissal
disputes means that if a party is not part of the conciliation proceedings it
cannot be joined at a later stage. The question that arises however is whether
the general principle is applicable in a case a where a dismissed employee,
having referred his/her employer to conciliation for an unfair dismissal dispute,
later discovers that his/her employer has changed because the business in
which they were employed has changed hands.’
[45] The LAC refer red to its earlier judgment in Intervalve (where reference had
been made to Mokoena, 11 a Labour Court judgment which permitted the
joinder of a party not cited at conciliation, where that party was jointly and
severally liable in terms of section 197(9) of the LRA), and held as follows:
‘This quote illustrates that, in the event of a party invoking the provision of
section 197 of the LRA, there is no need to refer the old and the new employer
to conciliation. Any one of the parties will suffice because in terms of the
section, the new employer takes the place of the old employer in all material
respects, including but not limited to contracts of employment and any
pending litigations. Hence, where the old employer was taken to conciliation
there is no need to also take the new employer because one is not dealing
with two employers but only one. Clearly, the appellant wrongly interpreted the
Intervalve judgments.
In this matter, the employees allege that the appellant has taken over the
business of the former employer and for that reason they sought to join the
appellant. Since the appellant is alleged to have stepped into the shoes of the
old employer it may be joined to the proceedings . I therefore agree with the
court a quo’s conclusion that in the context of an alleged s197 transfer, a
successful applicant would have to hold the transferee accountable because
successful applicant would have to hold the transferee accountable because
not only has that transferee an interest in the outcome of the dispute, it may
be held liable to satisfy the relief, if any, that is granted against the old
employer.’12
[46] The Applicant’s argument is that this matter is analogous to that in Temba Big
Save CC. It was submitted that a ‘new employer ’ in terms of section 197
(which may be held liable jointly and severally with the ‘old employer’ in terms
11 Mokoena and Others v Motor Component Industry (Pty) Ltd and Others (2005) 26 ILJ 277 (LC).
12 Id fn 10 at paras 31 and 32.
13
of section 197(9)) need not be cited at the conciliation stage, and is liable to
be joined as a respondent at Labour Court stage without having been cited as
a party to conciliation. Similarly, an employer which may be held jointly and
severally liable in terms of section 200B(2) of the LRA, need not be cited at the
conciliation stage, and is liable to be joined as a respondent at Labour Court
stage.
[47] The second judgment is Association of Mineworkers and Construction Union
and others v Prestprops 1315 CC (Prestprops),
13 which the Applicant
submitted is on all fours with this case. The Applicant referred to the following
dicta of the Court:
‘The applicants sought to rely on Themba Big Save (supra) and argued that as
they got to know after they had filed their statement of claim that Augusta was
their employer as envisaged in section 200 B of the LRA there was no need to
refer their dispute against Augusta to conciliation. It was argued on behalf of
Augasta that the need to refer the dispute could not be dispensed with. It was
further argued that the applicants’ reliance on Themba Big Save was
misplaced as in the matter at hand the business did not change hands.
I am not convinced that the decision in Themba Big Save (supra) can only be
relied on in cases where a business has changed hands. I am of the view that
it acknowledges that there are exceptions to the general rule laid down in
Intervalve (supra). The purpose of section 200B of the LRA is to protect the
right of employees when there is more than one employer who can be held
responsible for the violation their rights.’
[48] In Association of Mineworkers and Construction Union and Others v Buffalo Coal
Dundee (Pty) Ltd and Another
14 the court stated the purpose of section 200B as
follows:
‘Section 200B was enacted to prevent collusion by two or more persons
involved in an associated or related business by or through an employer in
order to undermine the provisions of the Act or any employment law.’
order to undermine the provisions of the Act or any employment law.’
[49] The argument on behalf of Augusta of the absence of collusion does not exclude
Augusta from being an employer as envisaged in section 200B. Augusta pleaded to
13 Unreported judgment under case no: JS 809/16 delivered on 29 March 2018 at paras 6 and 7.
14 (2016) 37 ILJ 2035 (LAC) at para 26.
14
the applicant’s statement of claim and explained its role in the relationship between
the applicants’ and the respondents as that of an employer within the meaning of
section 200B. The applicants could not reasonably have known that the second
respondent owned Augusta and that since 2014 the second respondent was
incorporated into Augusta. The respondent also pleaded that the second respondent
ought to have been Augusta.
[50] The applicants got to know after they had filed their statement of claim that Augusta
should have been the second respondent and given the nature of the relationship
between the respondents and Augusta, the applicants were not required to refer their
unfair dismissal dispute against Augusta to conciliation before this application for
joinder was launched.
[51] The Applicant submitted that this construction accords with the underlying
purpose of section 200B of the LRA, which is to avoid the purposes of labour
legislation being defeated through the use of complex corporate structures.
[52] The 33 individuals had no insight into the compl ex inner workings of the
respondents’ corporate structure and could not have known these details ,
which were only uncovered when their attorneys investigated the issue as a
result of Just Coal’s response to the statement of claim.
[53] In my view the authorities referred to supra do not assist the Applicant.
[54] In Temba Big Save CC, it was reiterated that a referral for conciliation is
indispensable and a precondition to a commissioner’s or the Labour Court’s
jurisdiction over unfair dismissal disputes, which means that if a party is not
part of the conciliation proceedings it cannot be joined at a later stage.
15
[55] Temba Big Save CC specifically addressed a matter in which the provisions of
section 197 of the LRA were invoked. The LAC confirmed that there was no
need to refer the old and new employers to conciliation, as either party would
need to refer the old and new employers to conciliation, as either party would
suffice, since the new employer takes the place of the old. In effect, one is not
dealing with two employers, but only one.
[56] The effect of s ection 197 is that the old employer is substituted by the new
employer from the outset, and this happens by operation of law.
15 At para 29; See also Id fn 9 at paras 40 and 108.
15
[57] In casu the Applicant’s case is not premised on the provisions of section 197
of the LRA, nor is there any allegation that a transfer of business took place
and that the provisions of section 197 were triggered. Temba Big Save CC is
certainly not an authority permitting joinder on the facts before this Court.
[58] In Prestprops the applicant applied for joinder and also placed reliance on
section 200 B of the LRA. The Court held that:
‘I am not convinced that the decision in Themba Big Save (supra) can only be
relied on in cases where a business has changed hands. I am of the view that
it acknowledges that there are exceptions to the general rule laid down
in Intervalve (supra). The purpose of section 200B of the LRA is to protect the
right of employees when there is more than one employer who can be held
responsible for the violation their rights.’16
[59] Augusta was joined to the proceedings after the Court found that t he
applicants could not reasonably have known that the second respondent
owned Augusta and that since 2014 the second respondent was incorporated
into Augusta. The respondent also pleaded that the second respondent ought
to have been Augusta. The applicants learned after they had filed their
statement of claim that August should have been the second respondent, and,
given the nature of the relationship between the respondents and Augusta, the
Court held that the applicants were not required to refer their unfair dismissal
dispute against Augusta to conciliation before the application for joinder was
launched.
[60] Prestprops too does not assist the Applicant in casu. It is evident that the
facts are distinguishable from the facts before this Court. In casu, Burbank
was not incorporated into Just Coal; there is no pleaded case by any
respondent to the effect that Burbank ought to have been a respondent; and
there is no relationship between Just Coal and Burbank which renders a
referral for conciliation in respect of Burbank unnecessary.
referral for conciliation in respect of Burbank unnecessary.
[61] I do not understand Prestprops to constitute blanket permission to join parties
as employers where there was no conciliation, save for when a section 197
transfer took place or where a party is regarded as an employer on the
16 Id fn 12 at para 7.
16
grounds envisaged in section 200B of the LRA. To the extent that Prestprops
purports to allow joinder without conciliation outside the limited scope referred
to, I cannot agree with it, and I am not inclined to follow it.
[62] In the statement of case, filed in September 2028, the Applicant pleaded that
33 notices of non- renewal of contract were issued, in which it was stated that
the employees were informed by Burbank that the contracts of employment
they had signed with Burbank, would come to an end on 31 March 2018. It
cannot be that this would not have raised awareness, or at least suspicion,
that Burbank might have been the employer of the 33 individuals. It was stated
clearly that the reason for the dismissal of the 33 individuals was different from
the 98 other employees, who were dismissed for strike-related conduct.
[63] The statement of response indeed prompt ed AMCU to refer an unfair
dismissal dispute to the CCMA , with an application for condonation, against
Burbank. Unfortunately for the 33 individuals , the referral was withdrawn and
the dispute was never conciliated.
[64] In my view, this is fatal to this application for joinder. I have to emphasise that
this Court has no discretion to condone non- compliance with the statutory
conciliation requirement.
[65] In Dawn Limited and 2 Others v P Molefe and Others ,
17 the Court had
occasion to deal with the principles relating to joinder, also confirming that
separate corporate personae must be respected. It was confirmed that:
‘Because of this jurisdictional pre- requisite as articulated in Intervalve, it is
simply not competent to join further parties to the CCMA proceedings after the
referral to conciliation, where the referral has also not been directly and
actually made against those parties as well. In short, the pre -requisite of a
prior referral in terms of section 191(1) against an actual and individual
employer, which referral is also served directly on that employer, cannot be
employer, which referral is also served directly on that employer, cannot be
circumvented by a subsequent joinder.’
[66] This is a matter in which AMCU should have referred a dispute against
Burbank for conciliation, but failed to pursue such referral, and the statutory
requirement of conciliation cannot be circumvented by a subsequent joinder
17 Unreported judgment under case no: JR2114/202 delivered on 4 March 2024 at para 45.
17
application. This is to use the joinder process for a purpose it was not intended
for.
[67] The last main difficulty is that in the joinder application the Applicant stated
that the dismissal of the 33 individuals was unfair inter alia for reasons related
to sections 186(1) and 198B(5) of the LRA.
[68] The Applicant’s statement that the dismissal of the 33 individuals was unfair
for reasons related to section 186(1) of the LRA is problematic. Section 186(1)
of the LRA does no more than provide a definition of the meaning of dismissal.
It does not confer any rights or protection on employees. Section 186(1)(b)
extends the definition of dismissal to include the non- renewal of a fixed- term
contract or the non- retention of an employee when there was a reasonable
expectation that the employer would do so. The application of section
186(1)(b) means no more than that an employee whose contract has not been
renewed may assert the existence of a dismissal where he or she reasonably
harboured an expectation of renewal or indefinite employment.
[69] To the extent that the 33 individuals contend that their dismissals were unfair,
this Court is empowered to adjudicate unfair dismissal claims only in those
circumstances contemplated by section 191(5)(b), and then only after the
dispute has been referred to the relevant statutory body for conciliation.
[70] Any dispute under section 198B must be referred to the CCMA or a bargaining
council for conciliation, and, if it is not resolved, to arbitration. This is clear
from the provisions of section 198D. It is not a dispute this Court has
jurisdiction to adjudicate.
[71] Burbank’s case is that it was indeed the employer of the 33 individuals and
that their fixed- term contracts ended by effluxion of time. The existence of
dismissal is in dispute, the nature of the disputes alluded to fall outside of the
Court’s jurisdiction, and Burbank has no interest in proceedings concerning
Court’s jurisdiction, and Burbank has no interest in proceedings concerning
the dismissal of employees for reasons related to unprotected strike action.
[72] Considering all the aforesaid, the Applicant failed to make out a case for
joinder.
[73] In the premises I make the following order:
18
Order
1. The application for joinder is dismissed;
2. There is no order as to costs
_______________________
Connie Prinsloo
Judge of the Labour Court of South Africa
Appearances:
For The Applicant: Advocate S Saunders
Instructed by: Larry Dave Inc Attorneys
For the Second Respondent: Advocate W Bekker SC
Instructed by: Ranamane Attorneys