REPUBLIC OF SOUTH AFRICA IN THE LABOUR OF SOUTH AFRICA COURT, JOHANNESBURG JUDGMENT HLABISI MASEGARE AND OTHERS

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1 REPUBLIC OF SOUTH AFRICA IN THE LABOUR OF SOUTH AFRICA COURT, JOHANNESBURG JUDGMENT Not Reportable Case no: JS 293/2011 In the matter between - HLABISI MASEGARE AND OTHERS Applicants and ROBOR GALVANIZERS Respondent Heard: 22 February 2014 Delivered: 25 July 2014 Summary: Applicants claim unfair dismissal for allegedly participating in an unprotected strike action. Respondent raising three points in limine. The referral being late and there being no condonation application, the Court lacks jurisdiction. JUDGMENT MOLAHLEHI, J Introduction

2 2 [1] The applicants have filed the statement of case alleging that their dismissal by the respondent was both procedurally and substantively unfair. They state therein that they were charged and dismissed by the respondent for allegedly participating in an unprotected strike action. They dispute ever participating in the alleged strike action. It is for that reason that they are seeking an order declaring their dismissal to be unfair and that they be reinstated into the positions they occupied prior to their dismissal. [2] The respondent has opposed the statement of claim and has in that regard raised three points in limine which are the subject of consideration in these interlocutory proceedings. The first point raised by the respondent is that, this Court does not have jurisdiction to hear the matter because the statement of case was filed outside the 90 days period prescribed for by the Labour Relations Act 1 (the LRA). [3] The applicants, in particular, Mr Hlabisi Masegare, were dismissed for the following acts of misconduct: a. Absence from work without informing the respondent of the reasons for their absence; b. Dishonesty and unauthorised absence from workplace and; c. Negligence and improper performance of duties and dereliction of duties. [4] The applicants contend that their dismissal occurred on 8 September 2009 and thereafter the alleged unfair dismissal dispute was referred to the bargaining council and as the conciliation process was unsuccessful the certificate of non-resolution was issued on 9 October The matter was then referred to arbitration. The arbitration award 1 Act 66 of 1995

3 3 [5] The arbitrator in the arbitration award identified the issue for determination to be concerning an alleged unfair dismissal of the applicants. After analysing the facts before him the arbitrator made the following award: 6.1 The dismissal of Mr Masegare, Mr Malatsi and Mr Mosia was substantively and procedurally fair; 6.2 The dispute relating to the dismissal of Mr Masegare, Mr Hlengethwa and Mr Mosia based on the first counts against them be referred to the Labour Court for adjudication; and 6.2 The dispute relating to the dismissal of Mr Manaka on all the three charges must be referred to the Labour Court. The first point in limine [6] As indicated earlier, this point concerns the late referral of the statement of case and failure by the applicants to apply for condonation. The case of the applicants in their heads of argument seem to be that their statement of case cannot be said to be late because they were directed by the arbitrator to refer the matter to the Labour Court. [7] In terms of section 191 (1) of the LRA, 2 a dispute concerning an unfair dismissal has to be referred to the CCMA or the bargaining council, 2 Section 191(1) of the LRA deals with ddisputes about unfair dismissals and unfair labour practices and reads as follows: (1)(a) If there is a dispute about the fairness of a dismissal, or a dispute about an unfair labour practice, the dismissed employee or the employee alleging the unfair labour practice may refer the dispute in writing to - (i) a council, if the parties to the dispute fall within the registered scope of that council; or (ii) the Commission, if no council has jurisdiction. (b) A referral in terms of paragraph (a) must be made within - (i) 30 days of the date of a dismissal or, if it is a later date, within 30 days of the employer making a final decision to dismiss or uphold the dismissal; (ii) 90 days of the date of the act or omission which allegedly constitutes the unfair labour practice or, if it is a later date, within 90 days of the date on which the employee became aware of the act or occurrence.

4 4 (whichever is applicable) within 30 days of the date of dismissal for conciliation. In the present case it would appear that that requirement was complied with. [8] It is trite that disputes concerning misconduct, incapacity, constructive dismissal and or dismissal for unknown reasons fall within the jurisdiction of the CCMA or bargaining council in terms of section 191 (5) (a) (i) and (ii) of the LRA. [9] The disputes which may be referred to Court in terms of section 191 (5) (b) of the LRA, 3 are those concerning alleged automatic unfair dismissal, dismissal for operational reasons, participation in a strike action or an employee refusing to join a union which is a party to the close shop agreement. [10] In the present matter, it is common cause that the certificate of outcome confirming non- resolution and directing that the matter should be arbitrated was issued on 9 October In calculating the prescribed 90 days from that date, it means the statement of case is 496 days late. [11] The applicants have failed to apply for condonation for the late filing of their statement of case contending that their statement could not be late because they were directed by the arbitrator to refer the matter to this Court. In other words the case of the applicants is that the arbitrator had the power to impose jurisdiction to hear the matter on the Labour Court. This argument bears no merit because arbitrators do not have powers to impose jurisdiction on the Labour Court. The arbitrators or Commissioners do not have powers to abridge the time frame provided for in section 191 (5) of the LRA. 3 Section 191 (11)(a) of the LRA reads as follows: The referral, in terms of subsection (5) (b), of a dispute to the Labour Court for adjudication, must be made within 90 days after the council or (as the case may be) the commissioner has certified that the dispute remains unresolved. (b) However, the Labour Court may condone non-observance of that timeframe on good cause shown.

5 5 [12] Accordingly, in the absence of an application for condonation, and it being granted, the Court lacks jurisdiction to entertain the applicants claim. For this reason alone the respondent s first point in limine stands to succeed and the applicants claim should accordingly be dismissed. The second point in limine [13] The reason for the dismissal of Mr Hlabisi Masegare and Other is based on misconduct. They were dismissed for the following offences: a. absence from work without informing the respondent. b. neglect, improper performance of duties and dereliction of duties. [14] The applicants in their statement of case allege that they were charged for participating in an illegal strike. At paragraph 15 of the statement of case the applicants state: It is denied that the applicants were involved in a strike but all applicants were doing their duties as usual. [15] It is apparent even from the version of the applicants that the reason for their dismissal was not related to the strike action. In their heads of argument, the applicants without any substantiation claim that the Court has jurisdiction to entertain their claim. The contention that the Court has jurisdiction is not supported by any objective facts. The balance of probabilities favours the version of the respondent that the applicants were dismissed for misconduct and not for participating in an illegal strike. It then follows that it is the bargaining council that has jurisdiction and not the Labour Court to entertain the applicants claim of unfair dismissal. It is for this reason that the second point in limine of the respondent is upheld. The third point in limine [16] The essence of the respondent s third point in limine is that, the Court has no jurisdiction to entertain the dispute because the employment

6 6 relationship was terminated by the outcome of the arbitration award. The applicants contend that the Court should assume jurisdiction so as to afford them the opportunity to submit evidence which would show that their dismissal was unfair. [17] As indicated above, the arbitrator found the dismissal of the applicants to have been fair. The arbitration award has not been reviewed or rescinded. It is trite that a decision made by an arbitrator is final and binding until it is rescinded or set aside on review. Applying this principle, it means that until the applicants successfully rescind or review the arbitration award there is no employment relationship between the applicants and the respondent and thus depriving the Court of the necessary jurisdiction to entertain the applicants claim. The respondent s third point in limine is accordingly upheld. [18] It follows from the above discussion that the applicants claim of unfair dismissal stands to be dismissed mainly for lack of jurisdiction of the Court. As concerning the issue of costs, I do not believe that it would be fair to allow costs to follow the results. Order [19] In the premises, the following order is made: 1. All the three preliminary points raised by the respondent are upheld. 2. The Court lacks jurisdiction to entertain the applicant s claim. 3. The applicant s claim is accordingly dismissed with no order as to costs. E Molahlehi Judge of the Labour Court Johannesburg

7 7 APPEARANCES: For the Applicants: In person For the Respondent: Geldenhuys Attorneys