Association of Mineworkers and Construction Union and Others v Tshipi E Entle Manganese Mining (Pty) Ltd (JS542/16) [2016] ZALCJHB 375 (20 September 2016)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case no: JS542/16

In the matter between

ASSOCIATION OF MINEWORKERS AND

CONSTRUCTION UNION

Applicant

AMCU MEMBERS AS PER ANNEXURE

‘PDM3’

Second to Further Applicants

and

TSHIPI E NTLE MANGANESE MINING (PTY) LTD

Respondent

Heard: 02 September 2016

Delivered: 20 September 2016

JUDGMENT

TLHOTLHALEMAJE, J.

Introduction:

[1] The Respondent raised a special plea in its statement of response to the Applicants’ claim, contending that this Court lacks jurisdiction to adjudicate an alleged unfair dismissal dispute on the basis that the Applicants allegedly failed to serve it with a referral of the dispute for conciliation, and secondly that the conciliation hearing did not take place.

[2] The First Applicant (AMCU) had filed a statement of claim pursuant to the dismissal the Second to Further Applicants (The Employees) on account of the Respondent’s operational requirements. The statement of claim called upon this Court to determine whether the dismissal of the Employees was substantively unfair. That statement of claim was timeously filed, and the Respondent has also filed its statement of response.

[3] In its statement of response, the Respondent raised a point in limine, as indicated above. The issue therefore is whether there was compliance with provisions of section 191(3) of the LRA by means of a proper service of the referral form on the Respondent. This provision is to be read together with Rules 5 and 6 of the Commission for Conciliation Mediation and Arbitration (“CCMA”) Rules. Aligned to that question is whether the non-service of the referral form was so material as result in this court lacking jurisdiction to adjudicate the unfair dismissal dispute before it.

Background:

[4] The brief background to the preliminary point is as follows;

4.1 The Employees were dismissed for operational requirements on different dates between 04 to 08 February 2016. Pursuant to their

dismissal, they had then on 23 February 2016 approached this court on an urgent basis under case number J332/16 in terms of section 189A (13) (c) of the LRA, to challenge the procedural fairness of the dismissal. They sought reinstatement until such time as the

Respondent had complied with a fair procedure

4.2 On 29 February 2016 the Applicants referred an alleged unfair dismissal dispute to the CCMA. The claim mainly pertained to the

substantive fairness of the dismissal.

4.3 The urgent application came before Prinsloo J on 01 March 2016, and as per her judgment on 18 March 2016, she ordered as follows;

“[44] in the premises, I make the following order:

44.1 The application in terms of section 189A (13) is referred to the trial roll in terms of Rule 7(7) for hearing of oral evidence in relation to the procedural fairness of the Second and Further Applicant’s dismissal in respect of whether the parties engaged in proper and meaningful consultation on means to avoid retrenchment and selection criteria;

44.2 The Registrar is directed to enrol the application in terms of section 189A (13) for hearing simultaneously with any action that the Applicants may institute in relation to the substantive fairness of their termination of employment. Should the applicant not institute action in this Court in relation to the substantive fairness of their dismissal, they may enrol the application in terms of section 189A (13) on the trial roll as contemplated by paragraph 44.1 supra;

44.3The costs of this application are reserved.

4.5 The dispute referred to CCMA was conciliated on 06 April 2016 in the absence of the

Respondent, and a certificate of non-resolution was issued. On 05 July 2016 the Applicants referred a dispute to this Court by way of statement of claim. The Respondent filed their statement of response on 01 August 2016, wherein they raised the preliminary point.

The submissions:

[5] The Respondent contends that it was not properly served with a referral of the dispute for conciliation, and to that end, there was no proper and/or meaningful conciliation of the dispute, resulting in this court lacking jurisdiction to adjudicate the matter. The main issue in this regards pertains to whether Applicants had utilised a correct fax number in dispatching the referral form to the Respondent, it being the latter’s contention that despite the Applicant’s attorneys of record having been properly advised of which fax number to use for future correspondence, the former nonetheless elected to utilise an incorrect one.

[6] There are several affidavits in the pleadings deposed to on behalf of the parties in regards to the issue of service of the referral form, and whether the correct fax number was utilised or not. Ms Natasha Chengaparon behalf of the Respondent avers that the fax number that the referral form was dispatched to, is not, the fax number that is used by the Respondent. Mr Teboho Mokoena a candidate attorney on behalf of the Applicant’s attorneys of record on the other hand avers that he had served the referral form at fax number 086 240 4925, which he had obtained from the Respondent’s webpage. He further averred that the document was successfully transmitted as evident from the fax transmission report. Mokoena contended that at all times he held the belief that the fax number he had utilised was the correct one, and that the referral form was properly served.

The legal framework and evaluation:

[7] The pertinent provisions for the purposes of adjudication of an alleged unfair dismissal dispute arising from an employers’ operational requirements are those found in section 191 (1) (a), (b); (3); (4) and (5) (b) (ii) of the LRA. Thus a dispute must have been referred to the relevant bargaining council or the CCMA within the prescribed thirty days; that referral must have been served on the respondent party; the Council or the CCMA must have attempted to resolve the dispute through conciliation, and thereafter issued a certificate of non-resolution as contemplated in section 135 of the LRA.

[8] The Respondent’s contention is that its special plea is not merely a technical or formalistic complaint of non-compliance, but that it relates to a fundamental and substantive aspect. I nevertheless disagree with the Respondent’s contentions, and indeed hold the view that the special plea is overly technical, formalistic, and worst still, spurious. My reasons for this conclusion are as follows;

[9] Section 191 (3) of the LRA provides that the employee must satisfy the council or the Commission that a copy of the referral has been served on the employer. These provisions are to be read together with Rules 5 (1) (c) of the CCMA Rules which allows a party to serve a document by e-mail, fax, telefax chosen by the other party to receive service. In addition, Rule 6 (1) (c) provides inter alia that proof of service must be provided by means of a copy of the telefax transmission report indicating the successful transmission to the other party of the whole document.

[10] In this case, the dispute before the CCMA was lodged on time. In order to prove service of the referral form, the Applicant’s attorneys of record as can be gleaned from Nicole Purwitsky’s affidavit, went to the extent of engaging the services of tracing agents who had established that the fax number utilised to serve the referral form indeed belonged to the Respondent. The fax transmission report is available to indicate that there was indeed a successful transmission of the referral form. In these circumstances, to require more of the Applicants in order to establish that the referral was sent to the correct fax number is to place an onerous burden on it. This is even moreso when the question is asked as to what possible prejudice the Respondent could have suffered as a consequence of not attending the conciliation hearing pertaining to an alleged unfair dismissal dispute.

[11] The above question is more apposite within the context of a referral of alleged unfair dismissal disputes. The provisions of section 191(3) and (4) of the LRA requires the Council or the CCMA to attempt to resolve the dispute through conciliation, and where such conciliation fails, or if 30 days or any further period as agreed between the parties have expired since the council or the Commission received the referral, to issue a certificate of outcome.

[12] It was common cause that the Respondent was not present at the conciliation proceedings held on 6 April 2016. Nevertheless, a certificate of outcome was issued, enabling the Applicant to refer the dispute for adjudication. The Respondent contends that it was denied the benefit and opportunity of the conciliation process. It further relied on EOH Abantu (Pty) Ltd v CCMA and Others[1]; the provisions of section 157 (4) a) of the LRA, and the Constitutional Court decision in NUMSA v Intervalve (Pty) Ltd and others[2] for the proposition that attempts must have been made to conciliate disputes before resorting to other methods of dispute resolution.

[13] There can be no quarrel with the proposition that conciliation is indispensable and a precondition to Commissioner’s or the Labour Court’s jurisdiction over unfair dismissal disputes[3]. There have been debates in regards to whether prior to a certificate of outcome being issued, there must be an actual conciliation process to attempt to resolve the dispute. Within the context of mutual interest and strike disputes however, it makes sense to insist on the parties having an actual conciliation process as was stated in Transport and Allied Workers Union of South Africa v PUTCO Limited[4]. This is due to the concomitant consequences of industrial action to both the employer, the employees and general public as we have come to know them. An insistence on actual conciliation, and where successful, can go a long way in preventing industrial action.

[14] In the context of ordinary unfair dismissal disputes however, to insist on an actual conciliation process prior to a certificate of outcome being issued or a matter being arbitrated or adjudicated might seems to be easier said than done. There are practical and legal considerations to be taken into account on insisting on conciliations within the context of unfair dismissal disputes.

[15] The first is that one of the primary objectives of the LRA is speedy resolution of labour disputes. A more practical, convenient and cost effective means towards achieving that objective is for the parties to the dispute to subject themselves to a conciliation or mediation process with the assistance of trained conciliators or mediators as contemplated in sections 135 and 191(4) and (5) of the LRA. Under subsection (4), it is provided that the Bargaining Council or the Commission must attempt to resolve the dispute through conciliation[5].

[16] The difficulty however with a literal interpretation of subsection (4) is that it fails to take into account that a process of conciliation or mediation by its very nature is voluntary albeit statutorily regulated. Subsequent to dismissals, it is not uncommon for parties after a referral of a dispute not to want anything to do with each other except at the level of arbitration or adjudication. Even though the provisions of the LRA envisage that a conciliation must be held, it is doubted whether the parties can be compelled to subject themselves to a meaningful conciliation process, especially if one of them shows no interest, bearing in mind that disputes cannot be dismissed at the level of conciliation[6], nor can matters be finally determined at conciliation unless they were set-down as con/arb, and no objection to that process was

lodged.

[17] Thus it is not uncommon for employers to fail to attend conciliation proceedings in the light of the above factors. To therefore insist on an actual conciliation process under those circumstances is indeed a big ask. Worst still, it would not lead to the expeditious resolution of disputes where dispute cannot move any further simply due to the reason that a conciliation had not been held. In fact, this would play in the hands of parties who might be inclined to frustrate the process.

[18] A further consideration is that a reading of the provisions of sections 135 (5) and 191 (5) (b) (ii) of the LRA enjoins a conciliator to issue a certificate of outcome when conciliation has failed or when the 30-day period has expired. These provisions in my view cannot be in sync with the approach that the Act insists on an actual conciliation process, as a certificate of outcome in the light of these provisions can be issued upon the happening of an event other than actual conciliation.

[19] The Labour Appeal Court in South African Municipal Workers Union obo Manentza v Ngwathe Local Municipality and Others[7] makes the point even more clearer when it that;

Thus, unlike under s136 of the LRA, the issue of a certificate of non-resolution does not found the right of referral to arbitration or adjudication under s191(5) of the LRA, as the subsection confers this right upon the lapsing of the 30- day period contemplated in the subsection regardless of whether conciliation actually takes place or a certificate of non-resolution is issued by the CCMA or the bargaining council concerned. It follows that neither the holding of an actual conciliation nor the issue of a certificate of non-resolution by the CCMA or the bargaining council concerned, is a prerequisite for purposes of referring an unfair dismissal or unfair labour practice dispute to arbitration or adjudication in terms of s191(5)(a) and (b) of the LRA, where there has been a lapse of 30 days from the date on which the CCMA or bargaining council received the referral and the dispute remains unresolved.’

[20] It therefore follows that the reliance by the Respondent in this case on NUMSA v Intervalve (Pty) Ltd and others is wholly misplaced in that the facts of those case are substantially different to those in casu. The issue in that case pertained to whether there was actual service of the referral dispute on one of the alleged employer parties. The issue however in this case is whether there was substantial compliance with the provisions of section 191 (3) read together with those of Rules 5 and 6 of the CCMA Rules. As compared to Intervalve where there was no service of the referral at all on the one party, it is my view that in this case, there was substantial compliance.

[21] The Respondent’s other complaint was that it was denied of an opportunity to having a trained conciliator to conciliate the dispute between the parties. Once cannot help but be sceptical of this contention. The parties went through four rounds of facilitations under the auspices of the CCMA and three further consultations on their own prior to the retrenchments. I have utmost faith and confidence in the ability of the CCMA to resolve disputes through the assistance of their conciliators. However, any meaningful

conciliation and successful resolution of disputes is dependent on the willingness of the parties to find such resolution.

[22] If indeed the Respondent was serious about finding a resolution to the ongoing dispute between the parties, nothing prevented it from so suggesting to the Applicants, even after the retrenchments had taken place. At no stage after the retrenchment, inclusive of the launching of the two matters before the court did the Respondent ever suggest to the Applicants that it was amenable to resolving the dispute. The fact that the Respondent raises these spurious preliminary points raises even more doubts about its seriousness to commit to any meaningful conciliatory process, especially since it seeks that the main claim be dismissed if the preliminary points are upheld. The complaint therefore that the Respondent was denied an opportunity of a conciliation is mere red herring.

[23] To conclude then, I am satisfied that the Applicants have sufficiently complied with the provisions of section 191 (3) of the LRA read together with Rules 5 and 6 of the CCMA Rules. The fact that the Respondent did not allegedly receive the referral form does not imply that it was not served by the Applicant.

[24] With the requirements of the provisions of section 191 having been met, including those of subsection (11) (a), the Applicants’ statement of claim is properly before the court. The fact that a conciliation hearing was not held does not deprive this court of jurisdiction to adjudicate the dispute before it.

[25] In regards to the issue of costs, the court may make such an award upon a consideration of the requirements of law and fairness. The preliminary points raised on behalf of the Respondent were spurious and had caused the Applicant to defend this matter in circumstances which were not necessary. I see no reason in law and fairness why the Applicants should not be entitled to their costs.

Order:

i. The preliminary points raised by the Respondent in its statement of response are dismissed with costs.

ii. To the extent that the statement of defence has been filed, the parties are directed to convene a pre-trial conference within 30 days from the date of this judgment, and to file a signed minute in that regard.

_________________

Tlhotlhalemaje J

Judge of the Labour Court of South Africa

Appearances:

For the Applicants: Adv. S Collet

Instructed by:

Larry Dave Incorporated Attorneys

For the Respondent: Adv. Riaz Itzkin

Instructed by:

Edward Nathan Sonnenberg INC

[1] [2010] 2 BLLR 172 (LC) at para 17 where it was held that; ‘The process of conciliation involves a meaningful attempt by the parties to reach consensus on the dispute between them with the assistance of a trained conciliator. In the conciliation process, the parties try to find a solution to the dispute among themselves’

[1] [2010] 2 BLLR 172 (LC) at para 17 where it was held that;

‘The process of conciliation involves a meaningful attempt by the parties to reach consensus on the dispute between them with the assistance of a trained conciliator. In the conciliation process, the parties try to find a solution to the dispute among themselves’

[2] [2015] 3 BLLR 2015 (CC) at para [34]

[3] Intervalve at para [40]

[4] (2016) 37 ILJ 1091 (CC) at para [45], where it was held that; “The dictates of section 64(1)(a) are clear. No industrial action can be undertaken until there has been an attempt at conciliation.

This provision also makes pertinent that an “issue in dispute” arises prior to a matter being referred for conciliation. Only once a dispute has arisen can it be referred to a bargaining council for conciliation. Moreover, industrial action can only be taken in the event that an attempt at conciliation fails, either because a certificate by the bargaining council states that the issue in dispute remains unresolved, or because a period of 30 days, or any extension of that period agreed to between the parties to the dispute, has elapsed since the referral was received by the bargaining council. Referral to conciliation is not merely a perfunctory procedural step that has to be complied with in order to obtain a licence to lock out or to embark on a strike. The object of section 64(1)(a) is to bring together the parties at the negotiations, and encourage them to seek solutions to issues of mutual concern, thereby reinforcing a collective bargaining culture”.

[4] (2016) 37 ILJ 1091 (CC) at para [45], where it was held that;

“The dictates of section 64(1)(a) are clear. No industrial action can be undertaken until there has been an attempt at conciliation.

This provision also makes pertinent that an “issue in dispute” arises prior to a matter being referred for conciliation. Only once a dispute has arisen can it be referred to a bargaining council for conciliation. Moreover, industrial action can only be taken in the event that an attempt at conciliation fails, either because a certificate by the bargaining council states that the issue in dispute remains unresolved, or because a period of 30 days, or any extension of that period agreed to between the parties to the dispute, has elapsed since the referral was received by the bargaining council. Referral to conciliation is not merely a perfunctory procedural step that has to be complied with in order to obtain a licence to lock out or to embark on a strike. The object of section 64(1)(a) is to bring together the parties at the negotiations, and encourage them to seek solutions to issues of mutual concern, thereby reinforcing a collective bargaining culture”.

[5] Read together with section 135 (1) and (2) of the LRA ‘When a dispute has been referred to the Commission, the Commission must appoint a commissioner to attempt to resolve the dispute through conciliation.’

[5] Read together with section 135 (1) and (2) of the LRA

‘When a dispute has been referred to the Commission, the Commission must appoint a commissioner to attempt to resolve the dispute through conciliation.’

[6] Gauteng and Another v Ramabulana NO and Others [2008] 4 BLLR 299 (LAC).

[7] [2015] 9 BLLR 894 (LAC) at para [39]