FAWU and Others v Clover SA Ltd (D1321/99) [2000] ZALC 93 (11 September 2000)
- Citation
- [2000] ZALC 93
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Labour Court
- Panel
- Pillay
- Case number
- D1321/99
More details
- Court
- Labour Court
- Panel
- Pillay
- Case number
- D1321/99
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that although the second respondent relied on the Rustenburg Platinum Mines decision, which required employee signatures on the referral form, he was not made aware of the Moolman Brothers case, which clarified that a trade union may refer a dispute on behalf of its members. The omission of this authority did not constitute a reviewable irregularity, as the decision was made on the information properly before the arbitrator. The resulting inequity, namely the applicants being barred from pursuing their dispute, was not sufficient grounds for the court to set aside the ruling. The application for review was therefore dismissed.
Court disposition
Application dismissed with no order as to costs.
Orders
- The application for review is dismissed.
- There is no order as to costs.
02
Material facts
Parties
FAWU & Others
Applicant Counsel: Mr N. NkomoClover SA Ltd
Respondent Counsel: Mr N F Kocks03
Procedural history
Posture
Review Application / Judgment
04
Questions and positions
Legal issues
- 01
Whether the referral of a dispute to the CCMA requires the signatures of the employees on the referral form.
- 02
Whether a trade union may refer a dispute on behalf of its members under section 191 of the LRA.
- 03
Whether the failure to consider relevant case law renders the arbitration award reviewable.
Party arguments
- Applicant
- The applicants argued that the referral to the CCMA should not be invalidated solely due to the absence of employee signatures, as a trade union is entitled to refer disputes on behalf of its members. They contended that the approach adopted by the second respondent was overly technical and inconsistent with the Labour Relations Act, which contemplates representation by trade unions.
- Respondent
- The respondent relied on the Rustenburg Platinum Mines Ltd v CCMA & Others decision, asserting that section 191(1) of the LRA requires the signatures of the employees on the referral form. They maintained that only employees themselves may refer disputes, and the absence of signatures rendered the referral defective.
05
Court’s reasoning
Legal principles
- 01
Moolman Brothers and Gaylard N.O. & Others 1998 (19) ILJ 150 (LC)
Section 191 of the Labour Relations Act contemplates that a party other than the employee, such as a trade union, may refer a dispute on behalf of its members.
- 02
Labour Relations Act; Rustenburg Platinum Mines Ltd v CCMA & Others 1998 (19) ILJ 327 (LC)
A failure to consider relevant case law does not necessarily render an arbitration award reviewable unless it results in a gross irregularity or inequitable outcome.
06
Ratio, limits and disposition
Ratio decidendi
The court held that although the second respondent relied on the Rustenburg Platinum Mines decision, which required employee signatures on the referral form, he was not made aware of the Moolman Brothers case, which clarified that a trade union may refer a dispute on behalf of its members. The omission of this authority did not constitute a reviewable irregularity, as the decision was made on the information properly before the arbitrator. The resulting inequity, namely the applicants being barred from pursuing their dispute, was not sufficient grounds for the court to set aside the ruling. The application for review was therefore dismissed.
Obiter and limits
- The court noted that arbitrators should alert parties to relevant case law where possible, but failure to do so does not automatically render an award reviewable.
- The approach requiring only employees to refer disputes is overly technical and does not accord with the broader purpose of the Labour Relations Act.
Court disposition
Application dismissed with no order as to costs.
- The application for review is dismissed.
- There is no order as to costs.
Source and reliance status
Labour Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Labour Court
Judgment
D1321/99-PR/3 4 JUDGMENT
IN
THE LABOUR COURT OF SOUTH AFRICA
SITTING
IN DURBAN
CASE NO D1321/99
DATE 11 September 2000
In the matter between:
F A W U & OTHERS Applicants
and
CLOVER SA LTD Respondent
JUDGMENT
DELIVERED BY
THE
HONOURABLE MS JUSTICE
PILLAY
TRANSCRIBER
SNELLER
RECORDINGS
JUDGMENT
PILLAY J
[1] This is a review of the decision of the second respondent made in limine in arbitration proceedings. It is not important for purposes of this case to distinguish whether the review is in terms of Section 145 or 158.
[2] The second respondent had ruled on the basis of the decision in Rustenburg Platinum Mines Ltd v CCMA & Others 1998 (19) ILJ 327 (LC) that the signatures of the employees were required on the referral form in terms of Section 191(1). In the Rustenburg Platinum decision at page 328, the Court had rejected the view that the LRA contemplated someone other than an employee, such as a trade union, could be the referring party.
[3] The employees omitted to bring to the attention of the second respondent the decision of Seady AJ in Moolman Brothers and Gaylard N.O. & Others 1998 (19) ILJ 150 (LC). That case dealt with whether Section 191(2) requires the employee party and not anyone else, even if it is a representative, to demonstrate good cause in an application for condonation. The Court disagreed with such a construction. At page 155 (D-F) it found the approach was: "overly technical and does not accord with the use of the word 'employee' in subsections 1, 3 and 5 of Section 191. It must be read to mean the party who refers a dispute because the Act clearly contemplated that someone other than an employee could be the referring party, for example, a trade union that brings the application on its own behalf and on behalf on its members." [4] The second respondent accordingly made a decision on the basis of the information properly before him. If the second respondent had been aware of the decision in the Moolman Brothers case, he should have alerted the parties to it. However, his failure to do so does not render the award reviewable. The fact that the ruling has generated an inequitable result in that the applicants are barred from pursuing their dispute through the CCMA, is not a sufficient basis on which the Court can set aside the ruling. [5] In the circumstances THE APPLICATION IS DISMISSED WITH NO ORDER AS TO COSTS.
PILLAY J Date of hearing: 11 September 2000 Date of judgment: 11 September 2000-10-19 For the applicants: Mr N. Nkomo from J. Surju Attorneys. For the respondents: Mr N F Kocks from Kocks Dreyer Attorneys
REVISED
AND REPORTABLE
[3] The employees omitted to bring to the attention of the second respondent the decision of Seady AJ in Moolman Brothers and Gaylard N.O. & Others 1998 (19) ILJ 150 (LC). That case dealt with whether Section 191(2) requires the employee party and not anyone else, even if it is a representative, to demonstrate good cause in an application for condonation. The Court disagreed with such a construction. At page 155 (D-F) it found the approach was:
"overly technical and does not accord with the use of the word 'employee' in subsections 1, 3 and 5 of Section 191. It must be read to mean the party who refers a dispute because the Act clearly contemplated that someone other than an employee could be the referring party, for example, a trade union that brings the application on its own behalf and on behalf on its members."
[4] The second respondent accordingly made a decision on the basis of the information properly before him. If the second respondent had been aware of the decision in the Moolman Brothers case, he should have alerted the parties to it. However, his failure to do so does not render the award reviewable. The fact that the ruling has generated an inequitable result in that the applicants are barred from pursuing their dispute through the CCMA, is not a sufficient basis on which the Court can set aside the ruling.
[5] In the circumstances THE APPLICATION IS DISMISSED WITH NO ORDER AS TO COSTS.
PILLAY J
Date of hearing: 11 September 2000
Date of judgment: 11 September 2000-10-19
For the applicants: Mr N. Nkomo from J. Surju Attorneys.
For the respondents: Mr N F Kocks from Kocks Dreyer Attorneys
REVISED
AND REPORTABLE
4
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