Mbatha and Others and Pioneer Foods (Pty) Ltd t/a Sasko (JS 31/21) [2023] ZALCJHB 181 (7 June 2023)

Mbatha and Others and Pioneer Foods (Pty) Ltd t/a Sasko (JS 31/21) [2023] ZALCJHB 181 (7 June 2023)

The applicants were dismissed for alleged participation in an unprotected strike and referred their dispute to the CCMA for conciliation, which was unsuccessful on 9 July 2020. The certificate of non-resolution was issued on that date. In terms of section 191(11)(a) of the LRA, the applicants were required to refer their dispute to the Labour Court within 90 days, i.e., by 8 October 2020. The referral was only made on 25 January 2021, well outside the prescribed period, and no condonation application was made. The Labour Court, following the Constitutional Court's decision in F&J Electrical CC v MEWUSA, has no jurisdiction to adjudicate the dispute in the absence of a condonation...

Citation
[2023] ZALCJHB 181
Parties
Applicant: Mthandeni Mbatha and Others; Respondent: Pioneer Foods (Pty) Ltd t/a Sasko
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
7 June 2023
Case Number
JS 31/21
Procedural Posture
Jurisdictional Point in Limine / Pre Trial Determination of Jurisdiction
Outcome
The respondent's jurisdictional point in limine is upheld. The matter is struck off the roll for lack of jurisdiction. No order as to costs.
Judges
M Jolwana
Legal Topics
Unfair Dismissal, Jurisdiction of Labour Court, Condonation, Unprotected Strike, Conciliation and Arbitration
Labour Law Civil Procedure Unfair Dismissal Jurisdiction of Labour Court Condonation Unprotected Strike Conciliation and Arbitration

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Parties

Mthandeni Mbatha and Others

Applicant

Pioneer Foods (Pty) Ltd t/a Sasko

Respondent

Procedural Posture

Jurisdictional Point in Limine / Pre Trial Determination of Jurisdiction

Legal Issues

  1. 1 Whether the Labour Court has jurisdiction to adjudicate the applicants' dismissal dispute in the absence of a condonation application for late referral.
  2. 2 Whether the referral to the Labour Court was made within the prescribed 90-day period after the certificate of non-resolution was issued.
  3. 3 Whether the applicants were required to apply for condonation for the late referral of their dispute.

Ratio Decidendi

The applicants were dismissed for alleged participation in an unprotected strike and referred their dispute to the CCMA for conciliation, which was unsuccessful on 9 July 2020. The certificate of non-resolution was issued on that date. In terms of section 191(11)(a) of the LRA, the applicants were required to refer their dispute to the Labour Court within 90 days, i.e., by 8 October 2020. The referral was only made on 25 January 2021, well outside the prescribed period, and no condonation application was made. The Labour Court, following the Constitutional Court's decision in F&J Electrical CC v MEWUSA, has no jurisdiction to adjudicate the dispute in the absence of a condonation...

Court Disposition

The respondent's jurisdictional point in limine is upheld. The matter is struck off the roll for lack of jurisdiction. No order as to costs.

Orders

  • The respondent's jurisdictional point in limine is upheld.
  • The matter is struck off the roll for lack of jurisdiction.