Nkosi v Prestige Pressing and Components (PTY) Ltd (JS466/20) [2022] ZALCJHB 224 (18 August 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JS466/20

In the matter between:

JOHANNES SIGUMO

NKOSI

Applicant

And

PRESTIGE PRESSING AND COMPONENTS (PTY) LTD

Respondent

Heard: 4 April 2022

Delivered: 18 August 2022

(This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date and time for hand-down is deemed to be 18 August 2022)

Summary: Section 189A retrenchment – retrenchment agreement constitutes a collective agreement as defined in section 213 of the LRA and thus was binding on the applicant in terms of section 23(1)(b) of the LRA.

JUDGMENT

NKUTHA-NKONTWANA, J

[1] The applicant instituted this action on 12 August 2020 wherein he impugns the fairness of his retrenchment. It is common cause that the applicant was retrenched on 29 May 2020 consequent to a section 189A of the Labour Relations Act[1] (LRA) process.

[2] At the commencement of the trial on 12 April 2022, Mr Vuyo Kraal (Mr Kraal), appearing on behalf of the respondent, raised a point in limine to the effect that the applicant was a member in good standing and duly represented by the Aviation Union of Southern Africa (AUSA) during the section 189A consultation. Accordingly, he is bound by the retrenchment agreement.

[3] Ms Ntokozo Zulu (Ms Zulu), from the applicant’s attorneys of record, conceded that the applicant was indeed a member of AUSA. She, however, sought indulgence to file the notes that had been taken by

the shop stewards during the consultation process and time to file written submissions to address the respondent’s point in limine.

[4] The parties were directed to file their written submissions by 6 May 2022. The respondent duly complied and filed its written submissions on 4 May 2022. However, to date, the applicant is yet to file his

written submissions, notwithstanding numerous reminders by this Court’s Registrar, Ms Tsundzukani Malungani (Ms Malungani). I, therefore, decided to proceed and attend to this judgment without the applicant’s written submissions.

[5] There is no controversy on the pertinent facts for the determination of the point in limine. The applicant was a member of UASA, one of the recognised trade unions that represented the majority of the employees in the employ of the respondent during the section 189A consultation. In fact, it would seem that it was UASA that had requested a facilitation under the auspices of the Commission for Conciliation, Mediation and Arbitration (CCMA) in terms of section 189A(3)(b) of the LRA, which was duly granted. The three consultation sessions were held over a period of three months, between 5 February 2020 and 29 May 2022, and were facilitated by the CCMA commissioner. The consultation process calumniated into a retrenchment agreement which was concluded on 4 June 2020.

[6] The respondent contends that the applicant is bound by the retrenchment agreement in terms of which all the issues in dispute in this matter had been amicably resolved. I agree. The retrenchment agreement constitutes a collective agreement as defined in section 213 of the LRA and thus was binding on the applicant in terms of section 23(1)(b) of the LRA.[2]

[7] Thus, it is inconceivable that a party that is bound by a collective agreement may unilaterally opt out of its consequences without first attacking the validity thereof and have it set aside. Nonetheless, the applicant may a have claim if he is not satisfied with the retrenchment agreement; but that fight ought to be directed at AUSA,

his trade union, and not the respondent.

[8] In the circumstances, this Court has no jurisdiction to deal with this matter as all the issues in dispute had been disposed of in terms of the collective agreement that is binding on the parties.[3]

[9] Lastly, when it comes to costs, I am not prepared to saddle the applicant with costs as it would offend the requirements of law and fairness.

[10] In the circumstances, I make the following order:

Order

1. The applicant’s claim is dismissed.

2. There is no order as to costs.

P. Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

Applicants:

N Zulu from Ismail & Dahya Attorneys

Respondent: V Kraal from the respondent.

[1] Act 66 of 1995, as amended.

[2] Section 23(1)(b) of the LRA provides that a collective agreement binds each party to the collective agreement and the members of every other party to it, in so far as the provisions are applicable between them.

[3] See: Mampane N.O and Others v National Union of Public Service and Allied Workers and another (2020) 41 ILJ 363 (LAC) at para [37].