PTAWU obo Mamorobela v Fidelity Security Services (Pty) Ltd (JS 159/19) [2023] ZALCJHB 75 (22 March 2023)
The Labour Court lacks jurisdiction to adjudicate the dispute because the applicant failed to refer the dispute for conciliation against Fidelity Security Services (Pty) Ltd, the actual employer. The Labour Relations Act requires that the referral for conciliation must be served on the employer party. In this case,...
Source-derived case information.
- Citation
- [2023] ZALCJHB 75
- Parties
- Applicant: PTAWU obo Josias H Mamorobela; Respondent: Fidelity Security Services (Pty) Ltd
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JS 159/19
- Procedural Posture
- Special Plea / Jurisdictional Challenge Before Trial
- Outcome
- Special plea of lack of jurisdiction upheld; referral dismissed for want of jurisdiction.
- Judges
- GN Moshoana
- Legal Topics
- Jurisdiction of Labour Court, Conciliation Requirement, Automatically Unfair Dismissal
Source-derived case record
Summary, issues, holding and outcome
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Parties
PTAWU obo Josias H Mamorobela
Applicant
Fidelity Security Services (Pty) Ltd
Respondent
Procedural Posture
Special Plea / Jurisdictional Challenge Before Trial
Legal Issues
- 1 Whether the Labour Court has jurisdiction to adjudicate the dispute where the applicant failed to refer the dispute to conciliation against the correct employer.
- 2 Whether the referral for conciliation was properly served on the respondent as required by the Labour Relations Act.
Ratio Decidendi
The Labour Court lacks jurisdiction to adjudicate the dispute because the applicant failed to refer the dispute for conciliation against Fidelity Security Services (Pty) Ltd, the actual employer. The Labour Relations Act requires that the referral for conciliation must be served on the employer party. In this case, conciliation was attempted with ADT, a different entity, and not Fidelity. The absence of a proper referral and conciliation process is a fatal procedural defect, and the special plea of lack of jurisdiction is upheld.
Court Disposition
Special plea of lack of jurisdiction upheld; referral dismissed for want of jurisdiction.
Orders
- The special plea of lack of jurisdiction is upheld.
- The referral is dismissed for want of jurisdiction.
Full Case Text
Judgment text and source record
38 paragraphs
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JS 159/19
In the matter between:
PTAWU obo JOSIAS H MAMOROBELA
Applicant
and
FIDELITY SECURITY SERVICES (PTY) LTD
Respondent
Heard: 17 March 2023
Delivered: 22 March 2023
Summary: Special Plea – lack of jurisdiction. Failure to refer a dispute to conciliation. Held: (1) The special plea is upheld and the
Labour Court lacks jurisdiction. Held: (2) The referral is dismissed for want of jurisdiction. Held: (3) There is no order as to costs.
JUDGMENT
MOSHOANA, J
Introduction
[1] The dispute is enrolled before me for the determination of special pleas that are raised by the respondent in the main action, the Fidelity Security Services (Pty) Ltd (Fidelity). In the main, Fidelity persisted with the lack of jurisdiction special plea.
Background facts
[2] After a successful exception, the Professional Transport & Allied Workers Union (PTAWU) filed an amended statement of case on 27 September 2019. A claim of alleged automatically unfair dismissal was made against Fidelity. When the dispute was referred for conciliation as required by the LRA, PTAWU cited Fidelity ADT (Pty) Ltd (ADT) as the only party for conciliation. Conciliation failed and the dispute was referred to this Court for adjudication.
[3] Owing to the fact that the dispute as between Fidelity and the member of PTAWU was never referred for conciliation and no conciliation was attempted, Fidelity objected to jurisdiction of the Labour Court. As provided for in the practice manual, the objection served as an interlocutory application before me.
Evaluation
[4] The jurisdictional power of this Court depends on a referral of a dispute for conciliation. In other words before this Court may adjudicate on a dispute alleging automatically unfair dismissal as between PTAWU on behalf of its member and Fidelity, after evidence that the parties involved attempted conciliation. In casu, it is common cause that PTAWU attempted conciliation with ADT who happens to be a wrong employer party.
[5] It is rested law, as it was clarified in September and others v CMI Business Enterprises CC[1], that absent conciliation there is no jurisdiction. In Numsa v Intervalve (Pty) Ltd and Others[2], it was confirmed that a referral must be served on the employer party as required by section 191 (3) of the LRA.
[6] Therefore, having failed to serve Fidelity with the referral for conciliation, this Court lacks jurisdiction to adjudicate the dispute between PTAWU on behalf of its member and Fidelity.
[7] In the results, I make the following order:
Order
1. The special plea of lack of jurisdiction is upheld.
2. The referral is dismissed for want of jurisdiction.
3. There is no order of costs.
GN. Moshoana
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr
R Atcheson.
For the Respondent: Mr
M Jama Union Official.
[1] (2018) 39 ILJ 987 (CC)
[2] [2015] 3 BLLR 205 (CC).