SACCAWU obo Makou v Shoprite Checkers (Pty) Ltd (JS864/22) [2024] ZALCJHB 203 (13 May 2024)
The referral of the unfair dismissal dispute was made outside the statutory 90-day period prescribed by section 191(11)(a) of the Labour Relations Act. No application for condonation was made by the applicant. In the absence of a condonation application, the Labour Court lacks jurisdiction to entertain the dispute....
Source-derived case information.
- Citation
- [2024] ZALCJHB 203
- Parties
- Applicant: SACCAWU obo Minah Ntombizodwa Makou; Respondent: Shoprite Checkers (Pty) Ltd
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JS864/22
- Procedural Posture
- Special Plea / Jurisdictional Challenge; Referral Out of Time
- Outcome
- The respondent's special plea is upheld and the applicant's dispute is dismissed for lack of jurisdiction.
- Judges
- R Itzkin
- Legal Topics
- Unfair Dismissal, Jurisdiction, Condonation, Referral Out of Time
Source-derived case record
Summary, issues, holding and outcome
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Parties
SACCAWU obo Minah Ntombizodwa Makou
Applicant
Shoprite Checkers (Pty) Ltd
Respondent
Procedural Posture
Special Plea / Jurisdictional Challenge; Referral Out of Time
Legal Issues
- 1 Whether the referral of the unfair dismissal dispute to the Labour Court was made within the prescribed 90-day period.
- 2 Whether the applicant sought condonation for the late referral.
- 3 Whether the Labour Court has jurisdiction to entertain the dispute in the absence of a condonation application.
Ratio Decidendi
The referral of the unfair dismissal dispute was made outside the statutory 90-day period prescribed by section 191(11)(a) of the Labour Relations Act. No application for condonation was made by the applicant. In the absence of a condonation application, the Labour Court lacks jurisdiction to entertain the dispute. The respondent's special plea of lack of jurisdiction is upheld, and the matter is dismissed.
Court Disposition
The respondent's special plea is upheld and the applicant's dispute is dismissed for lack of jurisdiction.
Orders
- The respondent’s special plea is upheld.
- The court lacks the requisite jurisdiction to entertain the applicant’s dispute, which is accordingly dismissed.
Full Case Text
Judgment text and source record
44 paragraphs
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JS864/22
In the matter between:
SACCAWU obo MINAH NTOMBIZODWA MAKOU
Applicant
and
SHOPRITE CHECKERS (PTY) LTD Respondent
Heard: 4 OCTOBER 2023
Delivered: 13 May 2024
Summary: (REFERRAL OUT OF TIME – NO CONDONATION APPLICATION - RESPONDENT’S SPECIAL PLEA OF LACK OF JURISDICTION UPHELD)
JUDGMENT (AS VARIED IN TERMS OF SECTION 165(b) OF THE LABOUR RELATIONS ACT 66 OF 1995 TO CORRECT OBVIOUS ERRORS IN DATES AT PARAGRAPHS 2, 4 AND 5)
ITZKIN, AJ
Introduction
[1] The respondent in the main proceedings (Shoprite) has raised a special plea to the effect that the referral of an unfair dismissal
claim by the applicant (SACCAWU, representing its member, Ms Makou), is out of time, as a result of which there is no jurisdiction to entertain the matter.
[2] Ms Makou was dismissed following an alleged illegal work stoppage on 26 March 2022. She alleges she did not participate in it; Shoprite alleges that she did.
[3] Following Ms Makou’s dismissal, SACCAWU referred her alleged unfair dismissal dispute to the CCMA.
[4] On 23 May 2022, the CCMA issued a certificate of outcome confirming that the matter remained unresolved.
[5] The statement of case in this matter was delivered on 8 December 2022.
[6] At the hearing of the matter, SACCAWU did not have a representative in attendance. I was provided with e-mail correspondence with the Registrar reflecting that the applicant was notified of the set-down, and a response from Leatha Marakalala of SACCAWU dated 28 September 2023, confirming SACCAWU’s receipt of this notification.
Shoprite’s special plea
[7] Section 191(5) of the Labour Relations Act[1] (LRA) provides as follows:
‘(b) the employee may refer the dispute to the Labour Court for adjudication if the employee has alleged that the reason for dismissal is—
(ii) based on the employer’s operational requirements’
[8] Section 191(11)(a) provides as follows:
‘The referral, in terms of subsection (5)(b), of a dispute to the Labour Court for adjudication, must be made within 90 days after the council or (as the case may be) the commissioner has certified that the dispute remains unresolved.’
[9] It is evident that this time period was not complied with.
[10] Section 191(11)(b) provides that “the Labour Court may condone non-observance of that time-frame on good cause shown”.
[11] SACCAWU has not applied for condonation for its non-compliance with the 90 day time-period.
[12] In the circumstances, the court lacks the requisite jurisdiction to entertain the matter.
[13] With reference to the issue of costs, Shoprite’s representative confirmed that no cost order was sought.
[14] In the result, I make the following order:
Order
1. The respondent’s special plea is upheld.
2. The court lacks the requisite jurisdiction to entertain the applicant’s dispute, which is accordingly dismissed.
3. There is no order as to costs.
R Itzkin
Acting Judge of the Labour Court of South Africa.
Appearances
For the Applicant: No appearance
For the Respondent: Nicola Watson
Instructed by: Wilken Inc.
[1] Act 66 of 1995, as amended.