SHOWUSA obo Adries and Others v National Bargaining Council for the Road Freight and Logistics Industry and Others (J449/2020) [2021] ZALCJHB 246 (16 August 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 449/2020

Revised

16/08/2021

In the matter between:

SHOWUSA OBO MAUTSANE ADRIES AND

3 OTHERS Applicants

and

NATIONAL BARGAINING COUNCIL FOR THE ROAD

FREIGHT AND LOGISTICS INDUSTRY First

Respondent

RAMATOBANE MAODI N,O. Second

Respondent

DSV SOLUTIONS (PTY) LTD Third

Respondent

Heard: 07 July 2020

Delivered: (ln view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be 16 August 2021.)

JUDGMENT

MAHOMED, AJ

[1] This is a rather curious matter. I say curious, because one would expect that employees delight in the benefit of expeditious dispute

resolution provided by the Labour Relations Act[1] (the LRA). This after all is the hall mark of the LRA. The irony of this matter is that it is the individual applicants, specifically

through their union representative Mr Justice Tshabalala, who are delaying the consideration of their dispute on the merits which

matter should by now, all things being equal, have been finalised at arbitration. Instead, their matter is before the Labour Court and unnecessarily so for reasons set out below.

[2] I was called upon to determine a special plea and exception raised by the respondent to the statement of claim filed by the applicants.

[3] The history goes back to 2019, when the individual applicants were dismissed by the third respondent. The union referred an alleged

unfair dismissal claim on behalf of the individual applicants to the first respondent on 9 September 2019. The dispute is clearly

identified as a misconduct dismissal on the referral form with the summary of the facts of the dispute providing that: "Applicants were dismissed for timekeeping, insubordination and dishonest breach of the disciplinary code". The individual applicants seek reinstatement, a primary remedy under the LRA to which they are entitled unless certain exceptions arise. Whether they are entitled to such remedy which has serious consequences for both the individual applicants and the third respondent falls on the shoulders of the second respondent.

[4] It is not clear from the papers when the claim was enrolled for conciliation. But, by 26 November 2019 a pre-arbitration minute was concluded. The parties anticipated that the arbitration would run for three days and that an inspection in loco be conducted. It is trite that parties are bound to an agreed pre-arbitration minute.

[5] I was informed by Mr Steyn for the third respondent, that the parties were meant to proceed to the inspection in loco on 12 November 2020. Instead, the matter was enrolled for arbitration on the day. This obviously being a procedural error. Not a fatal one, however. Mr Steyn was not certain whether there was a previous day of arbitration. Instead of the parties proceeding to the inspection in loco, the union raised an issue that the first respondent lacked jurisdiction to arbitrate the dispute and that the union had referred the claim to the Labour Court. The third respondent was represented at the arbitration by a Mr Roos of the Employers Organisation CTL Management Forum.[2] Instead of the second respondent making a ruling on whether the first respondent had jurisdiction he postponed the arbitration sine die in an ex tempore ruling which was not reduced to writing. This is really concerning conduct on the part of the second respondent. It is not clear what was the position of Mr Roos to the postponement and the failure of the second respondent to issue a written ruling. Why it is that the second respondent would postpone the matter and do so without a written ruling setting out the basis for the postponement is to be further investigated by the first respondent.

[6] Mr Tshabalala has been seized with this claim since inception and has been entrusted to assist the individual applicants in the pursuit of their claim against the third respondent. Mr Tshabalala proceeded on 18 November 2020 to file a Statement of Case in the Labour Court, this after the postponement of the arbitration. The claim is met by a special plea of lis pendes and an exception by the end of November 2020.

[7] In the weeks leading up to this hearing Mr Tshabalala made contact with the Court for the convening of a pre-trial conference. I mention this as Mr Tshabalala was informed prior to 7 July 2021 that his request for a pre-trial conference was premature.

[8] At the hearing of the third respondents' interlocutory points, Mr Steyn respondent conceded that the special plea and the exception were not properly raised by the third respondent when I raised certain concerns I had with the special plea and exception.[3] His concessions were well made. This is primarily for two reasons, lis pendens cannot be correctly invoked where the Labour Court quite clearly has no jurisdiction to entertain the existing unfair dismissal claim and the defence cannot be raised juxtaposed against an exception that the claim is vague and embarrassing.

[9] At face value, the statement of claim does not even set out a basis upon which it is alleged that the Labour Court has jurisdiction to entertain a misconduct dismissal. The union fails dismally in establishing jurisdiction in the case pleaded in the statement of claim. This puts a quick break to a matter which should not have come before this Court in the first place. It is a simply a question of a lack of jurisdiction. This matter was properly before the Council and should have remained at such dispute level for finalisation as provided by the LRA.

[10] Mr Steyn argued that the costs of these proceedings be borne by the applicants. The third respondent sought costs on a punitive scale in the papers but this was not persisted with at the hearing. I decline to grant the costs sought in light of the concession made that the special pleas raised were not properly drawn.

[11] This having been said, the Court must mark its displeasure at the frivolous pursuit of this matter by Mr Tshabalala in this Court and his delay in having the underlying dispute properly considered by the first respondent which delays are prejudicial to both the individual applicants (members of the union he represents) and the third respondent. I am accordingly inclined to order that Mr Tshabalala pay costs of the proceedings on 7 July 2021 de bonis propriis.[4] I have made a limited cost order against Mr Tshabalala for his unnecessarily delaying the finality of this dispute. This is at odds with the requirement of the LRA that disputes be dealt with expeditiously and his approach is contrary to the interests of the members of the union.

[12] The individual applicants rely upon the union to assist them in the protection of their rights and pursuing their case through the

correct channels established under the LRA. There was no reason for the postponement of the arbitration and the frivolous referral of a misconduct dismissal claim to the Labour Court was unjustified. This is basic. Mr Tshabalala is expected as a union official to know the processes of this Court where he has a right of appearance. The limited cost order is intended to compel Mr Tshabalala in future to properly apply his mind before unnecessarily postponing an arbitration and without any basis and merit referring a dispute (properly before the Council) to the Labour Court on poorly drawn papers. This a court and it must safeguard its integrity and processes. It is not open to a representative of a party to simply abuse its processes where there is no merit.

[13] This matter has been unnecessarily delayed by Mr Tshabalala and now needs to be expedited by the first respondent.

[14] Accordingly, the following order is made:

Order

1. The Labour Court does not have jurisdiction to adjudicate the claim under the above case number.

2. The first respondent is directed to enrol the dispute under case number: GAEK11516-19 for arbitration de novo before a Commissioner other than the second respondent.

3. The first respondent is directed to issue a set down date within two months of the date of this order.

4. The pre-arbitration minute concluded on 26 November 2019 between the applicant and the third respondent remains binding.

5. The commissioner appointed to arbitrate the dispute is to determine when the inspection in loco agreed upon in the pre-trial minute of 26 November 2019 is to be conducted.

6. The National Secretary of the Executive Committee of the first respondent is directed to investigate the conduct of the second respondent in granting a postponement of the arbitration on 12 November 2020 without handing down a written ruling justifying the postponement of the arbitration.

7. SHOWUSA trade union official, Mr Justice Tshabalala, is to pay the costs of the third respondent on 7 July 2021 de bonis propriis on the attorney and client scale.

I.I. Mahomed

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant: No

Appearance

For the third Respondent: Darran Ledden Inc

[1] No. 66 of 1995, as amended.

[2] Mr Steyn made submissions from the bar on what transpired on 12 November 2020.

[3] Mr Steyn confirmed that Mr Tshabalala the union official representing the individual applicants declined the invitation for the online hearing and an attempt by Mr Steyn to contact him telephonically was unsuccessful in that the call went to voicemail.

The matter was accordingly heard without Mr Tshabalala.

[4] Wenum v Maquassi Hills Local Municipality (2016) 37 ILJ 1488 (LC); Sepheka v Du Point (2019) 40 ILJ 613 (LC).