The LC refused to uphold the employer’s special plea relating to lack of jurisdiction and was satisfied that the trade union had complied with s 191(3) of the LRA read with Rules 5 and 6 of the CCMA Rules. Although the employer denied receiving the referral form this did not imply that it was not actually served on behalf of the trade union.
Amcu v Tshipi Entle Manganese Mining (Pty) Ltd (JS542/16) [2016] ZALCJHB 375 (20 September 2016) per Tlhotlhalemaje J.
Excerpts without footnotes
[3] In its statement of response, the Respondent raised a point in limine, as indicated above. The issue therefore is whether there was compliance with provisions of section 191(3) of the LRA by means of a proper service of the referral form on the Respondent. This provision is to be read together with Rules 5 and 6 of the Commission for Conciliation Mediation and Arbitration (“CCMA”) Rules. Aligned to that question is whether the non-service of the referral form was so material as result in this court lacking jurisdiction to adjudicate the unfair dismissal dispute before it.
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[7] The pertinent provisions for the purposes of adjudication of an alleged unfair dismissal dispute arising from an employers’ operational requirements are those found in section 191(1)(a), (b); (3); (4) and (5)(b)(ii) of the LRA. Thus a dispute must have been referred to the relevant bargaining council or the CCMA within the prescribed thirty days; that referral must have been served on the respondent party; the Council or the CCMA must have attempted to resolve the dispute through conciliation, and thereafter issued a certificate of non-resolution as contemplated in section 135 of the LRA.
[8] The Respondent’s contention is that its special plea is not merely a technical or formalistic complaint of non-compliance, but that it relates to a fundamental and substantive aspect. I nevertheless disagree with the Respondent’s contentions, and indeed hold the view that the special plea is overly technical, formalistic, and worst still, spurious. . . . . .
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[12] It was common cause that the Respondent was not present at the conciliation proceedings held on 6 April 2016. Nevertheless, a certificate of outcome was issued, enabling the Applicant to refer the dispute for adjudication. The Respondent contends that it was denied the benefit and opportunity of the conciliation process. It further relied on EOH Abantu (Pty) Ltd v CCMA and Others[1]; the provisions of section 157(4)(a) of the LRA, and the Constitutional Court decision in NUMSA v Intervalve (Pty) Ltd and others[2]for the proposition that attempts must have been made to conciliate disputes before resorting to other methods of dispute resolution.
[13] There can be no quarrel with the proposition that conciliation is indispensable and a precondition to Commissioner’s or the Labour Court’s jurisdiction over unfair dismissal disputes[3]. There have been debates in regards to whether prior to a certificate of outcome being issued, there must be an actual conciliation process to attempt to resolve the dispute. Within the context of mutual interest and strike disputes however, it makes sense to insist on the parties having an actual conciliation process as was stated in Transport and Allied Workers Union of South Africa v PUTCO Limited[4]. This is due to the concomitant consequences of industrial action to both the employer, the employees and general public as we have come to know them. An insistence on actual conciliation, and where successful, can go a long way in preventing industrial action.
[14] In the context of ordinary unfair dismissal disputes however, to insist on an actual conciliation process prior to a certificate of outcome being issued or a matter being arbitrated or adjudicated might seems to be easier said than done. There are practical and legal considerations to be taken into account on insisting on conciliations within the context of unfair dismissal disputes.
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[20] It therefore follows that the reliance by the Respondent in this case on NUMSA v Intervalve (Pty) Ltd and others is wholly misplaced in that the facts of those case are substantially different to those in casu. The issue in that case pertained to whether there was actual service of the referral dispute on one of the alleged employer parties. The issue however in this case is whether there was substantial compliance with the provisions of section 191(3) read together with those of Rules 5 and 6 of the CCMA Rules. As compared to Intervalve where there was no service of the referral at all on the one party, it is my view that in this case, there was substantial compliance.
[21] The Respondent’s other complaint was that it was denied of an opportunity to having a trained conciliator to conciliate the dispute between the parties. Once cannot help but be sceptical of this contention. The parties went through four rounds of facilitations under the auspices of the CCMA and three further consultations on their own prior to the retrenchments. I have utmost faith and confidence in the ability of the CCMA to resolve disputes through the assistance of their conciliators. However, any meaningful conciliation and successful resolution of disputes is dependent on the willingness of the parties to find such resolution.
[22] If indeed the Respondent was serious about finding a resolution to the ongoing dispute between the parties, nothing prevented it from so suggesting to the Applicants, even after the retrenchments had taken place. At no stage after the retrenchment, inclusive of the launching of the two matters before the court did the Respondent ever suggest to the Applicants that it was amenable to resolving the dispute. The fact that the Respondent raises these spurious preliminary points raises even more doubts about its seriousness to commit to any meaningful conciliatory process, especially since it seeks that the main claim be dismissed if the preliminary points are upheld. The complaint therefore that the Respondent was denied an opportunity of a conciliation is mere red herring.