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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article which looks at the practical effect of Item 4(2) of the Dismissal Code of Good Practice in relation to disciplining a shop steward, a subject of frequent Worklaw Helpline queries. We also look at three new cases: The first case stresses the importance of the correct classification of the dispute when referring it to the CCMA or a bargaining council. The second case is about a challenge to the practice of extending collective agreements to non-members of the majority union. The third case - a recent decision of the SCA - looks at when the High Court rather than the Labour Court can be approached for workplace disputes.

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Categorising the dispute correctly

Some time after appointing an employee, the employer learnt that an employee had falsified his academic credentials. An enquiry was held and he was dismissed on 21 October 2010. However, prior to his dismissal, he had been suspended on 7 January 2010. Thus he was on suspension for nine and a half months. During this period, he was not paid his salary. The employee did nothing to challenge the employer about non-payment during this period.

He eventually referred a dispute for conciliation to the bargaining council concerning his suspension without pay, 692 days after his dismissal. When the matter was placed before the arbitrator, the question of the long delay arose. The employer argued that the referral, which was really an unfair labour practice dispute about an alleged unfair suspension, ought to have been made within 90 days in terms of s191(1)(b)(ii) of the LRA. As the referral was late, and as no condonation was sought of that non-compliance, the matter should not be heard.

The employee countered by arguing that the referral of the dispute was not late because what had been referred was a dispute about an interpretation of a collective agreement in terms of s24(2) of the LRA, as the applicable collective agreement required a precautionary suspension to be on full pay (unlike unfair labour practice and unfair dismissal disputes, s24 does not prescribe any fixed period for a referral, which only has to be referred within a reasonable time). The employee in the referral form to the bargaining council had described the issue in dispute as "interpretation and or application 24(2) and 24(5). The applicant was placed on precautionary suspension without (pay) remuneration".

The arbitrator did not interrogate whether the employee's characterisation of his dispute under s24 was correct. The arbitrator merely accepted the employee's characterisation of the dispute at face value and entertained the dispute on the basis that it had not yet prescribed according to the time limits in the Prescription Act.

On review, the Labour Court set the arbitrator's ruling aside. The Labour Court reasoned that the dispute was not a s24 dispute, but was really a dispute about an unfair labour practice concerning an unfair suspension as contemplated by s186(2)(b) of the LRA. By implication the referral was late and in the absence of a condonation application, the matter ought not to be entertained. On appeal to the LAC in Hospersa obo Tshambi v Department of Health, KwaZulu-Natal (DA1/2015) [2016] ZALAC 10 (24 March 2016), the Court held that the invocation of s24 by the employee and the bland acceptance of that characterisation by the arbitrator were plainly wrong. It agreed with the Labour Court's criticism of the Union's attempt to bring the dispute under s24 to circumvent the obviously late referral of an unfair labour practice dispute.

This principle was confirmed by the LAC: An arbitrator is required to determine the true dispute between the parties. To that end, it is necessary to establish the relevant facts and construe the category of dispute correctly. An arbitrator must make an objective finding about what is the dispute to be determined.

Extending a collective agreement to non-members of the majority union

Determining union membership levels can be crucial for the purposes of the LRA. S23 provides a process through which a collective agreement concluded with a majority trade union can be legally extended to cover all employees, whether they are non union members or even members of another union. To determine the extent of union membership, it is obviously critical to know what constitutes "the workplace". S213 of the LRA provides a definition of "workplace" that provides some guidance but still leaves many questions unanswered.

As a result of the 2013 annual wage negotiations in the mining industry, the Chamber entered into a collective agreement with NUM, Solidarity and UASA that was extended to cover all employees, including AMCU members, in terms of s23 of the LRA. This was subsequently challenged by AMCU. Each of the mining companies who were part of the Chamber of Mines (Harmony, Anglo Gold and Sibanye) owns more than one mine. At certain of the individual mines of those companies AMCU had a majority membership and at others it did not, but overall AMCU did not have the majority membership at most of the companies' mines.

The issues in this case are technical and you may need to get a copy of the LRA open to make sense of them! The main issue in the Labour Court and on appeal to the LAC was whether each individual mine of the respective mining companies, constituted a "workplace", as defined in s213 of the LRA. AMCU contended that they were - and therefore where AMCU was the majority union, the collective agreement with NUM did not apply. But AMCU also argued that if the individual mines were not separate workplaces, then s23(1)(d)(iii) of the LRA was unconstitutional (this is the section in terms of which a collective agreement can be extended to members of minority unions).

The Labour Court held, based on the facts of the case, that the individual mines of the respective companies did not constitute an independent workplace and that the sections under attack, including s23(1)(d)(iii) of the LRA, are constitutional. The LC found that the agreement had been validly extended to other employees in the respective workplaces, including AMCU's members. The LC's decision was taken on appeal to the LAC in Association of Mineworkers and Construction Union and Others v Chamber of Mines of South Africa and Others (JA103/2014) [2016] ZALAC 11 (24 March 2016).

At the LAC, the Union argued that by virtue of the principle of majoritarianism contained in s23(1)(d) of the LRA, minorities in the workplace may be bound by a collective agreement entered into between the employer/employers and the majority of employees, or the representatives of that majority. S23(1)(d) read with s65(1)(a) of the LRA effectively means that minorities are also precluded from striking in respect of the subject matter of the agreement which is binding upon them. The objection to this consequence was primarily based on the notion that s23(1)(d) does not have the safeguards which s32 of the LRA does(dealing with the extension of bargaining council collective agreements) in relation to the extension of collective agreements to non-parties.

The LAC upheld the Labour Court's judgment confirming that the principle of majoritarianism found in s23(1)(d) (read with s65(1)(a) which prohibits minority employees from striking if covered by a collective agreement that has been extended to apply to them), is not contrary to the Constitutional right to strike and to bargain collectively.

High Court or Labour Court?

During 2012 and 2013 a suspicion arose amongst certain members of SAMWU, including 16 provincial office bearers, that 4 national office bearers were involved in acts of financial mismanagement, corruption and misappropriation of SAMWU's funds. The suspicion was triggered by the failure of SAMWU's finance committee to provide financial reports for the year 2013. The allegations of corruption resulted in a meeting of SAMWU's Central Executive Committee (CEC) being convened in April 2014. At that meeting, a motion was proposed that the 4 national office bearers be removed from office. However no resolution was passed on the issue. A decision was postponed pending consultation, by provincial office bearers, with their constituencies.

It was whilst the motion stood postponed that the 16 provincial office bearers were removed from office by the 4 national office bearers. The reasons given for the suspension and expulsion were that they had spread malicious information about, were 'unruly' or disruptive towards, and 'undermined' the national office bearers. The 16 provincial office bearers then brought an application in the High Court challenging their removal. They contended that the prescribed disciplinary procedures were flouted when the decision to remove them from office was taken. In opposing the application for reinstatement, the national office bearers raised a point in limine that in terms of s157(1) of the LRA - which gives exclusive jurisdiction to the Labour Court - the High Court lacked jurisdiction to hear the application.

The issue for determination in the appeal to the SCA in SAMWU v Mokgatla (20810/2014) [2016] ZASCA 24 (18 March 2015) was whether the High Court and the Labour Court have concurrent jurisdiction in respect of disputes emanating from s158(1)(e) of the LRA (this section grants jurisdiction to the Labour Court in disputes between a trade union and its members over non-compliance with the union constitution). The appeal was against the High Court's judgment declaring unlawful and setting aside the suspension and expulsion of the provincial office bearers from their membership and employment with SAMWU. The High Court had dismissed a special plea raised by the national office bearers that it lacked jurisdiction to consider the application by the provincial office bearers for their reinstatement.

The SCA came to a different conclusion, holding that if the case falls within s158(1)(e)(i) of the LRA then the jurisdiction of the Labour Court is exclusive. It did so by following the reasoning in an earlier Constitutional Court case. This was that s157(2) - which gives the High Court concurrent jurisdiction in constitutional matters - must be construed in the light of the primary objectives of the LRA. The first is to establish a comprehensive framework of law governing the labour and employment relations between employers and employees in all sectors. The other is the objective to establish the Labour Court and the Labour Appeal Court as superior courts, with exclusive jurisdiction to decide matters arising from the LRA. The only way to reconcile the provisions of s157(2) and harmonise them with those of s157(1) and the primary objects of the LRA, is to give s157(2) a narrow meaning. The application of s157(2) must be confined to those instances, if any, where a party relies directly on the provisions of the Bill of Rights.

The lesson of this case is simply that unless a party raises a constitutional challenge right up front, the correct court is the Labour Court.


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Bruce Robertson
April 2016
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