Unfair discrimination disputes
By now, the path of section 191 of the Labour Relations Act of 1995 (the LRA) is a well-trodden path. Section 191 sets out how an unfair labour practice dispute or an unfair dismissal dispute must be referred to either a bargaining council or to the CCMA. Section 191 provides for a conciliation stage followed by an arbitration stage – unless the dispute relates, for example to an alleged automatically unfair dismissal or a dismissal for operational reasons. In these cases, the dispute must be referred to the Labour Court for adjudication if conciliation has failed to resolve the matter.
In Masango v Liberty Group (2011) 20 LC 1.23.2 the question arose whether section 191 of the LRA also applies, to some extent, to unfair discrimination disputes. The applicant employee brought an unfair discrimination dispute against her employer in terms of section 60 of the Employment Equity Act of 1998 (EEA) – she claimed that she was the victim of sexual harassment by a regional manager and that her employer had done nothing to stop the harassment, even though she had reported the matter.
The employer raised two initial points. The first point was that the dispute was referred to the Labour Court outside the 90-day period provided for in section 191(11)(a) of the LRA – and that the applicant had not applied for condonation. The second point is also of some interest from a procedural point of view: whether the applicant should have referred the dispute to the Labour Court by way of action proceedings or by way of motion proceedings. This procedural issue was relevant, the employer argued, because there were material disputes of fact that could only be resolved by means of oral evidence.
So, what happened?
The applicant employee in this case resigned after she had accused a regional manager of sexually harassing her. She claimed compensation from the employer – given that she had resigned, no other remedy was sought in this case.
In November 2009 she referred an unfair discrimination dispute to the CCMA and the CCMA eventually issued a certificate of outcome stating that the dispute remained unresolved. The only forum to which the dispute could now go was to the Labour Court. But there were some uncertainties about the conciliation process: the employee said that the CCMA had failed to notify her legal representative that the matter had been set down for conciliation on 22 December 2009. Nor was it clear from the papers before the Labour Court that the employer put in an appearance in the conciliation proceedings.
It was only when the applicant employee made enquiries about the outcome of the conciliation process that she was told that a certificate of outcome had been issued. Obviously unaware of the jurisdictional niceties, the employee then applied to have the matter resolved through arbitration under the auspices of the CCMA – only to be told (in May 2010) that the CCMA did not have the necessary jurisdiction to hear the matter. The applicant employee only referred the dispute to the Labour Court in June 2010 by way of motion proceedings.
The employer’s first point in limine was that the employee should have referred the dispute to the Labour Court within 90 days of the certificate of outcome being issued – for this, the employer relied on section 191(11) of the LRA. The second point in limine was simply that the applicant had (wrongly) referred the matter to the Labour Court to be determined by way of notice of motion and affidavit evidence. There were disputes of fact that could, the employer argued, only be resolved by way of evidence.
The question is, of course, why the employee waited so long to follow up on the matter and why she took so long to refer the dispute to the Labour Court. The employee claimed that her attorney was not notified of the conciliation meeting in December 2009 and that she only heard about the certificate in January 2010. The applicant employee also indicated that she had attempted to settle the dispute before it was referred to the Labour Court for adjudication – she had, in other words, been pro-active and had not simply waited or delayed referring the dispute.
The employer’s argument was simply that section 10 of the EEA, read with section 191(11) of the LRA, obliged the employee to refer her unfair discrimination dispute within 90 days after the certificate of outcome had been issued. The employee’s calculation of the days started on the date on which the CCMA commissioner had made a jurisdictional ruling – in May 2010. The employer’s calculation of the 90 day period started much earlier: it began when the CCMA commissioner issued a certificate of non-resolution in December 2009.
It was clear to the Labour Court that section 10 of the EEA was the applicable legislative provision governing the procedure for this dispute to be referred. Section 10(7) provides that this provision had to be read with certain parts of Chapter VII of the LRA. Chapter VII of the LRA deals with dispute resolution (conciliation, arbitration, the CCMA, the Labour Court) – it does not deal with dismissal disputes. As the Court pointed out, Chapter VIII of the LRA did not deal with discrimination disputes at all.
After considering the provisions of section 10 of the EEA and the contents of Chapter VII of the LRA, the Labour Court concluded that the employee’s claim in this case was founded in the EEA. It was not a claim for unfair dismissal. This meant that section 191 of the LRA was not applicable to her case at all. Section 191 of the LRA falls in Chapter VIII of the LRA – the chapter of the LRA dealing with disputes about unfair dismissals and unfair labour practices. There was no time limit set out in section 10 of the EEA – no indication as to the time period within which an unfair discrimination dispute had to be referred to the Labour Court for adjudication.
This, of course, answered only part of the question. The remaining issue was whether there were any time periods contained in Chapter VII of the LRA that applied in this case. The Labour Court closely examined a number of provisions contained in Chapter VII of the LRA and found that Part C and Part D of Chapter VII of the LRA have nothing to say about how unfair discrimination disputes are to be referred.
The correct calculation
The correct position, the Labour Court held, is that an unfair discrimination dispute could be referred to the CCMA for conciliation within 6 months from the date on which the act or omission allegedly took place. If the referral of the dispute is late, the CCMA may, of course, condone such late referral. Once the matter has been referred to the CCMA, the CCMA must follow the usual procedure and set the matter down for conciliation.
If conciliation fails to resolve the matter, the employee can refer the matter to the Labour Court for adjudication – unless both parties agree that the matter will be dealt with by means of arbitration by the CCMA. There is no time limit within which an applicant must refer the dispute to the Labour Court after the certificate has been issued. The only rule that applies is that it must be made within a “reasonable period”. The time periods set out in section 191 of the LRA do not apply.
There is, unfortunately, no indication of what a “reasonable time” is – but, added the Court, a late referral (one not made within a “reasonable time”) could be condoned. It was not necessary for the Labour Court to consider this issue in this case. The Labour Court leaves more questions unanswered: what would the consequences be if a commissioner does not try to conciliate the dispute? What happens if neither party shows up for the conciliation process? What would be the result if the commissioner fails to serve a copy of the certificate of non-resolution (see section 135(5) of the LRA) on both parties?
In summary, the Labour Court said the following:
“ The respondent's point in limine stands to be dismissed since it was raised on the basis that the referral should have been made within 90 days from the date when conciliation had failed in terms of section 191(11)(a) of the LRA. Section 191(11)(a) of the LRA is not applicable. There is no time limit either in the applicable sections of the LRA or the EEA within which an unfair discrimination dispute should be referred to this Court for adjudication. The dispute should be referred to this Court within a reasonable period. Even if it could be inferred from the point in limine that it was contended that the dispute was not brought within a reasonable period, which is not what was pleaded, the dispute was clearly brought to this Court within a reasonable period. What is reasonable would depend on the facts of each case. There was therefore no need for the applicant to apply for condonation.”
The form of the application
For some reason the employee did not deal with the employer’s second point, namely that she should have proceeded by way of action proceedings because she should have anticipated that material disputes of facts would arise. On this point the Labour Court agreed with the employer. The Court said that the applicant employee should have anticipated that there would be disputes of fact when she referred the unfair discrimination (sexual harassment) dispute to the Labour Court.
Obviously, said the Court, the applicant should have considered the very real possibility that the regional manager – whom she claimed had harassed her, would deny that he had done so. Another dispute of fact would arise in relation to the employee’s claim that the employer did nothing in response to her complaints that she was sexually harassed.
This meant that, in respect of the first objection by the employer, the applicant employee succeeded. In respect of the employer’s second initial point, the employer partly succeeded. So what was the Labour Court to do? It issued an order dismissing the employer’s first point in limine and partly upheld the employer’s second point. The matter was referred to trial and the parties were ordered to convene a pre-trial conference within 10 days of the date of the Labour Court’s order. Each party was to bear its own costs.
Masango v Liberty Group
(2011) 20 LC 1.23.2
||JS 576 / 2010
||31 August 2011
||Labour Court, Johannesburg
Practice and Procedure
Referral of dispute
practice and procedure – referral of dispute – applicant brought unfair discrimination dispute against respondent – respondent raised two points in limine – timeousness – material disputes of fact - matter referred for trial - pre-trial conference ordered
Alleging that the respondent took no steps against a manager against whom the applicant had levelled a sexual harassment charge, the applicant brought an unfair discrimination dispute against the respondent for compensation in terms of section 60 of the Employment Equity Act 55 of 1998.
The respondent raised two points in limine. The first was that the dispute was referred to the Court for adjudication after the 90-day period referred to in section 191(11)(a) of the Labour Relations Act 66 of 1995 had expired, without applying for condonation. The second point in limine was that the dispute should have been referred to the Court by way of action proceedings as opposed to motion proceedings and that there were material disputes of fact that could not be resolved without the leading of oral evidence.
The Court then required the parties to address it on whether the provisions of section 191 of the Labour Relations Act are applicable in an unfair discrimination dispute.
Held that as the applicant’s claim was founded in the Employment Equity Act and was not a claim for an unfair dismissal, the provisions of section 191 of the Labour Relations Act were not applicable. Section 191 falls under chapter VIII of the Labour Relations Act and deals with disputes about unfair labour dismissals and unfair labour practices. The applicant’s claim for unfair discrimination could be referred to the Court for adjudication in terms of section 10(6)(a) of the Employment Equity Act once the dispute remained unresolved after conciliation.
It remained to be determined whether there are any time limits set out in parts C and D of chapter VII of the Labour Relations Act in relation to an unfair discrimination dispute. An unfair discrimination dispute may be referred to the CCMA for conciliation within six months from the date when the act or omission was alleged to have arisen. The CCMA may condone a late referral of the dispute for conciliation. Once the dispute has been referred to the CCMA for conciliation, the CCMA must attempt to resolve the dispute through conciliation. If the dispute remains unresolved after conciliation, the dispute may be referred to this Court for adjudication and/or to the CCMA for arbitration if both parties have consented to do so. There is no time limit within which such a dispute should be referred to this Court for adjudication. It should be made within a reasonable period.
The respondent’s point in limine stood to be dismissed since it was raised on the basis that the referral should have been made within 90 days from the date when conciliation had failed in terms of section 191(11)(a) which was not applicable.
On the second preliminary point, the Court did not believe that it should dismiss the application on the basis that the applicant should have anticipated that there would be material dispute of facts.
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CEPPWAWU v Mint Road Saw Mills
(2011) 20 CCMA 9.4.1
|Reported on IR Network
||6 June 2011
||Commission for Conciliation, Mediation and Arbitration
||R Mac Gregor
Dismissal for misconduct during course of strike
industrial action – dismissal for misconduct during course of strike – threatening behaviour - strike-related misconduct - employees acting in violent and intimidating manner during work stoppage - employees failing without proper explanation to attend disciplinary hearing - employer proceeding in employees’ absence – dismissal fair
After trade unions then recognised by the respondent gave notice of a strike, the respondent instituted a lockout because agreement could not be reached on picketing rules. The following day the unions withdrew the strike notice. The lockout was lifted, and employees suspected of misconduct were suspended pending a disciplinary hearing. The applicants were found guilty of various acts of intimidation and violence, and dismissed after a hearing in their absence. The applicants denied that they were involved in any misconduct, and contended that the respondent should neither have suspended them nor continued with the disciplinary inquiry in their absence.
The commissioner held that the evidence, including videotapes, indicated that the employees had behaved aggressively, and had prevented customers from gaining access to the respondent’s premises. The Code of Good Practice on Picketing requires strikers to conduct themselves peacefully, and specifically prohibits blockading of the employer’s premises. While the strikers may have had no option but to congregate at the factory gate, they could have moved away to allow customers to enter. Instead, they behaved in a threatening and intimidating manner.
The commissioner held further that the applicants could and should have attended the disciplinary hearing and applied for postponement if, as they claimed, their representatives were not available. The respondent postponed the hearing once, and could not reasonably have been expected to do so again.
The employees’ dismissals were ruled substantively and procedurally fair.
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