CCT72/14

[2014] ZACC 35

2015 (2) BCLR 182 (CC)

[2015] 3 BLLR 205 (CC)

(2015) 36 ILJ 363 (CC)

Cameron J Majority judgment

Zondo J separate judgment

Nkabinde J separate judgment

Froneman J separate judgment

4 September 2014

12 December 2014

http://hdl.handle.net/20.500.12144/3758

Application for leave to appeal against a judgment of the Labour Appeal Court: ntervalve (Pty) Ltd and Another v National Union Of Metalworkers Of South Africa obo Members (JA24/2012) [2014] ZALAC 29; (2014) 35 ILJ 3048 (LAC) (26 March 2014).

Labour Court Rules — rule 22 — application for joinder of employer in unfair dismissal dispute — joinder refused Labour Relations Act 66 of 1995 — section 191 — conciliation a precondition for adjudication by Labour Court — effect of failure to cite all employers in referral to conciliation — no substantial compliance unless each employer is cited Waiver — estoppel — effect of employers handling the dispute jointly — grounds for neither waiver nor estoppel established. Application for leave to appeal against a judgment of the Labour Appeal Court. The applicants sought leave to appeal against an order denying the joinder of employers to a case regarding the alleged unfair dismissal of employees. The Court confirmed the Labour Appeal Court’s decision and dismissed the appeal. The Court held that section 191 of the Labour Relations Act 66 of 1995 (LRA) makes referral of a dispute to conciliation a precondition to the Labour Court’s jurisdiction. The Court found that the applicants did not timeously cite the proposed joinder employers in conciliation proceedings, despite notice being given to a closely related company, and therefore failed to comply with section 191. The concurring judgment also found that the dispute against the employers in the proposed joinder was not originally referred to conciliation because those were separate disputes with the applicants. The dissenting judgment held that the applicants substantially complied with section 191, and that demanding strict compliance in these circumstances conflicts with the primary objective of the LRA. A further separate dissent agreed with much of the main and concurring judgments’ exposition of the law, but endorsed the proposed outcome of the main dissent. The further dissent argued that the majority decision focuses too much on a technical mistake rather than the substantive issue regarding whether there was practical prejudice because of non compliance. Majority: Cameron J (Mogoeng CJ, Moseneke DCJ, Khampepe J, Leeuw AJ and Zondo J concurring) Separate concurrence: Zondo J Dissent: Nkabinde J (Froneman J, Jafta J, Madlanga J and Van der Westhuizen J concurring) Dissent: Froneman J (Madlanga J and Nkabinde J concurring)