Jurisdiction of the Labour Court – the conundrum continues

October 1st, 2019
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Picture source: Gallo Images/Getty

On 4 March, the Labour Court (LC) delivered a seminal judgment in the matter between Vodacom (Pty) Ltd and Others v National Association of South African Workers and Another (LC) (unreported case no J256/19, 4-3-2019) (Lagrange J). Essentially, the court found that non-employers are entitled to approach the LC for interdictory relief.

In brief, the facts of the matter relate to the National Association of South African Workers members, an unregistered union, (the Union) who entered the premises of Vodacom to meet and communicate with its members. The members of the Union were employed by Bidvest Facilities Management (Pty) Ltd (Bidvest) who were contracted by Vodacom to provide cleaning and gardening services on Vodacom’s premises.

Vodacom was unhappy with the meetings and alleged that the meetings were disruptive. In addition, it was alleged that Union members were not holding the meetings at the designated areas that had been previously agreed on between the parties. On 25 January Mpho Morolane, the General Secretary of the Union, entered Vodacom’s premises without prior notice or agreement and held a meeting with the Bidvest employees. As a result of the above Bidvest – through its lawyers – demanded a written undertaking from the Union by 1 February that Union officials should stop entering the premises and cease from holding meetings with its members. On 4 February, the Union’s attorneys wrote to Vodacom’s attorneys advising them that the Union was unable to give the undertaking sought by Vodacom, because it would effectively dissociate the Union from the workers. Consequently, Vodacom launched an urgent interdict against the Union and Mr Morolane.

In this article, I shall not focus on the merits of the case. I will only deal with the matter of jurisdiction. In the Vodacom case, Vodacom was not the employer of the Union members. Bidvest was the employer and the Vodacom premises was the site at which Bidvest employees executed their duties.

Section 157 of the Labour Relations Act 66 of 1995 (LRA) provides for the jurisdiction of the LC as follows:

‘(1) Subject to the Constitution and section 173, and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the Labour Court.

(2) The Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution of the Republic of South Africa,1996, and arising from –

(a) employment and from labour relations.’ In considering the above, s 157(1) of the LRA provides that the LC has exclusive jurisdiction over matters that are specifically conferred to it in terms of the LRA or any other legislation. In the case of Gcaba v Minister for Safety and Security and Others 2010 (1) SA 238 (CC) at para 70, the Constitutional Court (CC) interpreted s 157(1) as follows:

‘Section 157(1) confirms that the Labour Court has exclusive jurisdiction over any matter that the LRA prescribes should be determined by it. That includes, amongst other things, reviews of the decisions of the CCMA under section 145.’

From the above, Vodacom could not rely on s 157(1) as it does not empower the LC to adjudicate such matters. Section 157(1) strictly empowers the LC to hear matters that are explicitly assigned within its exclusive jurisdiction in terms of legislation.

On the other hand, s 157(2)(a) bestows on the LC concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in ch 2 of the Constitution, which arises from employment and labour relations. Accordingly, for a proper interpretation of the above, the highlighted portions ought to be considered further.

Concurrent jurisdiction

In the ordinary course, the concept of concurrent jurisdiction can be defined as follows:

‘Overlapping jurisdiction; jurisdiction exercised by more than one court at the same time over the same subject matter and within the same territory, the litigant having the initial discretion of choosing the court that will adjudicate the matter’ (see Bryan A Garner A dictionary of modern legal usage 2ed (Oxford University Press 2011)).

Insofar as the LC is concerned, the above interpretation cannot coexist with the clearly intended objectives of the LRA. In this regard, the above interpretation culminates in a position whereby an applicant would ‘forum shop’ for a court to adjudicate a matter. In the case of Chirwa v Transnet Ltd and Others 2008 (4) SA 367 (CC) at para 124 the CC made the following observation:

‘It could not have been the intention of the legislature to allow an employee to raise what is essentially a labour dispute under the LRA as a constitutional issue under the provisions of s 157(2). To hold otherwise would frustrate the primary objects of the LRA and permit an astute litigant to bypass the dispute resolution provisions of the LRA. This would inevitably give rise to forum shopping simply because it is convenient to do so or as the applicant alleges, convenient in this case “for practical considerations”.’

Considering the above, it is then appropriate to ascertain the proper context in terms of which the term ‘concurrent jurisdiction’ ought to be construed considering the objectives of the LRA. In determining the objective purpose of particular words in legislation, the case of Secretary for Inland Revenue v Brey 1980 (1) SA 472 (A) at 478 provides guidance as follows:

‘[T]he meaning of particular words is to be found not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which they are used and the object that is intended to be attained.’

Accordingly, the objective meaning of the above phrase may not lie in its popular everyday use. In the case of Manyathi v MEC for Transport, KwaZulu-Natal, and Another 2002 (2) SA 262 (N) the court found that the word concurrent jurisdiction in s 157(2) must be construed to mean ‘jurisdiction equivalent with’ and that for matters falling within paras (a), (b) and (c) of s 157(2), the LC has exclusive jurisdiction, and the jurisdiction of the High Court is excluded.

I submit that the above interpretation is correct. This position was further confirmed in the case of Jones and Another v Telkom SA Ltd and Others [2006] 5 BLLR 513 (T) where the court found that s 157(2) does not confer jurisdiction on the High Court that it does not otherwise have. It confers jurisdiction on the LC, which it would not otherwise have had.

Alleged or threatened violation of a fundamental right

Although the LRA is primarily concerned with giving effect to s 23 of the Constitution, s 157(2) seems to extend the jurisdiction of the LC to that of equal status to the High Court, provided the dispute arises out of employment and labour relations.

Put differently, the LC is endowed with the status of the High Court where alleged or threatened violation of a fundamental right is as a result of labour relations. This would follow where, for example, an employee’s right to dignity is threatened in the workplace. The LC would have the same powers as the High Court in adjudicating such a matter.

Employment and labour relations

According to s 157(2)(a), the LC will have concurrent jurisdiction with the High Court provided that the matter arises from employment and labour relations. Section 213 of the LRA defines ‘employee’ as follows:

‘(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and

(b) any other person who in any manner assists in carrying on or conducting the business of an employer, and “employed” and “employment” have meanings corresponding to that of “employee”.’

In interpreting the term ‘employment’, the case of Vodacom the LC found at para 23 as follows:

‘However, the section [s 157(2)(a)] does not specify that the parties to the litigation must be in an employment relationship. If the legislature wanted to restrict the interpretation solely to disputes concerning infringement of fundamental rights arising between employers and their employees, it would surely have stated this explicitly, rather than using a phrase which essentially describes a context from which the alleged infringement arises.’

It is my view that the court erred in the above interpretation. Had the court had regard to the definition of ‘employee’ as set out in s 213 of the LRA, it would have been clear that the term should be construed to mean that an employment relationship must exist.

The LRA does not define the concept of labour relations, however, in my view, it encompasses all such matters that arise as a consequence of the establishment of an employment relationship. In the Vodacom matter, the judge further makes a finding that employment and labour relations ought to be read conjunctively. In this regard, the court makes the following finding:

‘The union’s submission is that the terms “employment” and “labour relations” are distinct and both criteria must be met. In my view, proper interpretation of the phrase “employment and labour relations” is that it describes an entire sphere of relations embracing both issues of employment and labour relations.’

I am of the view that the judge erred in reaching this conclusion for the following reasons:

  • First, as referred to above, if regard is had to the term ‘employee’ and its definition as contained in s 213 of the LRA, it would have been clear that it ought to be read separately from the term ‘labour relations’.
  • Secondly, the use of the word ‘and’ clearly, in the context of interpretation, requires that the terms be read as two disjunctive requirements.

Accordingly, I am of the view that the matters focussed on above show that the conclusion of the court that a non-employer may approach the LC to seek relief is misplaced. One would have to watch case development in this regard, including whether the Union challenges this decision further.

 Sihle Mdludla LLB (UNIZULU) is a legal practitioner at Ndzabandzaba Attorneys in Johannesburg. Mr Mdludla acted on behalf of the first and second respondents in the matter.

This article was first published in De Rebus in 2019 (Oct) DR 16.