It is submitted that the labour court correctly refused to allow the trade union to consolidate cases concerning alleged unfair process and substance.  In about 2002 trade unions demanded the right to strike over dismissals based on operational requirements.  In other words to convert them from disputes of ‘right’ to ‘interest’.  There was a compromise at Nedlac and the LRA was amended.  In particular power-play would not be allowed for smaller enterprises.  In addition procedural issues would be separated from substantive issues.  Procedural issues had to be dealt with quickly and conciliation had to be bypassed.  Motion proceedings had to used.  This allowed the labour court to play a pro-active supervisory role at an early stage during the statutory joint consensus-seeking process.

Saccawu v Southern Sun Hotel interests ((Pty) Ltd (JS1162/14, J2361/14) [2016] ZALCJHB 235 (3 July 2016) per Whitcher J.

LC summary:

Section 189A of LRA – Consolidation of an application made in terms of section 189A(13) and a referral in terms of section 191(5)(b)(ii) of the LRA, as contemplated in section 189A(10).

Excerpts without footnotes

[1]     This case concerns an opposed interlocutory application under Labour Court Rule 23 for an order consolidating an application brought in terms of section 189A(13) of the LRA about the procedural fairness of the dismissal of the Second to Further Applicants from the Respondent and a referral about the substantive fairness of the dismissal referred in terms of section 191(5)(b)(ii) of the LRA, as contemplated in section 189(10) of the LRA or an order directing that the dispute concerning the procedural fairness of the dismissals be dealt with by way of oral evidence at the trial of the dispute concerning the substantive fairness of the dismissals.

[2]     Labour Court Rule 23 provides that consolidation of matters may take place if it is expedient and just to do so.  In Piner v SA Breweries Ltd(2002) 23 ILJ 1446 (LC) it was held that consolidation must be equitable to all the parties and in this regard the Court must not only consider whether the balance of convenience favours the consolidation, but also be satisfied that the consolidation will not prejudice a party.  The prejudice must be substantial.  In determining whether the prejudice is substantial, one of the issues that must be considered is whether the relief sought in each of the separate actions that are sought to be consolidated, depends on the determination of substantially the same questions of law and fact or not.  Both parties agreed that this rule has to be considered in the context of section 189A of the LRA.

. . . . .

[9]       The purpose of section 189A was summed up by van Niekerk J in NUMSA v General Motors of SA (Pty) Ltd matter as follows:

“This subsection (section 189A(13)) in effect requires this court to determine disputes about the procedural fairness of larger scale retrenchments within a defined time-frame in motion proceedings, at least where there is no dispute of fact.  The court has previously observed that to the extent that this bifurcation may have been motivated by the notion that procedural defects lent themselves to quick and assessable legal proceedings, in practice, a separation of substance and process is often less easily achieved… Murphy AJ (as he then was) summarised the broad policy considerations underlying section 189A(13) at para 9:

 ‘According to the explanatory memorandum accompanying the 2002 amendments to the LRA, since section 189A was aimed at enhancing the effectiveness of consultations in large scale retrenchments.  It allows for a facilitator to be appointed to put back on track at the earliest possible moment a retrenchment process that falls off the rails procedurally.  The overriding consideration under section 189A is to correct and prevent procedurally unfair retrenchments as soon as procedural flaws are detected, so that job losses can be avoided.  Correcting a procedurally flawed mass retrenchment long after the process has been completed is often economically prohibitive and practically impossible… so, the key elements of section 189A are: early expedited, effective intervention and job retention in mass dismissals.’

The role of this court is therefore to exercise a pro-active and supervisory role in relation to the procedural obligations that attach to operational requirements dismissals.”

[10]  In their application, the Applicants submitted that it would be expedient and just to consolidate the two cases because the substantive fairness of the dismissals is intricately linked to the procedural fairness of the dismissals.  Should the procedural fairness application be dealt with through oral evidence at the hearing of the trial on substantive fairness, the court will be in a better position to assess the averments relating to both the substantive and procedural unfairness of the dismissals.

. . . . .

[17]  However, it became clear during argument that what the Applicants seek is what they initially argued for in their application (pleading), which is really to inter-link the substantive and procedural fairness of the dismissals and to have the right to cross examine on both matters for this purpose.  I will, however, address the amended argument as well.

[18]   With that as a backdrop, I set out as succinctly as possible what I understand section 189A(18) of the LRA to mean as a matter of plain English and in the context of the structure of the statute.  This is that, in retrenchments that fall within the ambit of section 189A, inquiries into the procedural and substantive fairness of a dismissal are to be dealt with separately.  Trial procedures, which are to be used to determine the substantive fairness of a section 189A dismissal, are not to be burdened with claims about the procedural fairness of the same dismissal.

[19]   Read together with section 189A(13), it would appear that, in permitting employees to elect to seek the early, expedited and effective intervention of the Labour Court in procedural obligations that attach to section 189A dismissals, the legislature has seen fit to exclude employees from coupling these procedural claims with claims of substantive unfairness.  The LRA provides for the adjudication of procedural claims by way of motion proceedings and claims of substantive unfairness by way of a separate trial.

[20]   To my mind, consolidating unfair dismissal claims raised separately in respect of procedural and substantive unfairness, on the face of it, goes against the grain of section 189A as a whole and against the plain wording of section 189A(18) in particular.  Try as I might, I cannot read section 189A(18) as permitting the distinction the Applicants wish me to make between the (impermissible) raising of procedural issues “in” a section 191 (5)(b)(ii) referral and the (permissible) raising of procedural issues if they occur “at the same time” as the section 191 (5)(b)(ii) referral.   The notion that a procedural claim aired “at the same time” as a claim brought under a provision of the LRA set aside for adjudicating substantive issues is not also aired “in” that substantive trial is logically and semantically unsupportable.

. . . . . .

[23]  Perhaps recognising that a straightforward reading of section 189A(18) of the LRA does not support the distinction between procedural claims raised in as opposed to claims raised at the same time as substantive unfairness in a section 191(5)(b)(ii) referral, the Applicant urges me to stretch the plain meaning of section 189A(18).

[24]   For me to strain the meaning of section 189A(18) so that it permits procedural unfairness claims to be considered on referral as long as these are raised, (according to the Applicants’ interpretation), at the same time as claims concerning substantive fairness, I would need to be convinced that significant and unwarranted intrusions occur upon the constitutional rights of a party when reading section 189A(18) in the standard way.

[25]   I am not persuaded that damaging inroads are made into the individual Applicants’ rights under section 34 of the Constitution should I interpret section 189A(18) in accordance with its plain meaning.  A party with procedural complaints still has access to a fair public hearing of their complaint.  Section 189A(13) read together with section 189A(18) simply provides that this must be done on motion and not a referral.

[26]   It is not apparent to me either that the constitutional right to fair labour practices is meaningfully intruded upon by a provision of the LRA directing that claims of procedural unfairness be adjudicated separately from claims of substantive unfairness.  The LRA provides remedies for procedural unfairness in a section 189A dispute, and the particular remedy the Applicants seek in this case, compensation, may be attained utilising the application mechanism the LRA has set aside in cases of procedural unfairness[1].

[27]   I add that this court is being asked to expand upon the plain meaning of a section of no ordinary statute but one whose provisions are first negotiated in a tri-partite structure, Nedlac, in which organised labour, business and government all have input before the law is promulgated.  If I am to impose a reading on section 189A(18) that differs from its most obvious meaning, it is not only parliament who did not fully secure the Applicants’ constitutional rights in the words they chose, but also the parties to Nedlac too.

[28]   The Applicant is correct to point out that the LRA should also be interpreted in line with its purpose.  In this regard I take heed of the values of economic development and the effective resolution of disputes.  If the legislature (acting on the recommendations of Nedlac) has providing a method of adjudicating claims of procedural unfairness in mass retrenchments that is relatively quick and easy, but at the cost of separating these more easily determined claims from the determination of the harder substantive issues, tampering with this arrangement is not to be lightly done.  I can quite readily see how the present separation of suits enhances the speedy resolution of labour disputes and thus also, quite possibly, aids economic development.

[29]   To the extent that the court has permitted consolidations of this nature previously, I respectfully differ with those approaches.  I do so having had the benefit of the incisive arguments of both counsel before me who have each provided valuable insights into this specific jurisdictional question and thus placed me in a position, I hope, to make an informed finding.

[30]   I thus find that consolidation or any other co-hearing of the procedural issues raised in the Applicants’ section 189A(13) together with the Applicants’ section 191 (5)(b)(ii) referral is impermissible in terms of the LRA

[31]   While consolidation of connected claims is provided for in the Labour Court rules, where a statute prevents consolidation, it is unnecessary to even decide whether the conditions under the rules for consolidation apply or not.  This court would lack the jurisdiction to order consolidation even if it were to be convenient to do so and accord no meaningful prejudice to the respondent.

[32]   I do not deem it appropriate to award costs considering the subject matter of this case.