TASWU obo Legodi & 3 Others v E.T Van Kerken N.O. and Others

On 31 August 2017, the applicant union (TASWU) referred a dispute to the South African Road Passenger Bargaining Council on behalf of unnamed 'members' alleging unfair dismissal based on operational requirements. The referral form was poorly completed, merely stating 'Respondent applied sec 189 without proper consultation with the other party' and 'More details will be heard in the arbitration process.' No names of affected employees were provided. The matter was set down for conciliation on 9 November 2017. On 10 November 2017, the panellist (first respondent) issued a ruling declining to entertain the matter on two grounds: (1) fairness considerations warranted refusal where the referral failed to identify individuals with an interest in the matter; and (2) the bargaining council lacked jurisdiction because the individual employees failed to appear in person as required by clause 9.1 of Appendix B to the bargaining council's constitution.

• Whether a bargaining council loses jurisdiction when individual employees fail to appear in person at conciliation proceedings in contravention of the bargaining council's constitution
• Whether a bargaining council may refuse to entertain a dispute on fairness grounds where a union fails to identify the individual employees it represents in the referral
• What minimum threshold of information must be contained in a referral to enable effective conciliation
• The application of section 200(1) of the LRA regarding a trade union's right to represent members without citing them as co-applicants

1. The first respondent's jurisdictional ruling issued under case number RPNT 4330 on 10 November 2017 is reviewed and set aside. 2. The matter is remitted to the first respondent to make an appropriate ruling having regard to the individual employees' failure to attend the conciliation meeting and the failure by the applicant to properly identify those of its members engaged in the dispute, and the unfairness on which it relies. 3. No order as to costs.

A bargaining council or CCMA does not lose jurisdiction over a dispute merely because parties fail to comply with procedural requirements such as personal appearance at conciliation hearings. Jurisdiction is determined by the nature of the dispute referred and whether it falls within the statutory mandate of the forum. However, while a trade union is entitled under section 200(1) of the LRA to represent its members without citing them as co-applicants, a referral must contain a minimum threshold of information to enable effective conciliation, including: (1) identification of the members represented with sufficient precision; (2) the nature of the dispute; (3) the facts and legal principles relied upon; and (4) the remedy sought. A failure to provide this minimum information may justify dismissal or striking off the referral on fairness grounds, as the dispute becomes incapable of conciliation and the respondent cannot properly prepare its case.

The court noted that the process before the panellist was analogous to a situation where a court is clothed with jurisdiction based on the nature of the claim, but the pleadings fail to disclose the material facts and legal conclusions on which the applicant relies. Van Niekerk J observed that while parties referring disputes to the CCMA or bargaining councils are not required to file pleadings as in court proceedings, the terms of a referral ought necessarily to reflect at least a record of the parties to the dispute, the nature of the dispute, the facts and legal conclusions relied on, and the remedy sought. The court also commented that the union's approach of expecting facts to emerge during arbitration was 'fundamentally subversive of the process of conciliation.' The judgment affirmed the Labour Appeal Court's observations in NUM v Hernic Exploration that it is best practice for a union to give the names of employees concerned so that the employer knows which employees are engaged in the proceedings.

This case clarifies important principles regarding jurisdiction and procedural fairness in labour dispute resolution forums in South Africa. It distinguishes between jurisdictional competence (based on the subject matter of the dispute) and procedural compliance (which may lead to dismissal but does not oust jurisdiction). The judgment provides guidance on the minimum information required in referrals to enable effective conciliation, balancing the section 200 right of unions to represent members with the requirements of procedural fairness to respondents. It establishes that while unions need not cite individual members as co-applicants, they must identify those members with sufficient precision for the dispute to be capable of conciliation and for the respondent to prepare its case.