IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT PRETORIA CASE NO: PSES 776-13/14 NAT In the matter between: SADTU Applicant and DEPARTMENT OF BASIC EDUCATION Respondent RULING ON POINTS IN LIMINE 1. DETAILS OF HEARING 1.1 The Applicant referred a dispute to the ELRC on the 20 th March 2014. It is alleged the dispute relates to a matter of mutual interest; 2. DETAILS OF HEARING AND REPRESENTATION 2.1 The dispute was scheduled for a conciliation process on the 17 th April 2014 at 14H00 at the Education Labour Relations Council on 261 West Street, Centurion. The Applicant was represented by a SADTU official, Mr M. J. Galorale. The Respondent was represented by Attorney Crafford. Also present were Messrs Kutumela and Gayer from the Respondent;
2.2 The Respondent raised certain preliminary issues and the parties agreed to the following: Page 2 1. The Respondent wishes to raise certain preliminary points and will do so in writing within 14 days, i.e., 5 th May 2014; 2. The Applicant may reply thereto within 14 days of receipt of the points in limine, i.e., by the 19 th May 2014; 3. The Respondent may reply thereto within 7 days, i.e., by the 26 th May 2014; 4. The matter to be rescheduled for argument. 3. RESPONDENT S SUBMISSIONS The Respondent submitted as follows: 3.1 The Respondent is the employer and the Applicant a trade union involved in an alleged dispute regarding the remuneration structure within the Respondent s workplace; 3.2 During on or about April 2013 the Applicant referred a dispute to the Education Labour Relations Council (under case number PSES 26-13/14 NAT), concerning an alleged disparity in the size of the increments between notches within the remuneration structure of the Respondent; 3.3 In this regard the Applicant alleged that its members were entitled to notches of 1,5% whilst the size of a notch was only 1%. Accordingly the Applicant demanded that the notch be increased to 1,5%;
3.4 The matter was conciliated and the nature of the dispute argued extensively between the parties. Consequently a ruling was issued by panellist Brian Currin N.O. that the dispute between the parties was one of Page 3 right and had to be arbitrated; 3.5 On the date of the arbitration of the first dispute Applicant applied for a postponement on the premise that no referral to arbitration had been made by Applicant and that the representatives of Applicant were due to appear before the remuneration commission established by the President. The dispute has not been set down after that point and has not as yet been arbitrated. It is accordingly still pending; 3.6 Subsequently and on 20 March 2014 a new referral form was served on the Respondent by the Applicant. The basis of this referral was once again a demand that the increments between the notches in the Respondent s remuneration structure be increased from 1% to 1.5%; 3.7 Applicant is clearly of the view that they can rectify and/or circumvent the process and ruling made in respect of the first referral by referring afresh the dispute which was not resolved to their satisfaction in the first instance; 3.8 In the referral form itself it is acknowledged that the dispute referred during March 2014 is part and parcel of a current and existing facilitation process between the parties. As has been submitted herein above the dispute is also the subject of the first referral by the Applicant which has not yet been arbitrated; 3.9 Insofar as the subject matter of both referrals and the dispute between the parties pertains to a demand by the Applicant for an additional 0.5% increase in the pay progression of educators (and/or the same increase in the size of the notches between the different salary levels of educators) the disputes, it is submitted, remains the same;
3.10 At present there is no legislative mechanism in the Labour Relations Act and/or rule within the ELRC which prevents the referral of the same Page 4 dispute twice prior to the first dispute being finally decided on. The common law does however provide recourse insofar is the current circumstances are concerned; 3.11 In this regard the res judicata legal principle applies once a final decision is made on a dispute or claim and directs that the same dispute and/or claim cannot be made by a litigant thereafter; 3.12 Similarly and before a dispute and/or claim is finally decided on and whilst the dispute is sub judice the principle of lis alibi pendens assists a litigant to prevent two tribunals and/or courts adjudicating on the same matter; 3.13 The lis alibi pendens principle was articulated by the Supreme Court of Appeal in the matter of Nestlé (SA) (Pty) Ltd v Mars Inc 2001 (4) SA 542 (SCA) as follows: The defence of lis alibi pendens shares features in common with the defence of res judicata because they have a common underlying principle which is that there should be finality in litigation. Once a suit has been commenced before a tribunal that is competent to adjudicate upon it the suit must generally be brought to its conclusion before that tribunal and should not be replicated (lis alibi pendens). By the same token the suit will not be permitted to be revived once it has been brought to its proper conclusion (res judicata). The same suit, between the same parties, should be brought only once and finally. 3.14 The above finding by the Supreme Court of Appeal has been approved by the Labour Court and is consistent with the underlying spirit and principles of the Labour Relations Act, which is the effective resolution of labour disputes;
3.15 In Socratous v Grindstone Investments 2011 (6) SA 325 (SCA), the Supreme Court of Appeal reaffirmed the principles referred to in the above Page 5 and went on to refer with approval to the following passage by Voet 44.2.7 (Gane s translation) vol 6 at 560: Exception of lis pendens also requires same persons, thing and cause. The exception that a suit is already pending is quite akin to the exception of res judicata, inasmuch as, when a suit is pending before another judge, this exception is granted just so often as, and in all those cases in which, after a suit has been ended there is room for the exception res judicata, in terms of what has already been said. Thus the suit must already have started to be mooted before another judge between the same persons, about the same matter and on the same cause, since the place where a judicial proceeding has once been taken up is also the place where it ought to be given its ending. 3.16 Similarly in Caesarstone Sdot-Yam Ltd v The World of Marble and Granite CC (2013) SCA 129 the court held that: As its name indicates, a plea of lis alibi pendens is based on the proposition that the dispute (lis) between the parties is being litigated elsewhere and therefore it is inappropriate for it to be litigated in the court in which the plea is raised. The policy underpinning it is that there should be a limit to the extent to which the same issue is litigated between the same parties and that it is desirable that there be finality in litigation. The courts are also concerned to avoid a situation where different courts pronounce on the same issue with the risk that they may reach differing conclusions. It is a plea that has been recognized by our courts for over 100 years. 3.17 Given that the first and second disputes involve the same parties, the same issues of fact, and the same cause of action, the special plea of lis alibi pendens must find application in the current instance;
3.18 It is submitted that it will not be in the interest of either party that different processes be run parallel to one another and might conceivably reach Page 6 different outcomes on the same dispute; 3.19 As a means to skirt the application of the exception or special plea of lis alibi pendens the Applicant has expressed an intention to withdraw its first dispute in favour of pursuing the second and current dispute. Respondent submits that doing so would not cure the fact that the second dispute is a duplication of the first and would attract the exception of lis alibi pendens; 3.20 In this regard it is submitted that it would be untenable in law for a litigant to be able to simply withdraw its dispute and re-refer the same dispute simply because it was not satisfied with the outcome of the first. A simple example would be that the CCMA makes a ruling that legal representation would not be allowed an applicant in a dispute. The chaos which would ensue if such Applicant would be allowed to withdraw the dispute and simply re-refer it and apply afresh for legal representation to be afforded him, can easily be seen. It is essential to our legal system that findings and/or rulings by courts and tribunals should be final and binding; 3.21 In Verhagen v Abramowitz 1960 (4) SA 942 (C) the court held that: When the matter has been referred to an arbitrator for a decision and an award has been given the situation is materially altered. Thus in Strutt v Chalmers and Another, 1959 (2) SA 536 (N), it was held that a party to an arbitration is not entitled to seek a decision of the Court on the very same matters already referred to arbitration, and when an award has in fact been made it has been held that such an award is equivalent to lis finita and as between the parties the matter is res judicata (Schoeman v Van Rensburg, 1942 TPD 175 at p 177).
3.22 Although the court in Verhagen was required to consider the finality of an award, it is submitted that the same principles should apply to a ruling properly issued by an arbitrator and/or conciliator in a dispute, as such a ruling is clearly intended to be binding on the parties. This would be the only tenable application of the law which would not lead to extreme legal Page 7 uncertainty; 3.23 It is submitted accordingly that the withdrawal of the first dispute would not automatically render the second and current referral competent and justiciable and it is respectfully submitted that the referral must be disallowed and/or dismissed for that reason; 3.24 In any event and should the Applicant legally be able to discard the initial ruling by withdrawing the first dispute (which is denied), it has not done so to date. In the circumstances the current dispute remains subject to the principle of lis alibi pendens and should be dismissed for that reason; 3.25 In addition to the submissions highlighted herein above the Respondent contends that the second and current dispute should in any event be regarded as premature as the parties are not yet in dispute regarding the alleged demand which has been recorded in the second referral form. This is evident from the fact that the Applicant has itself noted in its referral form that the parties are engaged in a facilitation process concerning the exact same subject matter and facts that form the subject matter of the current referral. Insofar as the parties have not as yet completed the facilitation process, the parties are not as yet deadlocked and remain involved in discussions regarding these issues; 3.26 In would be in direct contrast to the spirit and purport of the Labour Relations Act for the parties own informal attempts at resolving the potential dispute between them to be abruptly and prematurely terminated through a referral to a dispute tribunal; 4. APPLICANT S SUBMISSIONS
The Applicant submitted as follows: 4.1 During April 2013 the Applicant referred a dispute to the Education Labour Page 8 Relations Council (under case number PSES 26-13/14 NAT); 4.2 The dispute was conciliated by Mr. Brian Currin, a panelist of the ELRC. As part of the conciliation Mr. Currin issued a ruling classifying the dispute as one of right, which had to be arbitrated; 4.3 The matter was automatically set down for arbitration before Adv. P van Tonder. At the arbitration it was common cause that the Applicant had filed no arbitration referral and the arbitration therefore did not commence. It must be noted that at this point, the nature of the dispute was the interpretation / application of Collective Agreement 1 of 2012 of the PSCBC, a matter which the ELRC has no jurisdiction on, as the Collective Agreement is signed at the PSCBC; 4.4 Following its consultation with its lawyers, the Applicant decided to withdraw the dispute (under case number PSES 26-13/14 NAT) referred to the ELRC as it was advised that the ELRC would not have jurisdiction on this matter. This matter is no longer pending following its withdrawal. It would appear that the actual withdrawal of the dispute took long and was only done on the date of this second matter; 4.5 The ELRC sent out a letter confirming that the dispute, under case number PSES 26-13/14 NAT has been withdrawn and has been closed in the ELRC files. This means that this dispute cannot be reopened; 4.6 Following the decision to withdraw the initial referral, On 20 March 2014, the Applicant referred this matter to the ELRC, seeking to establish a new right, demanding a 0,5% notch increment within the remuneration structure of the Respondent;
4.7 It is common cause that this demand dates far back and that numerous meetings were held between the parties attempting to negotiate a resolution in this regard; Page 9 4.8 While the substance of the dispute might be similar, the categorisation of the dispute and the dispute path differs materially. The initial dispute was based on an existing right as per Resolution 1 of 2012 of the PSCBC, upon discovering that the said collective agreement did not expressly confer the right, the Applicant then sought to establish the right; 4.9 The Applicant submits further: 4.10 AD PAR 1-4 The contents of this paragraph are accepted; 4.11 AD PAR 5 The contents of this paragraph are noted. The Applicant disputes that the dispute is pending, as the dispute was withdrawn and the ELRC confirmed that it has closed the file; 4.12 AD PAR 6 The contents of this paragraph are noted; 4.13 AD PAR 7 The contents of this paragraph are denied. Following the ruling issued by Mr. B Currin, the matter was set down for arbitration wherein the Applicant clearly stated that the matter was about the interpretation / application of Resolution 1 of 2012 of the PSCBC and clearly the ELRC has no jurisdiction in this regard. Following legal advice, the Applicant also understood that the rights it is claiming under Resolution 1 of 2012 is not
clearly defined in the said agreement and consequently it chose to demand a new right. Even if the Respondent was correct in its argument, there is no legal basis to claim that the Applicant is bound by the first referral. The Applicant has filed no pleadings in this regard ad consequently the Applicant cannot be confined to an incorrect referral; Page 10 4.14 AD PAR 8 The contents of this paragraph are misleading. The facilitation was initiated by the ELRC and the Facilitator, Adv. Bono explained in the first sitting of the facilitation that this was an off the record process to attempt to resolve the matter and it was parallel to the ELRC formal processes. The parties are not bound by the facilitation; 4.15 AD PAR 9 The contents of this paragraph are misleading. While the content of the two disputes might be similar, the ELRC has no jurisdiction on interpretation / application of a PSCBC resolution 1 of 2012. It is common cause that the ELRC has no resolution on the size of the notches between the different salary levels of educators the size of the notches between the different salary levels of educators. Consequently the ELRC can never have jurisdiction of this matter in the form that the dispute was initially referred; 4.16 AD PAR 10-11 The contents of this paragraph are noted. 4.17 AD PAR 12 The contents of this paragraph are misleading. The dispute is not before two forums. The first matter has been withdrawn and the ELRC has closed the file, so the file is as good as non-existent; 4.18 AD PAR 13-22
The contents of this paragraph are noted. The Applicant disputes that the principles of lis alibi pendens and res judicata are applicable on this matter. It is common cause that the first matter was not finalised, hence the Applicant could withdraw it. The Applicant cannot be forced with continue with a dispute it has withdrawn, more so a dispute that the ELRC has closed; Page 11 4.19 AD PAR 23 The contents of this paragraph are denied. The Applicant is dumbstruck by the Employer s schizophrenic conduct of wanting to dictate to the Applicant which dispute it must refer and which one it cannot refer, also which dispute the ELRC can entertain and which one it cannot. The Applicant is dominis litis, and in this regard has been advised that the right it sought to enforce under the first dispute was not expressly stated and that it might prove difficult to prove and therefore it was easier to rather seek to establish a new right; 4.20 AD PAR 24-25 The contents of this paragraph are denied. I have already dealt with this issue above. The Applicant has already explained the status of the facilitation. It is shocking that the Respondent would argue that there must be deadlock at the facilitation, a process initiated by the ELRC, and one which does not affect the formal processes of the ELRC dispute resolution mechanisms; 4.21 AD PAR 26 The contents of this paragraph are denied. The assertion of the Respondent in this regard is without any legal basis, and is an embarrassment; 4.22 The Applicant s case in this regard is very simple. It referred the first matter as a matter of mutual interest, Mr. B Currin ruled that the matter was an interpretation / application of a Collective Agreement. At the arbitration hearing the Applicant argued that the resolution in question in which it derived the right to be applied was embedded in Resolution 1 of 2012 of the PSCBC. The Applicant s lawyers advised the applicant that PSCBC Resolution 1 of 2012 did not clearly provide for the right. The
Applicant then withdrew the dispute and now sought to demand the right at the ELRC; 4.23 The Applicant submits that the Respondent s point in limine be dismissed. Page 12 5. RESPONDENT S REPLY 5.1 The Applicant argues that the current dispute is different from the first dispute as in the newest dispute the Applicant seeks to establish a right which it previously believed its members had to 1.5% notch increments; 5.2 This right, the Applicant avers, it believed it had in terms of PSCBC Resolution 1 of 2012. The Applicant does not however assert which part of the resolution the alleged right may have originated from; 5.3 It is submitted in this regard that the current or newest dispute is no different from the first. The arguments raised in the Respondents Heads of Argument are repeated herein insofar as this argument is concerned and it is once again submitted that the Applicants current dispute is not competent for all of the reasons previously stated; 5.4 Further to the above, PSCBC Resolution 1 of 2012 is a multi-term salary agreement which settles salary increases and other conditions of service within the industry until March 2015. Negotiations between the parties in respect of a new multi-term agreement will commence shortly within the industry; 5.5 Insofar as the Applicant now alleges that it is seeking to establish a right which derives from PSCBC Resolution 1 of 2012, the Applicant is bound by the provisions of PSCBC Resolution 1 of 2012 and a mutual interest dispute and/or the issuing of a certificate of outcome referring the dispute to strike/ lock-out is therefore not competent until the expiry of the multiterm agreement;
5.6 This is of course so in terms of the provisions of Section 64 of 65 of the Labour Relations Act which prevents industrial action and disputes Insofar as the Applicants in any event allege that the previous dispute should properly have been brought in the PSCBC, the same argument holds true for the current dispute, which as the argument now goes relates to Page 13 obtaining a right to a 0.5% increase in the size between notches; 5.7 If it is alleged that this dispute relates to terms and conditions of employment, same dispute is regulated by a PSCBC collective agreement which is currently still valid and binding. So also on this basis, the Applicants are not entitled to have a certificate of outcome issued. Whilst the Respondent is not in agreement that the first dispute, relating to an increase in the increments between notches and/or pay progression; 5.8 Accordingly and as per the Applicant s newest version of its dispute, the ELRC will respectfully still not have jurisdiction to entertain the dispute; 5.9 There was a ruling by Mr B Currin classifying the dispute as a rights dispute, which the matter had to be arbitrated. The Arbitration did not proceed due to the Applicants submission that it had not filed an arbitration referral; 5.10 The Applicant argues that it filed a withdrawal with the ELRC and therefore this matter is not pending with the ELRC. The Respondent disagrees with this contention and re-integrates that there was a finding that was issued with regard to this matter and that this finding is binding on both the parties. It can therefore not be that a party may withdraw a dispute and re-refer the same dispute; 5.11 The Respondent maintains that the first referral and the second referral relate to the same issue and the same demand by the Applicant. Considering the Applicants own admission that the ELRC did not have jurisdiction to deal with the first referral. The Respondent submits that the
ELRC does not have the jurisdiction to deal with the second referral and that such referral should be submitted to the PSCBC for consideration; 5.12 It is accordingly the Respondent's submission that the point in limine raised by it should be upheld; Page 14 6. ANALYSIS 6.1 The submissions made by the parties were carefully considered. It is evident that the first referral by the Applicant was based on the application and interpretation of Resolution 1 of 2012 of the PSCBC; 6.2 The above dispute has been withdrawn. The Applicant subsequently referred a dispute relating to a matter of mutual interest. It is clear that the categorisation of the dispute is different and accordingly could not be stated to the same dispute as contended by the Respondent; 6.3 In relation to the Respondent s contention that the principles of lis alibi pendens and defence of res judicata are applicable cannot have application in the present matter as the first dispute has been withdrawn and accordingly it is not in another forum and there cannot be litigation pending; 6.4 I do not agree with Respondent s contention that the withdrawal of the first dispute and pursuing the second dispute is a duplication of the first dispute. The categorisation of the dispute in respect of different issues and the path of the dispute is different. The situation here is not analogous to the one the Respondent refers to in respect of legal representation in paragraph 20 of its submissions; 6.5 The Respondent s claim that the second referral is premature similarly does not support its claim that it is the same dispute as the first. The Respondent s claim also that the parties are involved in a facilitation process does not take the matter further as the disputes are categorised differently. The first dispute has been withdrawn and facilitation is a
voluntary process in the current context and does not affect the formal processes of the ELRC; 6.6 To argue that abandoning internal attempts in resolving potential disputes in resolving disputes through the referral is in direct contradiction to the Page 15 spirit and purport of the Labour Relations Act is not sustainable. The Act itself contains dispute resolution mechanisms; 6.7 The Respondent in its reply appears to raise a new issue that the second referral should be submitted to the PSCBC for consideration. This contention must fail as the crux of the Respondent s complaint is that the same dispute has been referred to as the previous. However the current dispute is one relating to a matter of mutual interest and this does not oust the jurisdiction of the ELRC; 6.8 Having regard to the above the Respondent s point in limine is dismissed; 6.9 Section 135(5) provides that when conciliation has failed or the 30 day period has expired the Commissioner must issue a certificate. The referral was made on the 27 th March 2014. The 30 day period has expired and accordingly it is competent to issue a certificate of non-resolution. DATED AT JOHANNESBURG ON THIS THE _25 TH DAY OF SEPTEMBER 2014. YUSUF NAGDEE ARBITRATOR