Judge Anton Steenkamp said he might not be able to deal with the matter as a lockout was referred to the Commission for Conciliation, Mediation and Arbitration (CCMA), not the dismissal in question.
He said he could not hear a matter over which he had no jurisdiction.
“I cannot wish it away, much as I would like to get into the meat and merits of the matter,” he said.
“This preliminary point does come as a surprise. I am going to have to consider it. I will only be giving a ruling tomorrow [Tuesday] morning.”
According to the Labour Relations Act (LRA), a dispute must first be referred to the CCMA before the Labour Court can hear it.
Earlier, on the first day of the trial, lawyers for the workers and their Robertson employer, Steytler Boerdery, presented their opening arguments.
It emerged that there was a dispute over the dismissal date.
Yvette Isaacs, for the workers, conceded in argument that workers were not dismissed, but locked out, on January 8 last year, when they referred the matter to the CCMA.
It was also conceded that when workers were finally dismissed on January 21 the same year, the matter was not referred to the CCMA. However, Isaacs argued that it formed one chain of events.
The applicants are Daniel Sambo, Jacques Jaftha, Andries Ambrose, Dawid Jooste, Salmon Swarts, Daniel Jonas, Linda Afrika, Adean Bruntjies, Christian Paulsen, and Esmeralda and Donovan Grootboom.
They are being represented by the Commercial Stevedoring Agricultural and Allied Workers Union (CSAAWU), listed as the 12th respondent.
Farming towns across the province came to a standstill during a workers’ protest against poor wages and harsh living conditions towards the end of 2012 and the start of 2013.
Michael Crowe SC, for Steytler, said workers were dismissed at a hearing on January 21 after they ignored two ultimatums to return to work and cease strike action immediately.
He said the strike fell within the first year of a sectoral wage determination, and within a period when Labour Minister Mildred Oliphant announced her intention to increase the minimum wage.
“Not only was it an unprotected strike, it was a prohibited strike,” Crowe said.
“The minister had gone to great lengths to urgently intervene in the matter… but these particular applicants were not impressed by that and persisted with their demands in term of unlawful, unprotected strike action.”
He said his client had suffered great financial prejudice as a result of the labour action.
On the matter of costs, he said the applicants should be jointly and separately liable.
Isaacs said the absence of the 11 workers from the farm was justified in light of the national strike and that their conduct did not justify a dismissal. She conceded that the strike was unprotected in terms of the LRA.
However, she said workers had not returned to work after January 8 because they had been under the impression that they had been dismissed.
She also alleged that one of the conditions of the ultimatum had been for workers to cancel their union membership.
She argued that workers had to endure “utter hardship” to survive every month and that each party should pay its own costs.
Outside court, around 30 other farmworkers sang protest songs. Three small children held up cardboard signs with Afrikaans slogans stating “Stop slavery on farms” and “Our kids stay hungry”.
Speaking on the sidelines, instructing attorney Ray Brink said the case was unprecedented because it dealt with a strike managed by farmworkers, not unions.
He said the LRA envisaged strike procedures for unions to carry out, not individuals, and thus the strike was naturally unprotected.
However, he said the court had to consider that farmworkers had a measure of protection as unions and the labour department intervened, and sat around the table as part of wage negotiations.