Classiclean (Pty) Ltd v Chemical Workers Industrical Union and Others (JA60/97) [1998] ZALAC 20 (10 June 1998)

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[1998] ZALAC 20
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Classiclean (Pty) Ltd v Chemical Workers Industrical Union and Others (JA60/97) [1998] ZALAC 20; [1999] 4 BLLR 291 (LAC) (10 June 1998)

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case no: JA 60/97
In the matter
between:
CLASSICLEAN (PTY)
LTD Appellant
and
CHEMICAL WORKERS
INDUSTRIAL UNION Respondents
AND OTHERS
JUDGMENT
FRONEMAN DJP.
[1] The second to sixth respondents (“the
individual employees”), all members of the first respondent (“the
trade union”)
and employees of Classiclean (Pty) Ltd (“the
employer”), were dismissed on 1 December 1995 for refusing to work
overtime. After
their dismissal they followed the normal statutory
route, ending up in the industrial court where they obtained a
reinstatement order
in their favour, as well as compensation
equivalent to the wages they would have earned for twelve months.
The employer seeks to
have these orders overturned on appeal, but has
run into some procedural difficulties, all of its own making.
[2] The employer was
required to file a power of attorney within 10 days of filing the
notice of appeal. It has not done so. The
record of appeal had to
be filed within 60 days of the date of the filing of the notice of
appeal, being 8 July 1997. It was only
served on respondents’
attorney on 6 November 1997. The employer’s attention was drawn to
these deficiencies by the respondents’
attorney in, respectively, a
letter dated 20 November 1997 addressed to the employer’s
attorneys, and in the respondents’ attorney’s
heads of argument
filed on 30 March 1998. No application for condonation was brought
prior to the hearing of the appeal on 9 June
1998.
[3] When the matter was
called yesterday senior counsel who appeared for the employer handed
up a statement headed “Aansoek om kondonasie”
which was
apparently signed by an official of the employer. The statement was
not on oath, nor was there a notice of motion asking
for condonation
accompanying it. Counsel could not suggest any legal basis for us
having any regard to this statement, nor am I
aware of such a basis.
Faced with this difficulty counsel asked for the postponement of the
matter in order to bring a proper application
for condonation. He
suggested that there was no real prejudice to the individual
respondents which could not be cured by an appropriate
costs order
and, possibly, a compensation order at the appeal hearing at a later
stage. This ignores the fact that the individual
respondents would
then have the reinstatement order in their favour frustrated even
longer than has been the case until now. It
also ignores the other
requirement for a successful application for a postponement, viz a
reasonable or acceptable explanation for
the failure to have dealt
with the problem necessitating a postponement at an earlier stage.
No such explanation was forthcoming.
The application for
postponement was refused.
[4] In terms of rule
5(17) of the rules of this court, the appeal was deemed to have
lapsed on the failure to lodge the record within
the sixty day
period allowed for this. The rule itself provides for an
uncomplicated and inexpensive way to avoid this consequence
if the
record cannot be prepared in time, viz to approach the opposing side
within the sixty day for consent to an extension of time.
If this
fails, the Judge President may be approached, relatively informally,
for an order to that effect. None of this was done.
[5] There seems to be a
fairly widespread misconception amongst practitioners that the rules
of court are, somehow, unimportant and
that insistence on proper
compliance amounts to excessive formalism and is indicative of a
‘technical’ approach, whatever that
means. It is true that the
rules are for the court and not the other way around. What this
truly means is that a slavish adherence
to the rules without having
regard to their underlying purpose should be avoided. This does not
mean that their existence may simply
be ignored, only that in
appropriate cases where a proper explanation for non-compliance is
proferrred and the other requirements
for condonation are met, strict
adherence to the rules should not stand in the way of dealing with
the merits of a particular case.
Where there is no such explanation
the practitioner fails in his duty towards his or her client and he
or she must accept responsibility
for the consequences.
[6] In the recent past
this Court has had to deal with a depressing and monotonous number of
matters where the failure of practitioners
and the parties to adhere
to the rules has come to the fore. This is another one of them. In
my view the rules are drafted in simple,
understandable language.
They provide procedures such as those outlined in paragraph 4, to
deal simply and inexpensively with problems
such as those that arose
in this matter. Failure to adhere to them will be viewed with an
increasingly jaundiced eye in future.
[7] There is, in any event, no merit in the
employer’s proposed appeal. No evidence was produced in the
industrial court to substantiate
a contractual obligation to work
overtime by the individual employees, as is required by
s.
8(1)
of the
Basic Conditions of Employment Act, 3 of 1983
.
The fact that prior, to their dismissal, some of them worked
overtime is not a sufficient basis for concluding that they did so
in
fulfilment of a contractual obligation, especially in view of the
evidence that they did so voluntarily only when they needed
money.
Nor did the employer refute the respondents’ evidence that
agreement was reached between the employer and the trade union
that
no further disciplinary steps would be taken until the resolution of
the dispute relating to the retrenchment of certain employees
- the
original cause for dissatisfaction leading to the refusal to work
overtime. Dismissal in breach of that agreement by the employer
was
clearly unfair.
[8] There are no
grounds for the reinstatement of the appeal. The employer is ordered
to pay the respondents’ costs relating to
their opposition to the
appeal.
[9] Respondents also noted a cross-appeal,
directed against that part of the presiding officer’s
reasoning,
where he did not accept the respondents’ contention that there was
an agreement not to proceed with disciplinary proceedings until
the
outcome of the retrenchment dispute. The cross-appeal is
misconceived. Where a respondent supports the outcome or
determination
in the industrial court, albeit for different reasons
than set out in the judgment, no cross-appeal is necessary. It is
only where
the determination itself is challenged in whole or in part
that a cross-appeal is necessary.
[10] No costs order is
made in respect of the cross-appeal. The determination of the
industrial court is confirmed.
FRONEMAN DJP.
I agree
MYBURGH JP.
I agree
NICHOLSON JA.
Date of hearing: 9 June 1998.
Date of judgment: 10
June 1998.
Appearances
For the appellant: C.P Rabie S.C instructed
by Molenaar & Griffiths
For the
respondents: Mr. P Maserumule from Tshabalala Maserumule Attorneys
This judgment is also available on the Internet
at this website: http://www.law.wits.ac.za.labourcrt