Toyota SA Marketing v Shmeizer (DA12/2001) [2002] ZALAC 22 (4 October 2002)

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[2002] ZALAC 22
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Toyota SA Marketing v Shmeizer (DA12/2001) [2002] ZALAC 22; [2002] 12 BLLR 1164 (LAC) (4 October 2002)

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT DURBAN
Case No: DA 12/2001
In
the matter between:
TOYOTA
SA MARKETING
Appellant
And
ZELDA
SHMEIZER
Respondent
____________________________________________________________________
JUDGMENT
Van
Dijkhorst, AJA:
The respondent, who describes herself as a
styling manager, approached the Labour Court in Durban for an order
against her employer,
the appellant, declaring that the appellant’s
conduct in refusing to bring the respondent’s remuneration in line
with that
of other managers in her grade amounts to unfair
discrimination on the grounds of sex in terms of
section 6
of the
Employment Equity Act 55 of 1998
and that the appellant’s act of
unilaterally removing the respondent’s manager title amounts to
unfair conduct in terms of
section 2(1)(b)
of Schedule 7 to the
Labour Relations Act 66 of 1995
. She further sought an order that
the appellant be directed to remunerate her as a styling manager
with full retrospective effect.
Her statement of case was filed on 12 October
2000. The appellant did not respond timeously. Its response to
the respondent’s
statement of case was filed some 59 days later.
The appellant sought condonation for the lateness of it’s
response. This application
was strenuously opposed. The Labour
Court refused condonation. This is an appeal against that refusal.
The facts set out by Mr E J van Rensburg, the
appellant’s industrial relations manager, in the founding
affidavit in support of
the application for condonation are as
follows:
The respondent’s statement of case was
allegedly telefaxed on 11 October 2000 to the appellant’s human
resource manager on telefax
number 9121553. That fax number is,
however, that of the finance manager and the papers did not come to
the notice of the human
resource manager. Only on 4 December 2000
did the human resource manager, Mr Eddie Smit, receive a notice of
set down from the Labour
Court dated 15 November 2000 indicating that
the matter had been set down for hearing on the unopposed roll of 6
February 2001.
That was the first indication the appellant had of
these proceedings. The appellant’s attorneys were instructed and a
copy of
the application was uplifted from the Court file on 8
December 2000.
Steps were taken to ascertain whether the
appellant had received the application as alleged. The secretary in
the finance department
had no recollection of receiving the
application. Only after the respondent’s attorneys had uplifted a
copy of the pleadings
from the Court file did a brown envelope which
contained a copy of the pleadings find its way to the deponent’s
office. The
envelope had been sent to the appellant by registered
post. There was no record of when the envelope had actually been
received
by the appellant.
It is surmised that because the document was
addressed to Toyota (South Africa) Marketing this created confusion
amongst the appellant’s
employees. The marketing division of the
appellant operates from Johannesburg and any document addressed to
Toyota Marketing is
forwarded to Johannesburg. This would cause
extensive delay before it becomes apparent that the document should
have been addressed
to the deponent himself.
The appellant’s offices closed on 15
December 2000 for the annual holiday and employees only returned to
work on 9 and 10 January
2001. Only once the appellant had reopened
in 2001 could proper instructions be taken in regard to the
allegations raised by
the respondent. On 20 December 2000 the
appellant’s attorneys had given notice of the appellant’s
intention of opposing the
application and the application for
condonation was served on 22 January 2001 together with the
response, some 59 days late.
The deponent submits that the delay is not
excessive given the circumstances and complexity of the matter and
sets out facts in
support of his statement that the appellant has
good prospects of success on the merits of the case. He further
submits that the
respondent did not suffer any prejudice as a result
of the delay because she is currently employed and is receiving
monthly income
and, should she be successful, her salary can be
retrospectively adjusted. The deponent states that the respondent
herself is
partially to blame in creating confusion which ensued
with the service of the statement of case. She is aware that the
deponent
handles all employee disputes, yet the documents were
addressed to Toyota Marketing, which is situated in Johannesburg
whereas
the appellant’s business where the deponent and the
respondent are employed is at Isipingo Beach.
The respondent in her answering affidavit to
the application for condonation denies the allegations about the fax
number and attaches
proof of delivery from the Prospecton Post
Office which indicates that the brown envelope referred to by the
deponent was uplifted
by the appellant on 17 October 2000 and that
it is apparent from the postage slip attached to the affidavit of
service that the
envelope was marked for the attention of the human
resource manager at the appellant in Durban. She states that there
is no reason
why the correct person should not have had the
statement of case by no later than 31 October 2000. She makes the
unsubstantiated
allegation that she is severely prejudiced by the
delay.
Whatever the position may be, the undisputed
facts are that the responsible functionaries within the appellant
only became aware
of the respondent’s application to the Labour
Court on 4 December 2000, probably due to the negligence of someone
or other in
the appellant’s organization.
In the Labour Court Ngcamu AJ held that the
period of seven weekdays between 8 and 15 December 2000, that is
after the papers had
been uplifted by the attorneys, and the period
between 10 and 22 January 2001, that is the period after the
appellant had reopened,
had been left unexplained. There was also
no information on whether the human resource manager of the
appellant had gone on leave.
The Court was therefore dissatisfied
with the explanation for the delay. Ngcamu AJ also held that no
prospects of success had
been shown as the appellant’s explanation
in its response to the statement of claim that the respondent fell
within a certain
band of employees or managers and was therefore
paid a lesser salary, was no answer at all. The learned Judge
also rejected
the argument that there was no prejudice on the part
of the respondent because she was in employment. He held that it is
important
for the Court to have this matter sorted out immediately
and speedily and if it was sorted out earlier, even before coming to
Court,
the respondent would have got more salary.
The learned Judge’s last two findings can be
disposed of immediately.. Any loss of salary can be remedied
retrospectively as
stated by the appellant. On appeal the
appellant's counsel gave the following undertaking on its behalf:
"In addition to
any other powers vested in the trial Court, the
company (appellant) will give effect to any award in relation to
retrospectivity
from 6 February 2001 to date of judgment of the
Labour Appeal Court." This puts paid to an argument of
prejudice caused by
this application and the appeal arising
therefrom.
There was no particular sense of urgency
about this matter. The learned Judge’s conclusion that the
appellant had not shown
any prospects of success was based on his
understanding that the appellant’s defence to the respondent’s
claim was simply that
the respondent fell within a certain band of
managers. That was not the appellant’s complete defence as
disclosed. The claim was
based on the allegation that she and certain
male managers were doing work of equal value but that she was paid a
lower salary than
they were because she was a woman. In its response
the appellant denied this and referred to its use of the Peromnes
Broad Band system.
If the denial was proved to be well founded, that
would be a complete defence. Accordingly the learned Judge erred in
concluding
that no prospects of success had been shown.
Counsel differed as to the test to be applied
by this Court in this appeal against what was referred to as the
exercise by the Labour
Court of its discretion to condone the late
filing of the appellant's response to the statement of claim. With
reference to the
judgments in Ex parte Neethling and Others
1951 4
SA 331
(A); Tjospomie Boerdery (Pty) Ltd v Drakensberg Botteliers
(Pty) Ltd and another
1989 4 SA 31
(T) and Bookworks (Pty) Ltd v
Greater Johannesburg Transitional Metropolitan Council and another
1999 4 SA 799
(W) and the principles therein set out counsel for the
appellant contended that the appeal should be a full rehearing,
whereas
counsel for the respondent submitted that our powers were
curtailed by the fact that it was a discretion that was at issue.
The principles expounded by the Full Bench in
the Tjospomie and Bookworks judgments in respect of the approach in
the civil Courts
on appeal against the exercise of a discretion by a
lower Court can be summarized as follows as far as here relevant:
The test to be applied depends on the
nature of the discretion appealed against. A "narrow"
discretion (incorrectly
so named as the discretion of the trial Court
is not limited but the power of the Court of appeal to interfere is)
exists where the
Court will on appeal only set the order aside if the
lower Court did not exercise its discretion judicially e.g. acted
capriciously,
or upon a wrong principle, was biased or did not act
for substantial reasons. This is more akin to a review than an
appeal. Examples
are where the trial Court is or is deemed to be in a
better position to adjudicate than the Court of appeal would be. This
may involve
a value judgment, like compensation or a costs order, or
the regulation of the proceedings (though the given examples of a
postponement
and amendment of pleadings may not be final judgments or
orders and thus not appealable).
As opposed to the
narrow discretion there is the ordinary discretion where the trial
Court is obliged to have regard to a number
of features in coming to
its conclusion. The Court of appeal which has all the relevant
information on record will in this case approach
the matter as a
normal appeal, i.e. a rehearing on the record, and having regard to
its own view of its merits substitute its own
decision for that of
the trial Court when it considers it more appropriate.
In terms of
section 158(1)(f)
of the
Labour
Relations Act 66 of 1995
the Labour Court “may subject to the
provisions of this act, condone the late filing of any document
with, or the late referral
of any dispute to, the Court.” In my
view the so-called discretion which the Labour Court has in terms of
section 158(1)(f)
to condone the late filing of any document is the
normal discretion, namely a power to act judicially in accordance
with the principles
of law and equity in a given set of
circumstances. The provisions of
section 167
of the Act constitute
the Labour Appeal Court as a superior Court with authority, inherent
powers and standing in relation to
matters within its jurisdiction
equal to that of the Supreme Court of Appeal.
Section 174
inter alia
empowers it to confirm, amend or set aside the judgment or order
that is the subject of the appeal and to give any judgment
or make
any order that the circumstances may require. There is nothing in
this wording that limits the powers of this Court on
appeal. On the
contrary, it is empowered to make appropriate orders. This Court is
in as good a position as the Labour Court was
to adjudicate upon
this matter. There is no reason to limit its powers on appeal. It
follows that this appeal is a rehearing on
the record, and should we
differ from the Court a quo, an appropriate order will have to be
substituted.
The legal principles applicable to
applications for condonation for non compliance with the time limits
laid down in rules are well
known. A reference to the abundance of
authority is not necessary. The appellant had to show sufficient
cause for the relief sought.
The decision is to be based on fairness
having regard to all the relevant facts. These are usually the
degree of lateness, the
explanation therefor, the prospects of
success and the importance of the case. Ordinarily they are
inter-related and not individually
decisive. But if there are no
prospects of success, the granting of condonation would be
pointless. Melane v Santam Insurance Co
Ltd
1962 4 SA 531
(A) 532C.
To these four categoies of relevant facts may be added the
convenience of the Court, the avoidance of unnecessary delay
in the
administration of justice and the respondent's interest in the
finality of her judgment. United Plant Hire (Pty) Ltd v Hills
and
Others
1976 1 SA 717
(A) 720E. And still this list is not a
numerus clausus. The present case demonstrates that, as set out
hereunder.
16 This brings me to the question of the delay.
Certainly the explanation therefor could have been more detailed
and candid. It
transpired that the appellant's statement that the
telefax number 9121553 was that of the finance manager only, is
incorrect. It
is shared by the general manager- human resources. Both
share one secretary. It is left unexplained why false information was
placed
before Court.
There is no
explanation why the telefax of 10 October 2000 which was received,
was not attended to. There is no explanation that
the papers were in
fact forwarded to Johannesburg, and if they were, by whom, by whom
they were received there and by whom returned
and when. There is no
explanation why the attorney, who on 4 December 2000 became aware of
the matter, did not take steps till 20
December 2000 when the notice
of opposition was filed and did not see to it that the response was
filed till 22 January 2001. There
is no evidence that the offices of
this firm closed for the Christmas holidays. There is no explanation
why the human resource manager
could not have filed the response
immediately after 4 December 2000. Its contents is of such general
nature that minimum research
would be required to gather this
information.
I must conclude
that the appellant is either not entirely frank with the Court or
that its attitude is that time limits are
not to be taken seriously
and that condonation will be granted as a matter of course no matter
how sloppy the application is drawn.
This conclusion would lead to
the refusal of the application without further ado, but for one
important consideration which is dealt
with hereunder.
17 There is a problem
with both the claim and the response thereto. As mentioned
previously, the respondent alleges in her statement
that the work
performed by her and the other 5 managers within her band is of equal
value, yet she earns the least remuneration.
She is the only woman.
Therefore she is being discriminated against on the basis of her
gender. The appellant's refusal to bring
her remuneration " in
line with all the managers " in her grade amounts to unfair
discrimination. She claims inter alia
that the appellant be directed
"to remunerate the Applicant as a Styling Manager". What
the others in her band earn and
what the remuneration of a styling
manager is, is left unexplained. The defence to the claim is as
follows: Following the Peromnes
Broad Band system the managerial
band has a linear pay scale from a maximum to a medium to a minimum.
It includes a number of disciplines.
There are various pay levels
influenced by market relation, years of service, and date of
commencement in the function. The respondent's
position was
re-evaluated in terms of the appellant's evaluation procedure on 30
August 2000. The results showed she was correctly
banded. All the
managers in that band earn different levels of remuneration. There
is no information on the pay scales in the band,
the remuneration of
the individual managers, market relativity, years of service of the
managers or their individual functions. No
particulars are given of
the re-evaluation.
18 In fact, the Court
is entirely in the dark on these pleadings as to the detail of the
respective cases. The phrase in prayer 6.1
"to bring the
applicant's remuneration in line with all the managers in the
applicant's grade" is vague and embarrassing
when regard is had
to the fact that the managers all earn different salaries. Prayer 6.3
that "the Respondent is directed to
remunerate the applicant as
a Styling Manager" is vague as the remuneration is not defined
in the papers. Should these prayers
be granted by default it will
create more problems than it will solve and lead to further
litigation. The appellant's input is indispensable
to the formulation
of an order that is both fair and effective. In short, this matter
should not be adjudicated by default. In
this case the proper
administration of justice compels the granting of the application for
condonation.
19 The appeal must therefore be upheld. As far
as costs are concerned: the original application was caused by the
appellant’s
dilatoriness. It should bear those costs. The
appellant's application is defective in its explanation of the delay
and the appeal
is successful despite its demerits. It is proper that
this Court expresses its disapproval thereof by a punitive costs
order.
20 The following order is made:
20.1 The appeal is upheld.
20.2 The order of the Court a quo is set aside
and the following order is substituted:
“The late filing of the respondent’s
response to the applicant’s statement of claim is condoned. The
applicant in the application
for condonation (Toyota) is ordered to
pay the respondent's ( Shmeizer’s) costs of this application.”
20.3 The appellant is ordered to pay the
respondent's costs of appeal.
Van Dijkhorst AJA
I concur
Zondo JP
I concur
Nicholson JA
For Appellant: Adv L C A Winchester SC
instructed by
Shepstone & Wylie
For Respondent Adv M
Pillemer SC
instructed by Deneys
Reitz
Date of hearing: 12
March 2002
Date of judgment: 4
October 2002