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[2014] ZALAC 40
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SATAWU obo Members v South African Airways (Pty) Ltd and Others (JA54/13) [2014] ZALAC 40; [2015] 2 BLLR 137 (LAC) (14 August 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JA 54/13
In the matter between:
SATAWU obo MEMBERS
Appellant
and
SOUTH
AFRICAN AIRWAYS (PTY) LTD
First
Respondent
MXOLISI
GONIWE
Second
Respondent
SIPHO
CHISI
Third
Respondent
MMABATHO PHAGE
Fourth
Respondent
Heard:
30 May 2014
Delivered:
14 August 2014
Summary:
condonation for the late filing of the statement of claim in respect
of claim in terms of the Employment Equity Act, 55
of 1998 (EEA).
Appellant filing statement of claim after CCMA ruling that it lacked
jurisdiction. Appellant contending that the
90 day period to refer
dispute for adjudication starts from the date when the jurisdictional
ruling was issued. Appellant further
contending that section 10 of
EEA not prescribing a time period for referral. Requirements that
after failed conciliation dispute
must be referred for adjudication
within the 90 day period restated and confirmed previous decision of
this court that the reasonable
period for bringing a claim in terms
of the EEA was 90 days. However, explanation for the delay, given the
circumstances, is reasonable-
as regards the prospects, the issue in
dispute relating to unfair discrimination- the employer bears the
onus to prove the fairness
of the discrimination- in casu,
employment equity policy document important-in absence of cannot
conclude at condonation
stage that the claim does not have good
prospects-condonation granted.
CORAM:
Tlaletsi DJP, Coppin et Sutherland AJJA
JUDGMENT
TLALETSI DJP
Introduction
[1]
This appeal is against the judgment and
order of the Labour Court (Lagrange J) concerning the appellant’s
application for
condonation for the late filing of its statement of
case. The application was opposed by the first respondent, South
African Airways
and was dismissed with no order as to costs. The
appeal is with leave of the Labour Court.
Factual Background
[2]
What follows is a brief background of the
facts pertinent to the determination of the appeal. The appellant, a
registered trade
union, referred a dispute of unfair discrimination
to the Commission for Conciliation, Mediation and Arbitration. (“the
CCMA”).
The dispute could not be resolved through conciliation
and a certificate to that effect was issued on 14 November 2011. In
addition,
the appellant’s referral of the dispute was dismissed
by the same conciliating commissioner due to no appearance on the
part
of the appellant. However, soon thereafter, the appellant
successfully instituted rescission proceedings against the dismissal
of the referral.
[3]
The appellant requested the CCMA to
arbitrate the dispute and the arbitration was set down for 12 March
2012. All the parties attended
the arbitration. The commissioner
ruled that the CCMA lacked jurisdiction to arbitrate the dispute
since it related to an alleged
unfair discrimination.
[4]
The appellant filed its statement of claim
in the Labour Court on 12 June 2012. The reasons given by the
appellant why the statement
of claim was only filed on this date was
that it was due to the internal processes that had to be followed at
the appellant before
a decision could be taken to institute
proceedings in the Labour Court through the attorneys. The
explanation, in brief was that
the shop steward, who was handling
this matter, referred it to the Kempton Park local office on 30 April
2012. From there the matter
was referred to the Provincial Office,
which, in turn, had to refer it to the appellant’s Head Office
after following certain
procedures. The attorneys were only
instructed to act on 24 May 2012. The first consultation with the
attorneys was held on 25
May 2012. The subsequent consultation
between the attorney and the affected employees was held on 6 June
2012. Another consultation
was held with the appellant’s
President on 11 June 2012 where all the required information was
finalised for the statement
of claim to be filed the following day on
12 June 2012.
[5]
In the statement of claim, the appellant
contended that its members were unfairly discriminated against by the
first respondent
in that:
5.1
The first respondent has an Employment Equity Policy which has been
in operation since 1
October 2011. The policy deals,
inter alia
,
with recruitment and selection procedures in implementing employment
equity when a position is available within the first respondent;
5.1.1 the
positions must first be advertised internally;
5.1.2 no
unfair discrimination processes and assessment methods will be
employed in the selection and recruitment;
5.1.3 every
vacancy that becomes available must aspire towards achieving
Affirmative Action goals and those persons
who fall within such
category will be afforded first consideration and steps must be taken
for promotions and Affirmative Action
campaigns;
5.1.4 the
first respondent should take steps to attract suitable Affirmative
Action candidates for promotion;
5.1.5 in the
event that no suitable Affirmative Action candidate is available
within the organisation, the first respondent
may recruit a suitable
external Affirmative Action candidate;
5.2
The first respondent advertised three vacant positions of Human
Resource Business Partner
(HRBP) internally on 27 June 2011.
5.3
All three employees, who possessed the required qualifications and
experience, applied for
these positions.
5.4
None of the three employees were shortlisted, or called to attend the
interviews, despite
meeting the requirements.
5.5
Despite requesting reasons from the first respondent for its failure
to shortlist and or
interview the employees, the first respondent
failed to comply with the request.
5.5
The first respondent, acting contrary to the policies, appointed the
second to the fourth
respondents, who were not recruited from within
the organisation.
5.6
The first respondent discriminated against the employees unfairly, in
contravention of
Section 6(1)
of the
Employment Equity Act
[1
]
,
by, in addition, to overlooking the internal candidates and not
complying with its policies, employing two males and only one
female,
thereby discriminating against all three employees who are all
females.
[6]
The application for condonation is opposed
by the respondents. In the answering affidavit, it was averred on
behalf of the respondents
that the employees did not meet the
requirements of the selection for the posts. The requirements for the
posts were fully set
out in the advertisements for the posts. It is
further averred that the employees did not meet the first
respondent’s strategic
and operational requirements and that
the contention by the employees that the first respondent acted in
breach of its Employment
Equity Policy in not appointing them is
patently incorrect and based on an improper interpretation of that
policy.
Judgment of the
Court
a quo
[7]
The Labour Court heard the matter on 12
December 2012 and granted the order, dismissing the condonation
application, on 18 December
2012. The reasons for the order were
furnished subsequent to the order. In its reasons the Labour Court
made the following remarks
and findings:
7.1
Since the dispute was unsuccessfully conciliated on 14 November 2011,
the appellants ought
to have filed the statement of case on 12
February 2012. The referral was therefore four months late, the
effect thereof being
that the appellants took seven months after the
unsuccessful conciliation to formulate and file their claim.
7.2
The delay of this magnitude is excessive and strong justification
would be required to permit
the matter to proceed in spite of it.
7.3
The condonation application was only filed some five months after the
statement of case,
which in itself ought to have been explained, as
condonation applications should be filed as soon as possible.
7.4
The principal explanation for the delay is that the matter was
initially referred to arbitration
and the commissioner ruled that the
CCMA had no jurisdiction. The shop steward representing the
individual employees was under
the impression that the 90 day period,
within which the matter had to be referred to court, only began when
the jurisdictional
ruling was made. It is not explained why the union
officials in question did not concern themselves with the applicable
statutory
limits.
7.5
The justification for the delay is weak since the appellants rely
entirely on the ignorance
of a shop steward who was not the only
person dealing with the matter.
7.6
Failure by the first respondent to comply with its policy, requiring
it to appoint any suitably
qualified internal candidate before
external candidates were considered, does not amount to unfair
discrimination on one of the
grounds identified in
sec 6(1)
of the
EEA.
7.7
In so far as the appellants seek to positively enforce their rights
to promotion in compliance
with the employer’s Affirmative
Action Policies, it is now well established that the remedy for
compelling compliance with
employment equity policies is not to be
found in a claim of unfair discrimination under
sec 6(1)
of the EEA.
7.8
On the face of it, a claim of unfair discrimination based on sex
might have some moment
and is a claim that the court can adjudicate
under
sec 6(1)
of the EEA, however on the available evidence, there
does not appear to be
prima facie
prospects of success in this
regard, because one of the three successful candidates was a female
and, as a result, it does not
appear that the first respondent was
only appointing male candidates.
7.9
In general, the Court was not persuaded that the appellants had
established any basis for believing
that they had some prospects of
success with the claim.
7.10
Claims of unfair discrimination are not to be lightly brushed aside,
but that does not mean that every claim
must be entertained no matter
how slender the factual basis of the grounds advanced.
7.11
The claim does not raise any novel issue in the jurisprudence of
unfair discrimination.
[8]
The Labour Court concluded thus:
‘
Given
the relatively long delay and an inadequate explanation therefor,
coupled with what appeared to be slim prospects of success
and a lack
of any special features of this case which would make adjudication
desirable, I am satisfied that the matter should
not be allowed to
proceed and condonation should not be granted.’
The Appeal
[9]
In
this Court, the appellant contended that
sec 10
of EEA does not
prescribe a time period and that, accordingly, referrals of such
claims to the Labour Court are to be made within
a reasonable time.
Counsel submitted that since there is no prescribed time period it
was not necessary for the appellant to apply
for condonation. The
appellant relied on the judgment of
Masango
v Liberty Group Limited
[2]
and
Vorster
v Rednave Enterprises CC t/a Cash Converters Queenswood
[3]
as authority for its submissions.
[10]
It
is in my view appropriate to dispose of this contention at this stage
before considering other contentions made on behalf of
the appellant.
This issue has been authoritatively decided by this Court in
NEHAWU
obo Mofokeng and Others v Charlotte Theron Childrens Home.
[4]
In that case, this Court had to determine a point
in
limine
in which it was contended that the dispute, relating to an alleged
unfair labour practice based on discrimination, was required
to have
been referred to the Labour Court for adjudication within 90 days
from the date of the issue of the CCMA outcome certificate,
but was
referred way out of that period and that, therefore, the Labour Court
did not have jurisdiction to determine that dispute.
In rejecting the
contention that the 90 day period does not apply and that the dispute
must be referred within a reasonable time,
this Court held that:
‘
However,
as Ms Da Costa, who appeared on behalf of the respondent submitted,
section
10(6)
of
the Equity Act provides:
“
If
the dispute remains unresolved after conciliation –
(a) any party to that
dispute may refer it to the Labour Court for adjudication; or
(b) all the parties to
the dispute may consent to arbitration of the dispute.”
Reading
section
10(6)
and
10(7)
of
the Equity Act together, it would appear that the Equity Act must be
read together with the applicable provisions of the Act.
By reference
to the words with the changes required by the context in
section
10(7)
the
90-day time period as provided for in
section
136(1)
of
the Act, which itself appears in Part C of Chapter VII of the Act,
becomes applicable to the dispute. In other words, although
the
present dispute involves adjudication after an unresolved
conciliation and
section
136(1)
refers
expressly to arbitration, the savings provision in
section
10(7)
of
the Equity Act then becomes operative; hence the 90-day requirement
is of equal application in the new context to the adjudication
as
envisaged in
section
10(6)
of
the Equity Act.’
[5]
[11]
The legal principle established by this
Court in
NEHAWU obo Mofokeng
is that the 90 day time limit set by the LRA, applies to referrals of
disputes to the Labour Court under the EEA. Therefore, the
Labour
Court’s findings in the
Masango
matter referred to above that- : “
The
respondent’s point in limine stands to be dismissed since it
was raised on the basis that the referral should have been
made
within 90 days from the date when conciliation had failed in terms of
section 191(11)(a) of the LRA. Section 191(11)(a) of
the LRA is not
applicable. There is no time limit either in the applicable sections
in the LRA or the EEA within which an unfair
discrimination dispute
to this Court must be referred within a reasonable period”-
is against the binding authority of this Court and consequently does
not represent the correct legal position.
[12]
The appellant further relied on remarks
made in the
Vorster
judgment to the effect that:
‘
There
is no provision in the LRA which prescribes the time period within
which a referring party must refer her statement of claim
to the
Labour Court once the Commissioner at arbitration rules that it does
not have jurisdiction to adjudicate the dispute and
that the dispute
must be referred to the Labour Court. Where in the past this Court
had to consider what would constitute a reasonable
time within which
a party to a dispute must perform a procedural step, the Court had
regard to comparable provisions in the LRA
where time periods have in
fact been prescribed for a similar or comparable procedural step. The
most pertinent example is where
the Court had to determine what a
reasonable time period would be within which to file a review
application in the context of section
158(1)(g) of the LRA. With
reference to section 145 review applications where a time limit of 6
weeks has been prescribed by the
legislature within which to file a
review application, the Court has concluded that a reasonable time
within which to file a section
158(1)(g) review application is
interpreted to mean 6 weeks.’
[13]
The difficulty I have with the above
remarks is that it cannot be expected of the legislature to make
provision for a time period
within which a party may refer a dispute
to the Labour Court for adjudication after a ruling by the CCMA that
it lacks jurisdiction
in arbitration proceedings, since a referral to
arbitration where arbitration is not required by the LRA is, in
itself, an irregular
step. What the law prescribes is that a party,
after conciliation has failed, should proceed directly to the Labour
Court for adjudication
of the dispute. Therefore, the Labour Court
should have reckoned the time period from the conciliation stage to
the day of the
filing of the Statement of Claim. This is the correct
approach, according to what was held in
NEHAWU
obo Mofokeng
. It may have been that the
decision was not brought to the attention of the court in both the
Masango
and
Vorster
matters, because no reference was made to it in those matters. Any
departure from the decision in
NEHAWU
obo Mofokeng
could only have been on
the basis that it was distinguishable from the facts of the case
under consideration, otherwise the decision
was binding on the Labour
Court. The appellant’s arguments to the contrary should
therefore fail. The 90 day period applied.
[14]
The next consideration is the period of
delay. The 90 day period should be calculated from 14 November 2011
which is the day on
which the certificate of outcome of the
conciliation proceedings was issued. The period expired on 14
February 2012. Since the
statement of case was only filed on 12 June
2012, the appellant was out of time by about four months.
[15]
The
Labour Court has discretion to condone the late filing of any
document or late referral of any dispute to the court.
[6]
A party seeking condonation for the late referral of a dispute must
show good cause for the discretion to be exercised in its favour.
The
correct approach in determining whether good cause has been shown was
laid down in
Melane
v Santam Insurance Co. Ltd:
[7]
“
In
deciding whether sufficient cause has been shown, the basic
principle is that the Court has a discretion, to be exercised
judicially upon a consideration of all the facts, and in essence it
is a matter of fairness to both sides. Among the facts usually
relevant are the degree of lateness, the explanation therefor, the
prospects of success, and the importance of the case. Ordinarily
these facts are interrelated: they are not individually decisive, for
that would be a piecemeal approach incompatible with a true
discretion, save of course that if there are no prospects of success
there would be no point in granting condonation. Any attempt
to
formulate a rule of thumb would only serve to harden the arteries of
what should be a flexible discretion. What is needed is
an objective
conspectus
of all the facts. Thus a slight delay and a good explanation may help
to compensate for prospects of success which are not strong.
Or the
importance of the issue and strong prospects of success may tend to
compensate for a long delay. And the respondent's interest
in
finality must not be overlooked. I would add that discursiveness
should be discouraged in canvassing the prospects of success
in the
affidavits. I think that all the foregoing clearly emerges from
decisions of this Court, and therefore I need not add
to the
evergrowing burden of annotations by citing the cases.”
[8]
[16]
The uncontested explanation for the delay
is that most of the period of the delay was taken up by the referral
to arbitration. The
remainder of the period was caused by the
internal processes within the appellant in taking a decision to
proceed with the claim
and instructing attorneys accordingly.
Although the period is lengthy, it has been, in my view, adequately
explained and it would
be unfair to punish the individual employees
for a process they did not have direct control. Furthermore, the
condonation application
was filed two days after the filing of the
statement of case. The mistake made in the court
a
quo
that it was filed after five
months, has been acknowledged by that court in its judgment on the
application for leave to appeal.
[17]
I am in agreement with the Court
a
quo
’s remark that claims of
unfair discrimination are not to be lightly brushed aside and that by
that it does not mean that
every claim must be entertained no matter
how slender the factual basis of the grounds advanced. It is however
also important to
note that the appellant is seeking to assert its
members’ rights in terms of the EEA. The purpose of the EEA is
to achieve
equity in the workplace by promoting equal opportunity and
fair treatment in employment through the elimination of unfair
discrimination
and implementing affirmative action measures to
redress the disadvantages in employment experienced by designated
groups, in order
to ensure their equitable representation in all
occupational categories and levels in the workplace.
[18]
Section 3 of the EEA decrees that the Act
must be interpreted:
(a)
“
in compliance with the
Constitution;
(b)
so as to give effect to its purpose;
(c)
taking into account any relevant
code of good practice issued in terms of this Act or any other
employment law; and
(d)
in compliance with the international
law obligations of the Republic, in particular those contained in the
International Labour
Organisation Convention (No. 111) concerning
Discrimination in Respect of Employment and Occupation.”
[19]
It
must be borne in mind that the EEA enjoins every employer to take
steps to promote equal opportunity in the workplace by
inter
alia
,
eliminating unfair discrimination in any employment policy or
practice.
[9]
Section 6(1) lists
instances that are regarded as prohibited grounds for discrimination.
Gender and sex are included in that list.
An employee who complains
of unfair discrimination in terms of the EEA is only required to
“allege” unfair discrimination
and the employer against
whom the allegation is made must prove that it is fair.
[20]
The appellant’s claims of unfair
discrimination are not well articulated in the statement of claim.
However, in light of the
fact that the burden of proof is on the
employer to establish fairness, one should be loath to shut the door
for the employees
in cases of this nature. It may be a good
consideration that a female candidate has been employed or that some
of the candidates
who were shortlisted for the positions were female.
However, it does not necessarily mean that the first respondent did
not unfairly
discriminate against the individual employees by
employing one female candidate together with male candidates. This is
an issue
that can properly be determined in due course when all the
facts are placed before court and not in an application for
condonation.
[21]
The other concern I have in this matter is
that the Employment Equity Policy refers to other documents such as
an Employment Equity
Plan. The latter document is supposed to contain
all objectives, action plans, target dates and responsibilities
necessarily required
in implementing Employment Equity. Such a
document is not attached and one does not know what information is
contained in it and,
importantly, whether it has been complied with.
Such issues can only be resolved when the matter is fully ventilated
with all information
placed before court.
[22]
In my view, the
ipse
dixit
of the first respondent that it
has acted in accordance with the Employment Equity Policy is not
sufficient for one to conclude
that it has done so. More factual
basis was required from the respondent to show how it has complied
with the Employment Equity
Policy and other related policies and
plans since it carries the
onus
to do so. It is only a Court trying the issue that will have an
opportunity to consider all these matters.
[23]
In conclusion, I am of the view that the
reason for the delay has been satisfactorily explained; that the
appellant had throughout
the process desired to have the dispute
adjudicated to finality; that the subject–matter of the dispute
is substantial and
of importance to the appellant and its members;
and that the appellant has made out a case with some prospects of
success.
For the reasons outlined above, I am of the view that
the condonation for the late filing of the Statement of Case should
have
been granted and the matter allowed to run its normal cause.
This is a matter that each party must carry its costs on appeal.
[24]
In the result, the following order is made:
a)
The appeal is upheld and the order of the
Labour Court made on 18 December 2012 is altered to read:
‘
a)
The applicant’s condonation application for the late referral
of the Statement of Claim is granted.’
b)
Each party is to carry its own costs.
__________________
Tlaletsi DJP
Deputy Judge President
of the Labour Appeal Court
Coppin
and Sutherland AJJA concur in the judgment of Tlaletsi DJP
APPEARANCES:
FOR
THE APPELLANT:
Adv Memani
Instructed by Mabaso
Attorneys
FOR
THE RESPONDENTS:
Adv T. Manchu
Instructed
by Poswa Incorporated
[1]
Act
55 of 1998.
[2]
(2012)
3 BLLR 3003 (LC).
[3]
(2009)
30 ILJ 403(LC).
[4]
[2004]
10 BLLR 979 (LAC).
[5]
At para 19.
[6]
Section
158(1)(f) of the LRA.
[7]
1962(4)
SA 531 (AD).
[8]
At
532C-F.
[9]
Section
5 provides that every employer must take steps to promote equal
opportunity in the workplace by eliminating unfair discrimination
in
any employment policy or practice.