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[2009] ZALCD 1
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Perumal v Smith Manufacturing (Pty) Ltd (D51/08) [2009] ZALCD 1 (2 December 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN DURBAN
CASE
NO. D51/08
NOT
REPORTABLE
In
the matter between:
SANTHA
DEVI
PERUMAL
Applicant
And
SMITH
MANUFACTURING (Pty) LTD
Respondent
JUDGMENT
GUSH,
J.
1.
In this matter I granted the respondent’s application to
dismiss the applicant’s claim on the grounds that the applicant
filed her statement of claim out of time without seeking condonation
and ordered the applicant to pay the respondent’s costs.
At the
time I gave brief reasons for my order. These are my full
reasons for granting the respondent’s application
to dismiss
the applicants claim.
2.
This Respondent applied to dismiss the
applicant’s claim on the grounds firstly that the applicant,
having filed its statement
of claim out of time has not applied for
condonation and secondly that the statement of claim was served on
the incorrect address
and therefore does not constitute proper
service.
3.
The background to the matter is that the
applicant was dismissed by the respondent on the 12
th
of July 2007 for misconduct. She was dissatisfied with her dismissal
and referred her dispute regarding an unfair dismissal to
the Metals
and Engineering Bargaining Council.
4.
The applicant served the referral on the
respondent at its place of business where it was received by the
respondent’s HR
manager Mr T Faku.
5.
The dispute was enrolled on the 8
th
of October 2007 for a con/arb process to take place. At this stage of
the proceedings the applicant was unrepresented and according
to the
bargaining council’s attendance register the respondent’s
Mr Faku was present.
6.
For reasons that are unexplained in the
papers the matter was not arbitrated immediately after conciliation.
The bargaining
council issued a certificate of outcome which reflects
that the dispute remained unresolved.
7.
There was nothing in the referral to the
bargaining council to suggest that the applicant was alleging that
her dismissal was as
a result of unfair discrimination as opposed to
her being dismissed for misconduct and specifically the applicant’s
“summary
of the facts” and “outline of any special
features” did not give any indication that the applicant was
alleging
an automatically unfair dismissal on grounds of
discrimination. As a result the conciliator recorded that the dispute
concerned
an unfair dismissal for misconduct and marked the block on
the prescribed form which indicated that the applicant could refer
the
dispute to arbitration if it remained unresolved.
8.
Subsequent to the conciliation hearing but
prior to the arbitration the applicant sought legal advice and was
represented by her
attorney at the arbitration when the matter was
enrolled by the bargaining council on 20 November 2007.
9.
At the arbitration the applicant’s
attorney appeared on her behalf and the respondent was again
represented by Mr Faku.
10.
At the commencement of the arbitration the
applicant’s attorney somewhat surprisingly raised a point in
limine on behalf of
the applicant that the bargaining council did not
have jurisdiction to arbitrate the matter as it concerned an alleged
automatically
unfair dismissal. This point in limine was not opposed
by the respondent. The arbitrator considered the applicant’s
argument
and issued an award on the following day simply dismissing
the applicant’s application. The arbitrator’s award
reads:
“
The DRC lacks the
necessary jurisdiction to determine this dispute. The application is
dismissed”.
11.
Nothing further transpired until the 25
th
of February 2008 when the applicant presumably with the assistance or
at least the knowledge of her attorney filed a statement
of claim
with the court alleging an automatically unfair dismissal. The
statement of claim is signed by “Roopnarain S”
as
“
Applicant or duly authorised
representative
” and the
applicant’s attorney is reflected as the service address.
12.
The statement of claim
does not disclose the
date of dismissal;
does
not disclose whether or not the dispute was referred to a
bargaining council or the CCMA;
does
not set out the background to the referral to the bargaining
council and the subsequent dismissal of the applicant’s
claim;
does not attach or
explain the nature and importance of any of the documents listed
under the heading “schedule of documents;
under
the heading “statement of facts” alleges that the
applicant was dismissed as a result “an elaborate
plot of
victimisation”, “harassment and victimization for
lodging grievances” and quotes the contents of
section
187(1)(f) of the Labour Relations Act 66 of 1995 (LRA).
13.
The statement of claim was served by
facsimile on what the applicant averred was the respondent’s
facsimile number. It transpired
that the facsimile number was not the
correct number and the respondent did not receive the statement of
claim.
14.
In the absence of any opposition the
applicant requested the Registrar to enrol the matter. The matter was
enrolled for default
judgement on the 27
th
of August 2008. The notice of set down was posted by registered post
by the Registrar to the respondent at the postal address recorded
by
the applicant in her statement of claim. The respondent received the
notice of set down and filed a notice of opposition and
application
for the condonation of its late filing of its notice of opposition
and opposing affidavit.
15.
The respondent explained in its application
for condonation that the reason it had not timeously opposed the
matter was due to the
fact that the statement of claim had been
served on the incorrect facsimile number. The facsimile number used
by the Applicant
was that of a different company, Smith’s
Plastics (Pty) Ltd. In support of this the respondent attached copies
of letters
addressed to the applicant on its letter head which
reflected the correct physical postal and facsimile addresses. For
example
the respondent filed a copy of a letter addressed to the
applicant in 2007 by the respondent concerning her appeal against her
dismissal which letter clearly reflects the respondents correct
facsimile number.
16.
The respondent in its notice of opposition
raised two preliminary points. The first point related to the service
of the statement
of claim by facsimile on the respondent’s
incorrect facsimile number. The second point related to the
applicant’s late
filing of the statement of claim and the
absence of an application for condonation.
17.
The respondent raised these issues on the
26
th
of August 2008. The applicant’s filed a reply on the 20
th
of February 2009 which purported to deal “
merely
with the points in limine raised by the respondent
”.
18.
Regarding the first point in limine it is
clear from the documentation and affidavits filed by the respondent
that the statement
of claim was in fact served on the incorrect
address. The applicant’s response to the point dealing with the
service address
for the statement of claim was to aver that Mr Faku
had given that address at the arbitration and therefore the applicant
was entitled
to rely on the facsimile number when serving the
statement of claim.
19.
As far as the second point in limine is
concerned the respondent averred that the application was filed some
135 days after the
bargaining council certified (on the 8
th
October 2007) that the dispute remained unresolved and that the
applicant had not sought condonation for the late filing of the
statement of claim.
20.
The applicant’s response to the
second point in limine was that it was not necessary to apply for
condonation on the grounds
that she did not have to comply with any
time limits but could file within a reasonable time and/or that the
arbitration award
constituted a certificate and that accordingly the
statement of claim had been filed timeously.
21.
Neither averment is correct.
22.
In the circumstances and faced with the
applicant’s refusal to apply for condonation on the grounds
that it was not necessary
the respondent filed an application for the
dismissal of the applicant’s case. This is that application.
23.
The respondent seeks an order dismissing
the applicants claim firstly on the grounds that the failure to serve
the statement of
claim on the respondents correct address, does not
constitute proper service and that the application is accordingly not
properly
before the court. Secondly that the court cannot hear the
application in that the applicant, having filed the statement of
claim
outside of the 90 day period has failed to apply for
condonation.
24.
Regarding the first ground, it is clearly
established that the statement of claim was served on the incorrect
facsimile number and
that the applicant signed and filed a service
affidavit when filing her statement of claim which stated that the
facsimile number
used to effect serve of the statement of claim is
“
indeed the facsimile number used
by the respondent
”. Quite why the
applicant chose a facsimile number to serve the statement of claim as
opposed to using the physical address
which the applicant recorded as
the respondent’s address on the statement of claim or why, as
the applicant had claimed,
Mr Faku would have given an incorrect
address is not explained.
25.
However in the circumstances of this matter
this issue is only relevant to the respondent’s application for
the condonation
of the late filing of its notice of opposition and
reply to the applicant’s statement of claim and given the order
I have
made it is not necessary to decide the issue regarding
condoning the respondent’s late filing of its notice of
opposition
to the applicant’s application.
26.
As far as the second ground is
concerned the applicant in her opposing affidavit to the respondent’s
application to
dismiss her application steadfastly denied that it was
necessary to apply for condonation. The applicant suggested that the
90
day period did not apply to her and that she was entitled to refer
the dispute within a reasonable time of the date of the arbitration
award dismissing her claim and/or that the arbitration award
constituted a certificate as provided for in section 191(5) of the
LRA.
27.
The arbitration award is simply an award
dismissing the applicant’s application on the grounds that the
bargaining council
did not have jurisdiction to consider the matter.
The dismissal of the applicants claim was what the applicant sought
at arbitration
and she was granted the relief she wanted.
28.
The facts however are that the only
certificate that has been issued is the one issued by the
commissioner on the 8
th
October 2007 and trhat the statement of claim was filed and served
outside the prescribed 90 day limit from the date of the certificate.
29.
This was pointed out to the applicant by
the respondent on the 26
th
August 2008 in the respondent’s opposing papers and again in
this application.
30.
Inconceivably, faced with an application to
dismiss her claim, the applicant has steadfastly persisted with her
refusal to apply
for condonation.
31.
It is equally inconceivable is that when
faced with the situation where the applicant’s attorney became
aware that the nature
of the dispute was an allegedly automatically
unfair dismissal, didn’t refer the dispute to this court but
the attorney waited
for the arbitration to be set down and then
sought to have the applicant’s application dismissed by the
bargaining council
for lack of jurisdiction.
32.
The provisions of the section 191(5) of the
LRA are clear. In order for a dispute to arbitrated a bargaining
council or CCMA or
adjudicated by the court, a council or the CCMA
must simply certify that the dispute remains unresolved. That part of
the certificate
which allows the commissioner to give an indication
of the appropriate forum to which an applicant may refer their
dispute is superfluous.
It is neither required by the LRA nor is it
binding on the parties.
33.
For the court to have jurisdiction
determine an alleged automatically unfair dismissal the dispute must
firstly have been referred
to the bargaining council which in turn is
required to attempt to resolve the dispute through conciliation.
Secondly, if conciliation
fails the bargaining council must issue a
certificate that the dispute remains unresolved. Thirdly the
certificate entitles an
applicant to refer the dispute within 90 days
of the date of the certification for arbitration or adjudication.
34.
If this done outside of the 90 day period
the court is entitled to condone non observance of that time-period
on good cause. This
however requires an applicant to apply for
condonation by means of a substantive application. (see section
191(4), (5) and
(11) of the LRA).
35.
The applicant however, despite her
attention having been drawn to the fact that the only certificate
that has been issued by the
bargaining council was issued on the 8
th
of October 2007 and that the statement of claim was filed and served
more than 90 days after the date of the certificate, has steadfastly
failed or refused to bring such application.
36.
In the absence of an application for
condonation the applicant has not complied with the provisions of
section 191(11)(a) and the
applicants application therefore must be
dismissed.
37.
Whilst the circumstances surrounding the
service of the statement of claim are disturbing given the failure
and refusal of the applicant
to apply for condonation and the
resultant absence of jurisdiction it is unnecessary for me to deal
with this point. The same applies
to the respondent’s
application for condonation for the late filing of its notice of
opposition.
38.
In the circumstances:
1.
The respondent’s application to
dismiss the applicant’s claim on the grounds that the applicant
has filed her statement
of claim out of time without seeking
condonation is granted
2.
The applicant is ordered to pay the
respondent’s costs.
_____________
Gush
J
DATE
OF HEARING
: 2
DECEMBER 2009
DATE
OF JUDGMENT
: 2
DECEMBER 2009
APPEARANCES
FOR
APPLICANT
: Adv J
GATES
Instructed
by
: LUSHEN
PILLAY ATTORNEYS
FOR
RESPONDENT
: A
ROCHER of FARRELL & ASSOCIATES