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[2011] ZALCJHB 16
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Olding v Clear Channel Independent (Pty) Ltd (JS663/08) [2011] ZALCJHB 16 (2 February 2011)
1
IN THE LABOUR
COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
REPORTABLE
Case number
JS663/08
In the matter
between:
LINDA OLDING
…............................................................................................
Applicant
And
CLEAR CHANNEL
INDEPENDENT (PTY) LTD
….................................
Respondent
_______
Judgment
Molahlehi J
Introduction
This is an
application for condonation for the late filing of the statement of
case filed, with this court by the applicant. The
disputes which the
applicant seeks to have the court adjudicate upon concerns an
alleged constructive dismissal allegedly arising
from racial and
gender discrimination.
Background facts
The applicant who
was employed by the respondent as an accountant resigned from her
employ on the 2
nd
January 2008. She thereafter referred a
constructive dismissal dispute to the Commission for Conciliation,
Mediation and Arbitration
(the CCMA) on 17
th
January
2008. The parties having failed to reach a consensus during the
conciliation process, the commissioner issued the certificate
of
outcome on the 9
th
April 2008. The applicant filed her
statement of case on the 18
th
September 2008.
The statement of
case was 2 (two) months and 9 (nine) days late. The applicant
attributes the lateness of the statement of case
to what transpired
between her attorney Ms Botha and counsels who had been briefed at
different times to handle her matter. One
of the counsels returned
the brief after agreeing to be involved in the matter. The other
reason given for the delay is the fact
that Ms Botha went on
maternity leave.
As concerning the
circumstances surrounding her resignation the applicant states the
following in the statement of case:
“
8
For the period which the Applicant was employed with the Respondent,
she was subjected to almost daily disrespect, racist remarks
and
verbal abuse from the Respondent’s employees.
9 The conduct
referred to in paragraph 8 above had become more prevalent and
increasing as the Applicant’s employment had
continued.
10 The conduct
mentioned in paragraph 8 above was reported to the Management of the
Respondent on several occasions.
11 The Respondent
had investigated only couple of the complaints reported and had
failed to ensure and / or implemented procedures
to protect the
Applicant from the conduct set out in paragraph 8 above, and/or
sanction its employees that committed the conduct
complained of set
out in paragraph 8 above.
12 As a result of
the continues (sic) conduct set out in paragraph 8 above, and the
Respondent’s failure to ensure that the
conduct is stopped as
set out in paragraph 11 above, the Respondent made continued
employment intolerable for the Applicant.”
The applicable
legal principle
The approach to be
adopted in dealing with an application for condonation was dealt
with in
Gaoshubelwe & others v Pie Man's Pantry (Pty) Ltd
[2008] JOL 22302
(LC),
wherein at paragraph [24] the
court held that in an application for condonation the applicant is
in essence seeking the extension
of the time frames provided for in
the Act, through the indulgence of the court. The factors which the
court has to take into
account in considering whether or not to
grant condonation are set out in that judgment as follows:
“
(a)
to
show that the degree of lateness or non-compliance with the
prescribed time frame is not excessive;
(b) to provide an
explanation for every aspect of the period of the lateness or the
failure to comply with time frames;
(c) to show that
there (sic) prospects of succeeding or has bona fide defence when the
matter is considered and when considered
in the main case;
(d) to show the
importance of the case;
(e) to show
interest in the finality of the matter and the convenience of the
court; and
(g) has to show
avoidance of unnecessary delay in the administration of justice (see
Foster v Stewart Scott Inc (1997) 18 ILJ 367
(LAC).
The court went
further in that case to say the following:
“
[25]
The
court in excising its judicial discretion to grant condonation does
so by taking into account that the above factors which the
applicant
has to show are not individually decisive but are interrelated and
must be weighed against each other. And in weighing
these factors for
instance, a good explanation for the lateness may assist the
applicant in compensating for weak prospects of
success. Similarly,
strong prospects of success may compensate the inadequate explanation
and the long delay.
[26]
An applicant in an application for condonation has to show good cause
by providing an explanation that shows how
and why the default
occurred. There is authority that the court could decline the
granting of condonation if it appears that the
default was wilful or
was due to gross negligence on the part of the applicant. In fact the
court could on this ground alone decline
to grant an indulgence to
the applicant.
[27]
The prospects of success or bona fide defence on the other hand mean
that all what needs to be determined is the
likelihood or chance of
success when the main case is heard (see Saraiva Construction (Pty)
Ltd v Zululand Electrical & Engineering
Wholesalers (Pty) Ltd
1975 (1) SA 612 (D) and Chetty v Law Society,
Transvaal 1985 (2) SA 756 (AD)
at 765A–C).”
This court has
previously stated that whilst the factors mentioned above are
interrelated and have to be weighed together, however
the two
factors that carry more weight are the reasonableness of the
explanation and prospects of success. It is trite that without
reasonable explanation for the delay, condonation is generally
refused. The approach to be adopted where the explanation is
unsatisfactory or where there is no reasonable explanation was set
out in
Melane v Santam Insurance Co Ltd
1962 (4) SA 531
(A) at 532C–F, where the court held that without a reasonable
and acceptable explanation
for the delay, the prospects of success
are immaterial, and without prospects of success, no matter how good
the explanation
for the delay, an application for condonation should
be refused. Another important consideration weighing whether or not
to grant
condonation is the steps that the applicant took as soon as
it became aware that he or she was late in terms of the required
time frames. In other words the applicant should bring the
application for condonation as soon as he or she becomes aware of
the lateness of its case. This is an important indicator as to the
respect the applicant has for the court, its rules, care to
the
interest of the other party. This is also an important as to the
extent to which the applicant has an interest in the matter
and its
speedy finalisation. This should be given considerable weight very
similar to that of the explanation and the prospects
of success.
In
National
Union of Mineworkers v Council for Mineral Technology
[1999]
3 BLLR 209
(LAC), held that :
“
What
is needed is an objective conspectus of all facts. A slight delay and
a good explanation may help to compensate for prospects
of success
which are not strong. The importance of the issue of the delay, the
prospects of success no matter how good the explanation
for the
delay, an application for condonation should be dismissed."
Evaluation
In my view the
explanation tendered by the applicant is unsatisfactory. Whilst the
blame for the delay is largely attributed to
the attorneys and the
two counsels that were briefed to handle this matter, there is no
evidence of the applicant ever enquiring
as the cause of the delay.
This in my view is a case envisaged in the principle set out in
Chetty v Law Society Transvaal
1985 (2) SA 756
(A),
where the
court held that there is a limit beyond which the court would be
prepared to assist a litigant even where his or her
attorney is
entirely to be blamed for the delay.
The explanation of
the applicant is unsatisfactory in several material respects. In the
first instance Ms Botha says she returned
to the office on the 1
st
October 2008 and that on her return to the office it came to her
attention that no action had been taken in the preparation of
the
statement of case. There is however no explanation as to how this
can be reconciled with the fact that the statement of case
was filed
on the 18
th
September 2008. There is also no indication
as to the person who prepared the statement of case. There is
further no explanation
as to why the condonation application was not
made as soon as the applicant became aware that the statement of
case was late.
In other words there is no explanation as to why was
the statement of case not accompanied by the application for
condonation.
The application for condonation for the late filing of
the statement of case was only filed on the 19
th
November
2008, some two months after the statement of case was filed. The
background facts as presented by the applicant do not
present a
complex matter that required drafting of the statement of case by
counsel. There is no explanation as to why the need
to brief
counsels who are blamed for contributing to the delay in filing the
statement of case.
The unsatisfactory
explanation of the applicant is not compensated by the prospects of
success. The prospects of success have
to be assessed within the
principles governing constructive dismissal. The applicant claims
that the constructive dismissal was
a result of racial and gender
discrimination. The assessment is not done on the basis of
probabilities but on whether the applicant
has put out facts that
indicate
prima facie
a chance of succeeding when the matter
is considered in the main case.
The
approach that has been adopted by the courts indicates that because
constructive dismissal is an unusual form of dismissal
it is not
readily accepted as such. The burden to establish the existence of
constructive dismissal rests with an employee alleging
that he or
she was constructively dismissed. In order to succeed in
establishing the existence of constructive dismissal the
employee
has to adduce facts and circumstances showing the following:
(a) continued
employment has become intolerable for him or her;
(b) the employer
must have made continued employment intolerable;
(c) no reasonable
alternative to resignation was available to him or her and it was
done as a matter of last resort;
(d) he or she must
have lodged a grievance before resigning;
(e) he or she must
have terminated the contract of employment (resigned); and
(f) he or she did
not intend to terminate the employment contract, but resignation was
his or her last resort.
In the present
instance the applicant has made general allegations of
discrimination which seem to suggest made her to resign.
She claims
that other employees acted in an abusive manner towards her. Those
employees who are alleged to have abused her have
not been
identified in the statement of case nor in the condonation
application. There is also no evidence that the applicant
used the
grievance procedure to address her complaints. This is not a case
where it can be inferred that the applicant did not
use the
grievance procedure because she was not aware of its existence. She
had previously been subjected to grievance proceedings
which were
lodged against her. The applicant has not provided an explanation as
to why she never lodged grievance proceedings
before she resigned.
In my view the
applicant has in the light of the above discussion failed to satisfy
the requirements for the granting of the condonation
for the late
filing of her statement of case. I however, do not think it would be
fair to order that the costs should follow
the results.
In the premises the
following order is made:
Applicant’s
application for the condonation of the late filing of her
statement of case is dismissed.
There is no
order as to costs.
Molahlehi J
Judge of the Labour
Court
Date of Hearing : 21
November 2010
Date of Judgment : 2
February 2011
Appearances
For the Applicant:
A.J. Van Tonder
Instructed by :
Botha Van Vuuren Inc
For the Respondent:
W. Hutchinson
Instructed by :
Fluxmans Inc