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[2011] ZALCJHB 46
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Transport and Allied Workers Union of South Africa obo Matjila and Other v North-West Parks and Tourism Board (JS 881/09) [2011] ZALCJHB 46 (19 May 2011)
LABOUR COURT OF SOUTH
AFRICA
(HELD AT BRAAMFONTEIN)
CASE: JS 881/09
IN THE MATTER
BETWEEN:
TRANSPORT AND ALLIED
WORKERS UNION
OF SOUTH AFRICA
…..................................................................................
APPLICANT
OBO GUSTAV MATJILA
AND 26 OTHERS
AND
NORTHWEST PARKS AND
TOURISM BOARD
….....................
FIRST
RESPONDENT
REASONS FOR JUDGMENT
LAGRANGE, J:
Introduction
Judgment
in this matter was handed down on 19 May 2011. My reasons for the
judgment appear below. The judgment read as follows:
“
Having
considered the matter, the following order is made:
The
applicants’ late referral of their statement of case is
condoned.
The
applicants’ attorney of record is ordered to pay the costs
of the respondent’s application to compel the
filing of the
applicants’ heads of argument.
No
order of costs is made in respect of the condonation application.
The
parties are directed to hold a pre-trial conference within 20
days of this order and to file a pre-trial minute by 30
June
2011.
In
the event a pre-trial minute is not concluded by 30 June 2011,
the registrar must set the matter down for a pre-trial
hearing
before a judge.”
This
is an application for condonation of the late filing of a statement
of case. The 27 individual applicants, whom I am advised
by their
current legal representative, Mr Modisakeng, are no longer
represented by their union, were dismissed on 14 December
2008.
The
applicants were dismissed for: allegedly participating knowingly in
an illegal strike from 29 November to 1 December 2008;
for failing
to heed advice prior to the strike not to embark on it, and for not
complying with an ultimatum on 29 November
to return to work. A
further reason for their dismissal was the alleged intimidation of
non-striking employees.
The
condonation application
The
length of delay in filing the statement of claim
The
union referred the matter to the CCMA and a certificate was issued
on 18 February 2009 confirming that the dispute over
the dismissals
could not be resolved. The matter has been referred to the CCMA for
arbitration, but on 20 May 2009 a jurisdictional
ruling was handed
down to the effect that the CCMA had no jurisdiction over the
matter. If the matter had been referred to
the court after the
certificate of the outcome had been issued instead of proceeding in
error to arbitration by the CCMA, it
should have reached court by
19 May 2009.
However
the statement of case was only served on the company on 2 October
2009, some 137 days late. It must be said that there
do not seem to
have been any delays on the union’s part in processing the
dispute through the CCMA channels. However,
even if it is accepted
that the union, in good faith, first referred the dispute for
arbitration at the CCMA, it was only some
four months later that
the referral was made to court. It is this delay which requires
closer scrutiny and explanation.
Explanation
for the delay
No
proper explanation is provided for why the matter was referred to
arbitration in the first place. In terms of sub-sections
191
(5)(b)(i) and (ii) Of the Labour Relations Act (“LRA”),
a dismissal for participation in a protected and unprotected
strike
respectively is adjudicated by the labour court. Nevertheless, it
cannot be said that the union took no steps to pursue
the matter
prior to the adverse jurisdictional ruling in the CCMA. Moreover,
it appears to have taken steps timeously up to
that point, albeit
they were in the wrong direction.
The
difficulties arise in relation to the further delay in referring
the matter to court. To understand the union’s explanation,
as it appears from the founding affidavits deposed to by a union
official in November 2008, it is necessary to outline the
history
of litigation between the parties in the labour court which started
when the employer obtained an interdict interdicting
the applicants
from participating in the continuation of an unprotected strike and
from intimidating and otherwise interfering
with persons connected
with the Parks' business.
Events
leading to the strike which commenced on 29 November 2008 began
with a declaration of the dispute of the union about
an alleged
unilateral change to terms and conditions of employment between the
individual applicants and the board. On 7 August
2008 a certificate
of the outcome was issued by the CCMA. As this dispute could not be
resolved, a strike commenced on 20 September
2008, but the dispute
giving rise to the strike was eventually settled by the parties. A
written settlement agreement was concluded
on 25 September 2008.
On
27 November 2008 the union again informed the employer that it
intended commencing strike action, two days later, on 29 November.
Apart from any other difficulties with the strike notice the
employer alleged that insufficient notice of the strike was given
because it was entitled to 7 days notice of the strike in terms of
section 64(1)(d) of the LRA. The strike notice was also
silent as
to what time the strike would start on 29 November and did not
specify the demands put to the applicant. Moreover,
there was no
other dispute referred to conciliation in the run-up to the strike
other than the one which had already been settled.
An
interim interdict was issued on 1 December 2010 prohibiting the
union and its members from participating in unprotected strike
action. At the time the union did not oppose the application. When
did so much later, by filing an opposing affidavit on 30
April
2009, it claimed that the strike had merely been suspended pending
the applicant’s compliance with the earlier
settlement
agreement. The union also alleges that individual applicants had
returned to work on 2 December 2008 and on arrival
at their
workstations were told to come back to work the following day. On
returning to work on 3 December 2008 they were issued
with
suspension letters and notices to attend enquiries. They further
allege that the applicant had dealt with returning workers
selectively by only subjecting some of the strikers to disciplinary
enquiries and not others.
The
return day for confirming or discharging the interim order was 26
February 2009. The return day came and went without the
interim
order being contested and without the rule being formally
discharged. By that stage the dismissal dispute arising from
the
strike had already been referred to the CCMA and by the time the
return date fell due it had already been unsuccessfully
conciliated. On 20 May 2009 a jurisdictional ruling was issued in
the CCMA to the effect that it did not have authority to
arbitrate
the dispute. Prior to this ruling, the applicants' union had filed
its belated opposing affidavit in the strike interdict
proceedings.
The
employer's response to the union’s late attempt to revive the
interdict proceedings was to serve a formal notice of
withdrawal of
the interdict application on 9 June 2009. Despite this formal
notice of withdrawal, the matter was somehow set
down for a hearing
on 1 September 2009 when the court discharged the rule with costs.
According to the employer's attorney’s
uncontested account,
the applicants’ erstwhile attorneys were in attendance at
court on that day and must have failed
to notify the court that the
matter had been withdrawn.
Following
the discharge of the interdict, the applicants finally filed a
statement of claim with the court five weeks later
on 7 October
2009. The reason given for the delay in filing the statement of
claim is twofold: the union believed it was essential
to establish
the legality of the strike and therefore it was important to quash
the interdict which it only did on 1 September
2009, and because of
its limited financial resources it felt it should not proceed with
the labour court referral until the
legality of the strike had been
resolved.
There
are some difficulties with the explanation offered. The first is
that the applicants did refer the dismissal dispute to
the CCMA
without bothering to determine whether or not the strike was
protected. The implication of this is that they did not
find it
necessary to finalise the protected status of the strike before
doing so, whereas they now rely on this issue to explain
the delay
in referring the matter to court. Secondly, the determination of
the legality of the strike would not have affected
the labour
court's jurisdiction to determine the fairness of the dismissals
because it would have jurisdiction to determine
the fairness of the
dismissals, irrespective of the legal status of the strike, in
terms of subsections 191(5)(b)(i) or (ii)
of the LRA.
Nevertheless,
I accept that a determination of the legality of the strike might
have assisted the applicants in drafting the
statement of case,
thereby avoiding an unwieldy pleading in the alternative. However,
the discharge of the interim order simply
meant that the court was
not willing to confirm the provisional order. It did not amount to
a finding on the legal status of
the strike. Consequently, merely
discharging the rule could not have assisted the union greatly,
except in the sense that the
provisional unprotected status of the
strike was never confirmed in the form of a final determination.
Had the applicant’s
erstwhile attorneys not obtained the
discharge of the rule, apparently improperly, the order would in
any event have lapsed
following the withdrawal once the provisional
order had expired.
1
The
union’s former legal representatives’ approach may be
criticised in this regard as ill-informed and their action
in
allowing proceedings on 1 September 2009 to continue, despite
knowing that the application had been withdrawn, was reprehensible.
However,
even if the belated opposition of the union to the interdict had
been misguided, it is difficult to believe that this
course of
action was deliberately contrived in order to try and justify a
belated referral of the statement of case. The effort
required to
file the opposing affidavit in the interdict application could not
have been any less than the effort it would
have taken to file a
statement of claim at that stage. In the circumstances, I am
inclined to believe that it is not implausible
that the applicant
union or their legal representatives, or both, actually believed
that it was necessary to obtain a final
ruling on the interdict
before referring the unfair dismissal dispute to the labour court.
This is borne out by the pursuit
of this relief, albeit apparently
in an underhand manner, even when the matter had been withdrawn.
As
mentioned above, I am aware that the referral to arbitration was
made without this matter been determined, but I am also
mindful of
the fact that the applicants did not need to incur the cost of
drafting pleadings before referring the matter to
arbitration at
the CCMA.
Consequently,
I believe that the explanation though weak cannot be dismissed as
simply implausible. Although the conduct of
the applicants
representatives in obtaining the discharge of the rule of 1
September 2009 must be condemned by the court in
the strongest
terms, that does not detract from the fact that it appears the
applicants genuinely, if misguidedly, believed
they should obtain
such relief before advancing further with the merits in the labour
court. This goes to the question of whether
there is a reasonable
explanation for the delay.
Merits
I
have set out to have some of the factors which the parties rely on
to support their respective claims of the merits of the
fairness of
the dismissals. On the evidence before me it still appears that
there are a number of factual and legal issues
in contention. The
contentious issues are not trivial. Firstly, there remains a
question of the ultimate determination of the
protected nature of
the strike. In particular, the implications of the provision in the
previous settlement agreement in which
the union agreed to suspend
the strike does raise the question whether or not the strike was
genuinely a continuation of the
previous one. Should it turn out
that the strike was protected, that would change the character of
the dispute and which factual
issues would have to be canvassed.
There is at least a prospect, which I cannot say is unreasonable,
that the applicants might
succeed in establishing the lawful
character of the strike.
On
the other hand, if the strike’s unprotected status is
confirmed there are at least two issues which might affect the
fairness of the dismissals. Allegations made in the opposing
affidavits are that the interim order was only served on the
applicants at 15:00 hours on 1 December 2008 and that they returned
to work the following day but were not allowed to return
to work.
There is also the claim that only some of the strikers were
subjected to disciplinary enquiries and were dismissed,
yet others
were permitted to return to work without suffering any disciplinary
sanction. It is difficult to reconcile this
with the employer’s
version that strikers refused to attend disciplinary enquiries.
Although
workers were apparently warned before the strike started that it
would be unprotected, it seems possible only one ultimatum
was
issued to them during the strike before dismissal proceedings were
initiated, and that there might have been a collective
return to
work in an attempt to comply with the interdict. Moreover, the
employees might yet succeed if differential disciplinary
treatment
was meted out to them and cannot be justified.
Unlike
in the case of
Melane v Santam Insurance Co Ltd
1962
(4) SA 531
(A)
, which dealt with condonation for the late
filing of an appeal, the court does not have the benefit of a
judgment on the fairness
of the dismissals against which to
evaluate the prospects of success. Consequently, I belief the
applicants have demonstrated
a sufficient basis for concluding that
their prospects of success are not unreasonable.
Prejudice
I
appreciate that dealing with the dispute after so long with a
prospect of possible reinstatement is significant for the employer.
However, even if the applicants are ultimately successful, a court
considering any relief is entitled to have regards to delays
in
prosecuting the claim and must consider the factors set out in
section 193(2) in determining what relief should be granted,
2
and I believe these
provide adequate protection against such prejudice it faces in this
respect. In so far as witnesses’
memories’ may be less
reliable there is no reason to believe this would not affect both
parties equally. Against the
prejudice facing the employer there is
the prejudice the applicants face in not ever having the fairness
of their terminations
adjudicated on by an independent forum.
Conclusion
In
the circumstances, on an overall assessment of the various factors
mentioned in
Melane’
s case, I believe that condonation
of the late filing of the applicants’ statement of case
should be granted in this instance.
Ancillary
matters
The
employer was compelled to bring an application to force the
applicants to submit their heads of argument, after the applicants
had not complied with the court’s directive in this regard. I
see no reason why the employer should bear the costs of
that step.
This
matter has taken long enough to get to this stage and in order to
try and minimise further delays, some directions are
issued as part
of the order.
R
LAGRANGE, J
JUDGE
OF THE LABOUR COURT
Date
of hearing: 13 May 2011
Date
of judgment: 19 May 2011
For the applicants: G
S Modisakeng of Rocky Modisakeng Attorneys and Administrators of
Estates.
For the respondent:
Ruth Edmonds Attorneys
1
See
MV
Snow Delta Serva Ship Ltd v Discount Tonnage Ltd
2000(4)
SA 746 (SCA)
.
In the context of dealing with the effect of an appeal against the
discharge of an interim order, the SCA held at 752,
Para
[6]: “...Where an interim order is not confirmed, irrespective
of the wording used, the application is effectively
dismissed and
there is likewise nothing that can be suspended
.
An interim order has no independent existence but is conditional
upon confirmation by the same Court (albeit not the same Judge)
in
the same proceedings after having heard the other side
(
Chrome
Circuit Audiotronics (Pty) Ltd v Recoton European Holdings Inc and
Another
2000
(2) SA 188
(W)
at
190B - C). Any other conclusion gives rise to an unacceptable
anomaly: If an applicant applies for an interim order with notice
and the application is dismissed, he has no order pending the
appeal; on the other hand, the applicant who applies without notice
and obtains an
ex
parte
order
coupled with a rule
nisi
and
whose application is eventually dismissed, has an order pending the
appeal.” (emphasis added)
2
See
for example
Equity Aviation Services (Pty) Ltd v Commission
for Conciliation, Mediation & Arbitration & others
(2008)
29
ILJ
2507 (CC)
at 2526,[43], and
National
Union of Metalworkers of SA & others v Edelweiss Glass &
Aluminium (Pty) Ltd
(2010) 31
ILJ
139
(LC)
at 158-160, paras [80] –[89].