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[2011] ZALCJHB 234
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BMEAWU and Others v Bosun Brick (Pty) Ltd t/a Smart Stone Pretoria (J1376/09) [2011] ZALCJHB 234 (23 August 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: J1376/09
In the matter between:
BMEAWU First Applicant
JOHN PETRUS SITHOLE AND 16 OTHERS
...........................
Second
to further Applicants
and
BOSUN BRICK (PTY) LTD t/a
SMART STONE PRETORIA
..................................................................................
Respondent
JUDGMENT
FRANCIS J
Introduction
1. This is an application for condonation for the late filing of the
applicants’ statement of claim. The application was
opposed by
the respondent.
The background facts
2. The applicants were employed by the respondent. Their services
were terminated by the respondent for its operational requirements
on 1 July 2008. They were at the time of their dismissals, members
of the National Construction, Building and Allied Workers
Union
(NACBAWU). On or about 15 July 2008 NACBAWU on behalf of the
applicants referred an unfair dismissal dispute to the Commission
for Conciliation, Mediation and Arbitration (the CCMA). A
conciliation meeting took place on 11 August 2008 and a certificate
of outcome was issued on 11 August 2008.
3. On or about 30 August 2008 a second dispute relating to the same
dismissal was referred to the CCMA by the National Union
of
Democratic employees of South Africa (NUDESA) on behalf of the
applicants. A second conciliation meeting took place on 19
March
2009 and a second certificate was issued on the same day indicating
that the dispute remained unresolved.
4. The Builiding, Motor, Engineering and Allied workers Union
(BMEAWU) on behalf of the applicants served and filed a statement
of
claim on or about 7 July 2009. The respondent filed a statement of
response on 20 July 2009 and raised a point
in limine
. The
respondent contended that the applicants referral should have been
served on or about 10 November 2008 from the first referral
and was
therefore eight months out of time. It was further contended that
should the second certificate be taken into account,
the 90-day
period expired on 17 June 2009 and the referral was made twenty days
late. It stated that a proper condonation application
should be
made.
The condonation application
5. The applicants filed the following application for condonation:
“
I, the Undersigned,
Oupa Mtshweni
Do hereby make oath and say:
1.
I am adult male official of Building, Motor, Engineering and
Allied Workers Union (“BMEAWU”).
2.
The facts contained herein falls within my personal knowledge
unless the contrary is stated or appears from the context and are
to
the best of my knowledge both true and correct.
3.
DEGREE OF LATENESS
The Application is 20 days late. It is submitted that the period
of delay is not excessive.
4.
EXPLANATION FOR THE DELAY
4.1
The Second Applicants in this matter were previously represented
by the National Union of Democratic Employees of South Africa
(“NUDESA”) at the conciliation stage.
4.2
The General Secretary of NUDESA. Johan Madisha had in late 2009
approached our office to inform us that NUDESA was de-registered
and
that they needed us to take over their existing membership, staff
and pending cases at different tribunals. This process
took some
time before we would agree and efforts to audit and transfer
membership, staff and cases made the process longer.
4.3
BMEAWU also had to consider which cases would need legal
representation and costs implications. Whilst we were able to find
legal
representation in other matters, were unable to get one in
this matter due to high costs implications. We then had to prepare
and file this matter and this took time as Consultations with
NACBAWU had to be conducted I on order to appraise ourselves with
the matter.
5.
PROSPECTS OF SUCCESS
The Second Applicants have good prospects because their dismissal
is substantively and procedurally unfair. In this regard it is
respectively submitted that the paragraph 4 to 5 of the Statement of
Case filed with this Honourable Court should be read as
if
specifically incorporated herein. The Respondent was not bona fide
and treated the consultation process as a mere formality
and made
little or no attempt to seek consensus with the other consulting
party.
6.
PREJUDICE TO THE PARTIES
I submit that the Second Applicants will suffer great prejudice
if condonation is not granted as it will deny them the opportunity
to have this matter scrutinized by the Honourable Court. The Second
Applicants had already been prejudiced by the process of
replacing
representatives for reasons beyond their control.
In the circumstances, I pray that an order condoning the late
referral of this application be granted.”
7. The condonation application was opposed by the respondent. The
respondent in its answering affidavit pleaded that the applicants
were dismissed on 1 July 2008 and that a dispute regarding the
fairness of such dismissal was referred to the CCMA by NACBAWU
on
their behalf on 15 July 2008. A certificate of outcome was issued by
the CCMA on 11 August 2008. For unknown reasons a second
dispute was
referred by NUDESA to the CCMA on 30 August 2008. The second
certificate of outcome was issued on 19 March 2009.
The statement of
claim was served on 7 July 2009. The
dies
started running
from the date of first certificate which was eight months late.
Should it start running from second certificate
it was twenty days
late. It was pointed out that at the first conciliation the
applicants were represented by NACBAWU and they
had failed to state
what steps it took subsequent to the conciliation. It was stated
that the applicants were now being represented
by the third trade
union. It was further stated that the deponent in the condonation
application was not involved in the consultations
and could not
dispute that the respondent had followed an exhaustive consultation
process.
Analysis of the facts and arguments raised
8. The leading case dealing with condonation application is
Melane
v Santam Insurance Co Ltd
1962(4) AD where the following was
said at page 532 paragraphs C to D:
“
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 decision,
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
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 aforegoing clearly emerge from
decisions of this Court, and therefore I need
not add to the
evergrowing burden of annotations by citing the cases”.
9. The applicants had to deal with the following facts in its
application for condonation namely:
9.1 The degree of lateness;
9.2 The explanation for the lateness;
9.3 Prospects of success; and
9.4 The importance of the case.
10. The first issue that arises in this matter is how late the
application is. It is common cause that the applicants were at
the
time of their dismissals members of NACBAWU. It appears from the
documents filed by the respondent that it had embarked on
a
retrenchment exercise and invited NACBAWU to take part in the
consultation process. The applicants’ services were terminated
on 1 July 2008. NACBAWU on behalf of the applicants had on 15 July
2008 referred an unfair dismissal dispute to the CCMA. In
the
referral to the CCMA it was contended that the dispute arose on 1
July 2008. The dispute was summarised as a “dispute
or alleged
unfair dismissal (based on operational requirements) relating to an
alleged discriminative selection criteria”.
It contained a
list of its members as at 1 July 2008 which included all the
applicants who are listed in the list contained in
the statement of
claim. The dispute was conciliated on 11 August 2008 and a statement
of outcome was issued on the same day.
11. The applicants stated in the condonation application that the
statement of claim was filed 20 days late. They have stated
in
paragraph 4.1 of the founding affidavit that they were previously
represented by NUDESA at the conciliation stage. It is common
cause
that the second conciliation meeting took place on 19 March 2009.
The applicants’ contention that the statement of
claim was
filed 20 days late cannot be correct. The respondent had raised a
point
in limine
in its statement of response. In its
answering affidavit it referred to the two disputes referred for
conciliation by both NACBAWU
and NUDESA and the two certificates
that were issued. The applicants should have dealt with the two
certificates in its replying
affidavit but chose not to file a
replying affidavit.
12. None of the applicants who were members of NACBAWU at the time
of their dismissals filed any affidavits stating that they
had
either resigned from NACBAWU or that NACBAWU had no mandate when it
referred the dispute to the CCMA for conciliation. It
is also not
stated when exactly they ceased to be members of NACBAWU and when
they became members of NUDESA.
13. The statement of claim should have been filed on or before 12
November 2008. It was only filed on 7 July 2009 which is about
eight
months late. The period is excessive.
14. The second issue that needs to be determined is the explanation
for the delay. It is common cause that a second referral
was made to
the CCMA on 30 August 2008 by NUDESA on behalf of the applicants. It
contains a list of seventeen employees whose
dispute had also be
referred to the CCMA by NACBAWU. It is stated that the applicants
were dismissed on 31 July 2008 and the
dispute is described as a
retrenchment. A certificate was issued dated 19 March 2009 stating
that the dispute remained unresolved
as at 19 March 2009.
15. As stated previously after the applicants had filed a statement
of claim, the respondent filed a statement of response and
raised a
point
in limine
raising the issue of the two certificates of
outcome. The applicants brought a condonation application and did
not deal at all
with the first referral but only with the second
referral. This point was again raised in the answering affidavit and
the applicants
did not deem it necessary to deal with this in a
replying affidavit. It did not file a replying affidavit. The
applicants should
have dealt with what was raised by the respondent
in the statement of response and also in the condonation application
about
the two certificates that were issued. The applicants for best
reasons known only to them decided to ignore what was contained
in
the statement of response and the answering affidavit. They should
have dealt with this in their condonation application.
They should
have provided an explanation why if NACBAWU had referred an unfair
dismissal dispute to the CCMA on 15 July 2008
and a certificate was
issued on 11 August 2008 they had referred the dispute late. They
provided no reasons whatsoever why the
matter was not referred to
this Court before 10 November 2008. The only explanation that they
gave was what is contained in paragraphs
4 of the founding
affidavit. It is not stated that they had terminated NACBAWU’s
mandate and if so when it was. I would
have expected that the
applicants’ new representatives would have approached NACBAWU
and had made the necessary enquires
about it. It is not stated when
the applicants became members of NUDESA.
16. There is simply no explanation given why there were two
referrals to the CCMA. The applicants did not deem it necessary to
deal with this issue despite it being brought to its attention. All
that it has done was to give the explanation tendered in
paragraph 4
of the founding affidavit. There was clearly correspondence between
NACBAWU and the respondent about the consultation
process. They
referred a dispute on their behalf. It is also not clear why NUDESA
had referred a referral on behalf of the applicants.
It is unclear
when they become members of NUDESA. It is not the applicants case
that NACBAWU lacked a mandate when it referred
their dispute to the
CCMA. It is also not clear when NUDESA ceased to be a registered
trade union.
17. The applicants have simply ignored the first referral and have
in the circumstances given no explanation why the dispute
was
referred late. There is simply no explanation given for the
eight-month delay.
18. On the prospects of success it is clear that the respondent had
been consulting with NACBAWU. This much is clear from the
correspondence attached to the respondent’s papers. The
respondent had pointed out in its opposition that the deponent
one
Oupa Mtshweni who described himself as a male official of BMEAWU was
not present at nor involved in the consultation process
and could
not confirm same. The respondent stated that it followed an
exhaustive consultation process before dismissing the individual
applicants. The applicants did not file any confirmatory affidavit
by any of the officials of NACBAWU who took part in the consultation
process. They have failed to show that they have any prospects of
success in this matter.
19. The application has failed to make out a proper case for
condonation. The application stands to be dismissed.
20. I do not believe that this is a matter where costs should follow
the result.
21. In the circumstances I make the following order:
21.1 The application is dismissed.
21.2 There is no order as to costs.
FRANCIS J
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
FOR APPLICANTS : J TJIKANE - UNION OFFICIAL
FOR RESPONDENT : ATTORNEY D W MORGAN
DATE OF HEARING : 11 AUGUST 2011
DATE OF JUDGMENT : 23 AUGUST 2011