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[2011] ZALCJHB 99
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Mnisi and Others v Extrata Alloys South Africa (Pty) Ltd - Mtotolo (Lebowa) (JS596/09) [2011] ZALCJHB 99 (17 November 2011)
9
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH
AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case No: JS596/09
PHILLIP KATISI MNISI AND 32 OTHERS
…...................................................
Applicant
And
EXTRATA ALLOYS SOUTH AFRICA (PTY)
LTD
–
MOTOTOLO (LEBOWA)
….......................................................................
Respondent
Date of hearing: 01 November 2011
Date of judgment: 17 November 2011
Summary
: Condonation for the
late filing of the statement of case. Explanation weak no need to
consider prospects of success. No special
circumstances justifying
deviation from the established principles.
JUDGMENT
Molahlehi J
Introduction
This is an application for
condonation for the late filing of the statement of case. The
statement of case concerns the claim
by the applicants that they
were dismissed for participating in a strike which they say they
never did.
Background Facts
The thirty three applicants in this
matter were dismissed by the respondent on 27 October 2008. The
applicants were dismissed
for allegedly participating in an
unprotected and illegal industrial action during October 2008. The
applicants deny having embarked
on the alleged industrial action and
contend that on 24 October 2008, when they arrived at the workplace
some of them could not
find the drills that they work with. A
delegation was then sent to management to find out what was the
reason for the disappearance
of their drills. They say that no
proper explanation was given to them.
The applicants say that on 27 October
2008, when they arrived at work, they were refused permission to
clock in for duty and were
told that they were dismissed. The
applicants lodged an internal appeal against their dismissal but
were unsuccessful. The appeal
having failed and the applicants being
unhappy with their dismissal, referred an alleged unfair dismissal
dispute to the CCMA
for conciliation.
The conciliation having failed to
resolve the dispute, the conciliating Commissioner issued a
certificate of outcome which directed
that the matter could be
referred to arbitration. The matter was subsequently referred to
arbitration and was enrolled for a
hearing on 1 June 2009. At the
arbitration hearing, the respondent raised a point in
limine
concerning the jurisdiction of the CCMA to arbitrate the matter as
it contended that the dispute arose from a dismissal related
to
participation in an industrial action.
On 9 June 2009, the Commissioner
issued the ruling that the CCMA did not have jurisdiction. The
statement of case was thereafter
filed with the Court.
In explaining the delay, the
applicants started by indicating that they were not assisted by the
union at the time they referred
the dispute to the CCMA. They
further say that they stated in their referral forms that they did
not know the reason for their
dismissal. They claim that they
referred the dispute to arbitration; ‘[p]urely due to lack of
knowledge and the fact that
we considered ourselves not having
participated in a strike.’ They also blame the respondent for
not correcting them at
the conciliation meeting when they said that
the reason for their dismissal was unknown.
As concerning prospects of success,
the applicants in their founding affidavit say the following; ‘[w]e
were not participating
in a strike. Therefore the respondent had no
valid reason for our dismissal.’
In its answering affidavit, the
respondent says that the applicants were amongst those who
participated in the strike action on
13 and 14 March 2008.
The respondent further says that at
the end of that strike an agreement was reached with the union
representing the applicants
that the employees would be issued with
a final written warning for participating in an unprotected strike
and the warning issued
for a period of 9 months.
The agreement further provided that
in case of any further unprotected strike action, the respondent
would issue a first and final
ultimatum. That agreement was
concluded on 9 April 2008. However, before the expiry of the nine
months period of the written
warnings and specifically on 24 October
2008, the employees embarked on a strike action.
On 27 October 2008, when the
applicants reported for duty they were issued with notices of
dismissals for participating in an
unprotected strike. In the
notices, the applicants were informed of the following:
‘
3.25.1
that they had been issued with a final written warning for
participating in unprotected industrial action during 2008;
3.25.2
their employment would terminate with effect from 27 October 2008;
3.25.3
should they have a compelling reason why the respondent should not
finalise their termination they should provide such reasons
to the
respondent in writing by no later than 15h00 on Wednesday, 29 October
2008;
3.25.4
if the applicants do not state it will lead to conformation of their
dismissal.’
On 30 October 2008, the union
addressed a letter to the respondent requesting that the dismissed
employees should be reinstated.
According to the respondent the
union requested the reinstatement on the basis that the respondent
never informed them of the
strike action by the employees.
In response, the respondent indicated
to the union that it had invited the employees to make submissions
as to why they should
not be dismissed for their conduct. The
respondent further says that despite the extension for the period
for making submissions,
the employees failed to make any submission.
The respondent further says that
instead of making submissions as to why they should not be dismissed
the employees lodged an
internal appeal which was based on the
following grounds:
‘
3.29.1
there had never been any ultimatum given; and
3.29.2
the finding that the applicants were on strike was not true as all
the Rock Drill Operators and Rock Drill Assistants did
their jobs on
24 October 2008.’
The respondent dismissed the appeal
applications for the following reasons:
‘
3.31.1
the applicants had been given a verbal ultimatum to return to work
and to commence their work activities.
3.31.2
although the applicants eventually went underground more than five
hours after the final ultimatum was given they did not
commence their
normal activities and therefore their submissions that they returned
to work is rejected; and
3.31.3
the applicants had all received a final written warning for
participating in an unprotected strike in April 2008 and that
final
written warning was still valid
.’
The principles governing
condonation
In considering whether to grant or
refuse condonation the Court has a discretion to exercise. The Court
will generally not grant
condonation unless satisfied that the
applicant has:
(a) shown that the degree
of lateness or non-compliance with the prescribed time frame is not
excessive;
(b) provided an
explanation for every aspect of the period of the lateness or the
failure to comply with time frames;
(c) shown that he or she
has prospects of succeeding or has bona fide defence when the matter
is considered in the main case;
(d) shown the importance
of the case;
(e) shown interest in the
finality of the matter and the convenience of the court; and
(g)
shown avoidance of unnecessary delay in the administration of
justice.
1
It has repeatedly been stated that
the above factors 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. The explanation and the prospects of
success carry a considerable weight in assessing whether to grant of
refuse condonation.
2
The other general principle which the
Courts have adopted is that without reasonable explanation for the
delay, or prospects of
success condonation should be refused. In
Melane v Santam Insurance
Co Ltd,
3
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.
In
National
Union of Mineworkers v Council for Mineral Technology,
4
the Court 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 and strong
prospects of success may tend to compensate for a long
delay. There
is a further principle which is applied and that is 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.
’
Evaluation
The case of the applicants is that
the cause for the delay in filing their statement of case was due to
the fact they did not
know that the reason for their dismissal was
because of the alleged participation in an unprotected industrial
action. They contend
that they referred their dispute to the CCMA
because they did not know the reason for their dismissal.
The respondent in its answering
affidavit has placed in dispute the allegation that the applicants
did not know that they were
dismissed for participating in an
unprotected industrial action. The applicants have not filed a
replying affidavit countering
the averments of the respondent in its
answering affidavit.
There are three key aspects in the
explanation of the applicants as to why the statement of case is
late which can be summarised
as follows:
The respondents’ representative
failed at the conciliation meeting to correct them about their
understanding as to the reason
for their dismissal namely that it
was because of participating in an unprotected strike.
The respondent failed on receipt of
the referral of the matter to arbitration to bring to their
attention they chose a wrong forum
in referring their dispute to
arbitration.
c) Had they known the reasons of their
dismissals after the conciliation they would have referred the matter
to the Court and not
the CCMA.
It is apparent that initially several
disputes arising from the incident related to the dismissals were
referred to the CCMA by
the individual applicants. Those disputes
were subsequently consolidated into one matter when they served
before the Commissioner.
One of the disputes which formed part of
the consolidated cases before the CCMA was referred in the name of
Tebogo Benjamin Hebula
(spelling not clear from the referral form).
In the dispute referral form of
Hebula the reason for dismissal is summarised as ‘unfair
dismissal for participating in
an unprotected strike.’ The
same applies in the referral of Nkunyesi Mhlonga. In the referral
made by the NUM obo Mabelane
and others the dispute is summarised as
‘unfair dismissal’. The features of the dispute is
summarised as follows:
‘Workers protest and went back to their
normal duty and dismissed the following no ultimatum was issued.’
In answering
the question about the procedural fairness, they say;
‘No ultimatum was issued to the workers and the union was not
informed
about the protest.’ From the perusal of the record,
there appears to be only two cases where reference is not made to
the
reason for dismissal being associated with strike action.
The applicants have not disputed the
letter addressed to the CCMA’s convening Commissioner and
copied to the applicants
via Mr Philip (Katisi) Mnisi. The letter,
which is undated and seem to have been sent to the CCMA soon after
the conciliation
meeting, records as follows:
‘
This
case was conciliated on 5 December 2008 in Sabie under Commissioner
Adv J.C.B Schoeman. During the conciliation process the
reason for
the Dismissal (sic) were discussed, namely they were all dismissed
for “
Participating
in unprotected industrial action”.
The
applicants have now referred this
matter
for arbitration (see CJP1). This is an ill referral as the CCMA does
not have jurisdiction to arbitrate this matter in terms
of
section
191(5)
(b) (iii) of the
Labour Relations Act 66 of 1995
. This say
that the case must be referred to the Labour Court.’
It would appear from correspondence
in the file that the contact person was Mr Mnisi and his contact and
post office number is
PO Box 1429, which is also reflected in the
CCMA correspondence.
It is common cause that the
applicants lodged an internal appeal against their dismissal on 3
November 2008. Except for mentioning
the outcome of the appeal in
one sentence, the applicants say; ‘No ultimatum was issued to
workers and the union was not
informed about the protest.’
The respondent in their answering
affidavit deals with both the grounds for the appeal and the reasons
for its outcome. The respondent’s
allegations have not been
challenged and disputed by the applicants. It needs to be mentioned
that even during argument this
issue was not touched upon by the
applicants’ representative.
The respondent in their answering
affidavit says that the grounds for the internal appeal as set out
by the applicants were the
following:
‘
3.29.1
there had never been any ultimatum given.
3.29.2
the finding that the applicants were on strike was not true as all
the Rock drill operators and the Rock drill assistants
did their jobs
on 24 October 2008.’
The respondent further says that the
applicants were each given the letter wherein the reasons for
dismissing the appeal are set
out as follows:
‘
3.31.1 The
applicants had been given a verbal final ultimatum to return to work
and to commence their work activities
3.31.2 Although the applicants
eventually went underground more than five hours after the final
ultimatum was given they did not
commence their normal activities and
therefore their submission that they returned to work is rejected.
3.31.3 The applicants had all received
a final written warning for participating in an unprotected strike in
April 2008 and that
final written warning was still valid.’
The excuse for not
knowing the appropriate forum to refer the dispute,
in
my view,
is
not sustainable once the Commissioner has issued a ruling indicating
that the CCMA did not have jurisdiction. After the ruling
the
applicants further delayed filing their statement of case by some 58
days. This delay which in my view is not insignificant
is not
explained by the applicants.
In my view the explanation is clearly
unsatisfactory. The delay in this matter must be understood in the
context that the certificate
of outcome was issued on 5 December
2005 and the applicants filed their defective statement of case on 1
July 2009, which is
some 139 days late.
It is apparent
from the above discussion,
regarding
the background facts of this matter,
that
the credibility of the explanation for the delay given by the
applicants is highly questionable. In other words whilst seeking
an
indulgence,
they
have failed to take the Court into their confidence by giving a
version which in all probabilities is incorrect.
The other difficulty which the
applicants have with their case relates to the period after the
jurisdictional ruling was issued.
The explanation that they did not
know the reason for their dismissals fell away once the certificate
of outcome was issued.
The jurisdictional ruling made it very clear
that the correct forum to consider their matter was the Labour
Court. The jurisdictional
ruling was issued on 1 June 2008 and
statement of case was properly referred to the Court on 6 August
2009, some 54 days late.
The delay after the receipt of the
jurisdictional ruling which clarified to the applicants the correct
forum to which their disputes
ought to be referred to is not
explained. The authorities are very clear that in an application for
condonation each period of
the delay must be explained. The
consequences of failure to provide an explanation for any of the
period of delay is that the
Court need not consider the issue of
prospects of success in its assessment as to whether condonation for
the late filing of
the statement of case should be granted. Thus
failure to explain any period of the delay disqualifies the
applicants from receiving
condonation.
In making the
above finding I have also considered the issue of whether it would
be in the interest of justice to grant condonation
despite the
inadequate or absence the explanation for the delay. There exist no
special circumstances in this matter in terms
of which I could say
that the interest of justice dictate that condonation be granted.
5
I have also not
been persuaded on the facts and the circumstances of this matter
that despite that inadequate explanation the
prospects of success
should be considered. Accordingly, the applicants’ application
stands to fail. I do not however belief
that costs should follow the
results.
Order
In the premises
the applicants’ application for the late filing of their
statement of case is dismissed with no order as
to costs.
MOLAHLEHI J
Judge of the Labour Court of South
Africa.
Appearances:
For the applicant: Mr C. Mogane of
Mohlaba & Moshoana Inc.
For the respondent: Mr D. Masher of
Bell Dewar Inc.
1
See
Foster v Stewart Scott Inc
(1997) 18
ILJ
367 (LAC).
2
See
Saraiva Construction
(
Pty
)
Ltd v Zululand
Electrical and Engineering Wholesalers
(
Pty
)
Ltd
1975 (1) SA 612 (D) and
Chetty v Law Society
,
Transvaal
1985 (2) SA 756 (AD) at 765 A–C).
3
1962 (4) SA 531
(A) at 532 C–F.
4
[1999]
3 BLLR 209
(LAC) at para 10.
5
In
NEHAWU obo Mafokeng and Others v Charlotte Theron Children’s
Home
[2004] 10
BLLR
979
(LAC), the Court held that there
are instances where in an exceptional case condonation may be
granted despite the substantial
delay and the inadequate
explanation. See also
South African Post Office Ltd v Commission
for Conciliation, Mediation and Arbitration and Others
[2011]
ZALAC 16
(3 August 2011).