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[2011] ZALCPE 5
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Mbolo v Magwa Enterprise Tea (Pty) Ltd (P402/10) [2011] ZALCPE 5 (18 April 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
PORT
ELIZABETH
CASE
NO. P402/10
In
the matter between:
NKOSINATHI
JOHNSON MBOLO
…..........................................
Applicant
and
MAGWA
ENTERPRISE TEA (PTY) LTD
…..............................
Respondent
JUDGMENT
LALLIE AJ
Introduction:
[1] The applicant seeks an order declaring the respondent’s
refusal to increase his salary during the 2009 general salary
increment as unfair discrimination.
Background facts:
[2] The applicant started working for the respondent’s
predecessor as a general worker in 1989. In 1992 he was promoted to
the position of a boiler attendant. In 1997 he became a liaison
officer and was remunerated as an employee on grade C-3. When the
role of liaison officer was done away with owing to the introduction
of a human resources department, the applicant was redeployed
to the
boiler room in May 2002. His terms and conditions of employment
including his salary were not affected. In a letter dated
18 December
2002 the applicant was appointed as a withering assistant.
[3] It is common cause that ownership of the Magwa Tea business
changed from time to time. When the business was taken over by
the
respondent from Mgwa Tea (Pty) Ltd, the applicant was one of the
employees the respondent inherited. He was already remunerated
as an
employee on grade 3-C.
[4] In August 2009 the respondent gave its employees including those
on grade C-3 a general salary increment. The applicant did
not
receive the salary increment and he lodged a grievance. The grounds
for his grievance were that the respondent’s refusal
to extend
the salary increment to him was unfair treatment, discrimination and
an unfair labour practice. The respondent reacted
to the grievance by
telling the applicant that the reason for its refusal to extend the
increment to him was that he was earning
double the remuneration of
other boiler assistants as a result of having been incorrectly graded
by the respondent’s predecessor.
The respondent further
informed the applicant that its policy was equal pay for equal work.
[5] The applicant found the respondent’s response unacceptable
and referred an unfair discrimination dispute to the Commission
for
Conciliation Mediation and Arbitration (the CCMA). On 20 November
2009 the CCMA issued a certificate of the non-resolution
of the
dispute. The applicant launched this application which contained his
condonation application on 12 July 2010. The respondent
opposed both
the main and condonation applications.
Condonation of the late filing of the this application
[6] No time limit has been set by the Employment Equity Act 55 of
1998 (the EEA) within which disputes based on discrimination
should
be referred to the Labour Court. However in
NEHAWU obo Mofokeng &
others v Charlotte Theron Children’s Home
[2004] 10 BLLR
979
(LAC) it was decided that the EEA incorporates section 136 (1) of
the Labour Relations Act 66 of 1995 (the LRA) by reference. Disputes
should therefore be referred to the Labour Court within 90 days from
the date on which a certificate for the dispute to be referred
to
arbitration is issued.
[7] The applicant filed his application more than 4 months late. In
determining whether the applicant has made out a proper case
for
condonation I have considered that counsel for the applicant sought
to rely on
Silber v Ozen Wholesalers
1954 (2) SA 345
(A) where
it was decided that a party seeking condonation had at least to
furnish an explanation for its default sufficiently full
to enable
the court to understand how it really came about, and to assess his
conduct and motives.
[8] The explanation furnished by the applicant is that he resides and
works away from major cities where he could get legal assistance
and
advice. When he could not find the appropriate legal assistance in
his home town he had to travel to Mthatha where he found
and
consulted with his attorneys of record during the first week of
February 2010. After the consultation it became difficult for
him to
attend a follow up consultation owing to distance and financial
constraints. He further explained that from the first week
of March
the respondent’s employees embarked on a strike which affected
his ability to travel to Mthatha as the respondent
invoked the no
work no pay policy.
[9] The applicant’s explanation shows that when he consulted
with his attorneys in February 2010 the 90 day period in which
he
should have filed his papers at the Labour Court was about to expire.
The strike started after the 90 day period had elapsed.
The applicant
knew or should reasonably have known on 20 November 2009 when he
received the certificate of the non-resolution of
his dispute that he
would need money for legal fees if he wanted to pursue the dispute at
the Labour Court. At the end of February
2009 the applicant received
his full grade C-3 employee remuneration. He gave no reason for not
affording to travel to Mthatha
and to pay legal fees from 20 November
2009 to the end of February 2010.
[10] According to the explanation the applicant furnished the strike
by employees of the respondent started during the first week
of March
2010. He does not disclose when it ended. He consequently did not
disclose when his financial problems came to an end.
The applicant
gave no explanation for the delay from the second week of March to 12
July 2010. He effectively gave no explanation
for almost the entire
period of the delay.
[11] The applicant’s explanation that the delay in referring
this matter to the Labour Court was due to financial difficulties
is
inadequate and unacceptable. It is insufficient and fails to enable
me to understand how it really came about. I therefore conclude
that
the applicant had no valid reason for referring his case late. The
Labour Appeal Court has expressed the importance of the
explanation
for the delay by finding in a numbers of cases that where the
explanation for the delay is unacceptable the prospects
of success
become irrelevant. See
NUM & others v
Western Holdings
Gold Mine
(1994) ILJ 610 (LAC) and
Mgobhozi v Naidoo NO &
others
[2006] 3 BLLR 242
(LAC).
[12] Arguing for the grant of the condonation application, counsel
for the applicant relied on
Melane v Santam Insurance Co Ltd
1962
(4) SA 531
(AD) where it was stated that factors to be consider in
deciding condonation applications include the degree of lateness,
explanation
thereof, prospects of success and importance of the case.
An objective conspectus of all these factors was found to be
necessary
in making the determination. The degree of lateness is
about 4 months. I have already found that the explanation for the
lateness
was unacceptable. The applicant’s founding affidavit
is silent on his prospects of success and the importance of the case.
Even on this test the application for condonation cannot succeed.
[13] I accordingly grant the following order:
The application for condonation of the late filing of this
application
is dismissed with costs.
(b) The main application is dismissed with costs.
LALLIE A J
Date of hearing : 2 March 2011
Date of judgment : 18 April 2011.
Appearances:
For the Applicant : Adv Luzipo
Instructed by : Zolani Gwama Attorneys
For the Respondent : Adv Wade S.C.
Instructed by : Chris Baker & Associates