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[2011] ZALCD 36
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Pillay and Another v Durban Metrorail (D298/01) [2011] ZALCD 36 (30 August 2011)
7
REPUBLIC OF SOUTH AFRICA
Not Reportable
the labour court of South Africa, DURBAN
judgment
CASE
NO: D298/01
In the matter between:
S PILLAY & K PILLAY
Applicants
and
DURBAN METRORAIL
Respondent
Heard:
30 AUGUST 2011
Delivered: 30 AUGUST 2011
JUDGMENT
___________________________________________________________________
REDDY AJ
Introduction
This is an
ex tempore
judgment. The applicant is S Pillay.
This is an application on two fronts. The first is an application
for a rescission of an
order issued by this Court on 26
November 2010 when the trial was set down for hearing and the
applicant did not appear. The referral was accordingly dismissed.
That application is coupled with an application for condonation.
Background facts
The applicant was a temporary employee who was placed with the
respondent by a temporary employment service in 1999. She occupied
the post of Administrative Official.
She was subsequently dismissed for misconduct. After referring an
unfair dismissal dispute to the CCMA, she was awarded reinstatement.
Shortly after the reinstatement award was handed down, the
respondent advertised the post of Administrative Official. This was
a permanent post. The applicant applied for the post and wrote the
applicable test that candidates for the post had to write.
She was not shortlisted or interviewed. She was not appointed to the
post.
The applicant alleges that the other candidates who did not have
requisite qualifications or the experience that she had were
appointed to the post. In addition, the applicant alleges that the
respondent acted with nepotism when appointing the candidates
that
it did. The applicant alleges that she was excluded from appointment
because the respondent, despite the existence of the
arbitration
award in her favour, believes that the applicant is guilty of the
misconduct for which she was dismissed.
The applicant referred an unfair discrimination dispute to the CCMA,
which resulted in the matter being referred to this Court.
The applicant’s referral to this Court is one based on
discrimination in terms of section 6 and 9 of the
Employment Equity
Act 55 of 1998
.
Condonation application
The delay
The rescission application is 73 days late.
Explanation for the delay
[10] The discrimination referral was set down for hearing on 26
November 2010.The applicant did not attend Court on that day and
the
matter was dismissed.
[11] I do not intend repeating the detail of the many grounds for the
explanation for the delay, save to record that the explanation
by the
applicant covers various grounds including being represented by
various legal representatives, not having finances to fund
litigation, waiting for Legalwise to assist her, Legalwise
withdrawing its cover for her legal fees, the Christmas break that
intervened after the dismissal by this Court of the referral and that
she is a lay person and was unaware of the time periods for
the
filing of the rescission application.
[12] The applicant only became aware of the matter having been
dismissed well after 26
th
November 2010 and at the time
that she became aware there was the Christmas break from the middle
of December to the middle of
January which had impeded any action by
the applicant or her respective attorneys.
[13] The applicant being a lay person was not aware of the legal time
limit of 15 days from the date of 26
th
November, to apply
for rescission. She was at this time no longer represented by an
attorney. Although the applicant was employed
at this time her
husband was not and she could not afford to instruct attorneys
immediately. She faced various difficulties in
travelling to Court
and to her erstwhile attorneys. The applicant was also not allowed
time off work to attend to this matter.
[14] The respondent submitted that the delay is substantial, it is
more than three times the number of days that are required for
a
recission application to be brought and that many areas or many
periods in the entire trajectory of things have not been explained.
For this reason the respondent submitted that it was not necessary
for the Court to look at the applicant’s prospects of
success
in the main matter.
[15] Whilst there are time periods which are not fully explained, I
do not accept that the delay is so substantial so as to disallow
me
to consider the applicant’s prospects of success or other
relevant principles when deciding the condonation application.
This
Court is bound by the principle of fairness when deciding matters
which, having regard to the obvious hardships the applicant
faced in
litigating this matter, requires that all the principles must be
considered by me before deciding the application for
condonation.
Prospects of success
[16] Insofar as prospects of success are concerned, the applicant
alleges that she was discriminated against in terms of
section 6
of
the
Employment Equity Act on
arbitrary grounds and by way of
illustration lists a few examples of these. The first ground was that
she had scored higher than
the incumbent in the test but the
applicant was not short-listed and that there is no substantive
explanation by the respondent
for not allowing the applicant to
proceed to the second stage of being short-listed and being
interviewed.
[17] The opposition to this ground is two fold. It was made in reply
and secondly the respondent alleges that the applicant failed
the
test .In the replying papers, the applicant alleges that she scored
69% in her test and the incumbent scored 60%. This issue
is disputed
and the respondent, as correctly submitted by Mr Shangase, did not
have an opportunity to reply thereto. Even if I
were not to consider
this ground, this would be a factual dispute before this Court and
evidence should be led to determine, one,
how the scoring applied,
two, whether the scoring was applied correctly and, three, whether
the applicant actually scored higher
than the incumbent.
[18] The second ground is based allegedly on a belief by the
respondent that the applicant was somehow involved in a robbery that
took place at the respondent’s premises and for which she was
dismissed. Her dismissal was challenged and she was reinstated.
The
applicant’s allegation in this regard is that the respondent
harboured some ill feelings towards her for having an award
against
it and rather than review the award, the respondent has prevented her
being appointed to the post. It is submitted by the
applicant’s
attorney that this too is an arbitrary ground. To my mind this is
something that, if the applicant proves was
a real bar to her being
appointed to the post, would constitute grounds for arbitrary
conduct. Such evidence must be tested through
cross-examination by
witnesses of both the applicant and the respondent.
[19] The next ground is based on nepotism. My view is that there is
not enough made out in the papers that the incumbent was in
fact
related to those staff who were doing the hiring, however the
applicant is entitled to lead relevant evidence on this issue
to
establish her case. The applicant need not prove her case on the
papers in the condonation application. The trial court will
be in the
best position to determine if the applicant has discharged the onus
on this issue.
[20] In defence of the appointment of the incumbent, the respondent
has stated that there was a shortage of white females at that
time
and it therefore appointed the incumbent. This issue, as well, to my
mind requires information and details as to the demographics
of the
employees at the time of the advert and whether in fact the incumbent
fell within a group of employees where there was a
shortage of white
females. The respondent would be entitled to prove that this was in
fact the case when justifying the appointment
of the incumbent.
[21] The next ground is that one of the requirements for the post was
the possession of a matric certificate. It is alleged by
the
applicant that other candidates who did not have a matric certificate
were shortlisted, interviewed and placed in positions.
The respondent
alleges that this is not a material factor as all people who applied
for the post were given an opportunity to write
the test irrespective
of whether they had matric certificates or not.
[22] A further response by the respondent to this issue is that it is
not recorded in the applicant’s statement of case.
Even if this
ground is not considered by this Court in this application, the
applicant may amend her statement of case to record
this ground. I
will however not place any reliance on this ground in deciding this
matter.
[23] I am of the view that those issues raised by the applicant and
the respondent’s response thereto require evidence to
be led
for this Court to arrive at a proper finding whether the applicant
was discriminated against and whether such discrimination
was unfair.
Some grounds raised by the applicant have sound prospects of success
whilst others are not so sound, but these are
issues which cannot be
determined on papers. They require documentary proof and verbal
evidence to be led.
[24] I accept that the matter is important to both parties. I also
accept that there is a public interest in having this type of
matter
heard in that the respondent is a parastatal and it has perhaps a
greater responsibility to comply with non-discriminatory
practices in
our democratic society than private entities.
[25] Insofar as prejudice is concerned, the main opposition to the
condonation in respect of prejudice is that there are many witnesses
who no longer work for the respondent and it will be difficult for it
to prove its case. It has not been submitted that in respect
of those
employees who no longer work for the respondent, it does not have a
record of their addresses or that they are incapable
of being traced.
Witnesses can be traced, can be searched for and found and they
certainly can be subpoenaed. The applicant submitted
that she will
bring as witnesses those employees who like the applicant, initially
contested their non-appointment. They were subsequently
appointed.
The respondent’s responsibility in getting a whole host of
witnesses is reduced by the applicant’s bringing
some of those
witnesses herself.
[26] Having considered all those principles cited in
Melane vs
Santam
Insurance Company Limited
1962 (4) SA 531
AD, I am
satisfied that the facts and the law support the granting of
condonation.
Rescission application
[27] In respect of the rescission application, the applicant must
show sufficient cause for the default. There are two grounds
that
must be satisfied before a party is said to have satisfied sufficient
cause: there must be a reasonable and acceptable explanation
for the
default on 26 November 2010 and that on the merits the applicant has
a
bona fide
cause of action which carries some prospects of
success.
Reasonable and acceptable explanation for the default
[28] The explanation by the applicant is on the basis that it falls
wholly within the erstwhile attorneys’ lap in that the
attorneys, who represented the applicant at that time, did not inform
the applicant of the fact that the matter had been set down
for 26
November 2010 and neither had that firm informed the applicant that
the firm was withdrawing as her attorneys of record
for lack of
funds. It is common cause that Legalwise was a conduit for legal
services and the applicant’s contract with Legalwise
had
expired. It seems from the papers that the applicant’s
erstwhile attorneys, Jayshree Moodley Attorneys, sent by registered
post a copy of the notice of set down. The applicant claims never to
have received that notice. One would expect attorneys, who
know the
importance of set downs, especially in light of withdrawing as
attorneys of record, to have made every effort in letting
the client
know as soon as possible, after being aware that the matter is set
down, that, one, it is set down, and, two, they were
no longer going
to represent the client. To my mind,
prima facie
there is a
huge degree of responsibility on the erstwhile attorneys to have done
something more than just send a letter in the absence
of any verbal
communication with the applicant to let her know specifically that
her matter was set down. This is especially so
in light of the fact
that she would not be represented on that day. I agree with the
applicant’s submissions that she is
not wholly responsible for
not being in court on 26 November 2010 and that a large portion of
the blame for her not being there
must lie with her erstwhile
attorneys.
Prospects of success
[29] I am satisfied that the applicant has a
bona fide
cause
of action.
[30] I have dealt with the applicant’s prospects of success in
the condonation application. For these reasons I am inclined
to grant
the rescission application. The interests of justice require that the
evidence be tested so that the matter is properly
aired. This matter
is approximately 10 years old. The respondent, if it can properly
justify the applicant’s non-appointment,
will not be prejudiced
by the hearing of the matter.
[31] Having considered all the factors that are applicable, and being
guided by the interests of justice, this matter requires
that the
condonation application and the rescission application be granted. In
the circumstances, I make the following Order:
1 The application for condonation for the late filing of the
application
for rescission is granted.
2 The Order granted on 26 November 2010 dismissing the referral is
rescinded;
3 There is no order in respect of costs.
__________________
Reddy AJ
APPEARANCES
FOR THE APPLICANT: Mr Mkwibiso of Shepstone & Wylie
FOR THE RESPONDENT: Mr Shangase of A P Shangase & Associates