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[2013] ZALCJHB 118
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Zitha v National Institute for Higher Education and Another (JS 622/12) [2013] ZALCJHB 118 (12 June 2013)
Not Reportable
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
case
no: JS 622/12
In the matter between:
ZAKHELE ALEX TUMMY ZITHA
Applicant
and
NATIONAL INSTITUTE FOR
HIGHER EDUCATION
First
Respondent
MINISTER FOR HIGHER
EDUCATION AND TRAINING
Second
respondent
Heard: 11 June 2013
Delivered: 12 June 2013
Summary:
(unfair retrenchment claim-in limine issues).
JUDGMENT
LAGRANGE, J
Introduction
[1] Mr Zitha, the applicant in the main matter, has referred a claim
of unfair dismissal for operational reasons to court. The
first
respondent, the National Institute for Higher Education (Mpumulanga),
raised three preliminary objections to the applicant’s
claim.
The applicant also filed a notice of bar on the first respondent as
it was late in filing its heads of argument, which were
filed on the
same day the notice of bar was received. Strictly speaking, the
notice of bar was not a true notice of bar since it
did not put the
first respondent on terms to file the heads of argument failing which
it could not be entitled to persist with
its position in the matter.
In any event, since the applicant had the benefit of the first
respondent's heads since 3 June 2010,
he has not been prejudiced in
the preparation of his argument and I agreed to accept the heads of
argument filed and to permit
the first respondent to argue the
preliminary issues.
Condonation
[2] The applicant, an accountant, did not refer his unfair dismissal
claim in the form of a statement of case as required by rule
six of
the labour court but filed by way of an affidavit. Although, the
first respondent could have refused to respond to the applicant’s
claim until such time as he filed a statement of case which complied
with the rule, it treated the affidavit as a statement of
case and
respondent thereto. Although it is debatable whether it needed to,
given that the applicant had not complied with the
the correct
procedure himself, the first respondent applied for condonation for
filing its answering affidavit 18 days after the
10 day period
permitted in the rules for filing an answering statement. I am
satisfied that in so far as condonation is necessary,
the applicant's
delay is not significant and that the applicant suffered no prejudice
as a result of the delay. If anything, by
not taking an immediate
objection to the incorrect form of the applicant’s referral,
the first respondent did not rely on
this to stall the process, but
advanced the matter further. Furthermore, for the reasons set out in
dealing with the merits of
the first respondent’s preliminary
objections I am satisfied that at least, in that respect, the first
respondent has good
prospects of success. In the circumstances the
first respondent’s late response is condoned.
Preliminary objections
Jurisdiction
[3] The first issue is that, at the CCMA the applicant withdrew the
dispute on which his current referral is based. According to
the
first respondent, the commission had advised that his dispute
appeared to be one about the enforcement of a settlement agreement
concluded on 18 October 2011 which was a matter the CCMA could not
arbitrator over and that he should refer the matter to this
court. In
fact, what the applicant did was to refer an unfair retrenchment
claim to this court and not an application to enforce
the settlement
agreement.
[4] Since his purported referral was made only in July 2012, whereas
the certificate of outcome was issued on 19 November 2011,
even if
his referral of an unfair dismissal claim could be entertained, it is
late and the applicant has not applied for condonation
for not filing
the referral within 90 days of the date of the certificate of
outcome.
[5] Even if I give the applicant the benefit of the doubt regarding
the withdrawal of his dispute, this court does not have jurisdiction
over his unfair retrenchment claim in the absence of a condonation
application, and accordingly, his claim ought to be dismissed
on that
ground alone.
Compromise
[6] The applicant was dismissed on 14 June 2011and a dispute over
this dismissal was referred to the CCMA under case number MP
4301-11.
That dispute was settled on 18 November 2011 on a full and final
basis. In terms of the settlement it was agreed that
his termination
on 14 June 2011 would be deemed to be a termination for operational
reasons. It was also agreed that he would be
paid an ex-gratia amount
of R353,000 and that the first respondent would not give any negative
reference to potential employers
of the applicant.
[7] It became evident from the applicant' s submissions in argument
that the applicant considers that the settlement agreement
has not
been complied with by the first respondent in important respects.
This tends to confirm the first respondent’s version
that the
Commissioner advised the applicant that his dispute concerned the
enforcement of a settlement agreement. There may well
be merits in
the applicant’s claim for the enforcement of the settlement
agreement, but as mentioned previously that is not
the dispute which
he referred to this court. Moreover, it is apparent that the
settlement agreement did not lead to the applicant’s
re-employment by the first respondent, and the dispute over the
fairness of his dismissal was brought to an end by the settlement
agreement. The applicant cannot now revive a dispute over the
fairness of his termination, that he can take the appropriate steps
to enforce the settlement agreement.
[8] Accordingly, I am satisfied this court does not have jurisdiction
to entertain a dispute over the fairness of the applicant’s
dismissal by the first respondent was brought to an end when the
settlement agreement was concluded. The applicant can still institute
appropriate proceedings to enforce his award.
Costs
[9] If the applicant had been legally represented, I would not have
hesitated to make an adverse cost order against him. However,
I
accept that even though he is a professional person his confusion
over the appropriate remedy he should pursue was not a result
of him
acting in bad faith.
[10] Nonethess, the outcome of these proceedings should serve as a
caution to the applicant to follow the correct procedures in
terms of
the Labour Relations Act and the rules of this court should he embark
on further litigation in this regard.
Order
[11] The applicant’s referral of his dispute over an alleged
unfair dismissal for operational reasons is dismissed for lack
of
jurisdiction in the light of my findings above.
[12] No order is made as to costs .
_______________________
R LAGRANGE, J
Judge of the Labour Court of South
Africa
APPEARANCES
APPLICANT: In person
FIRST RESPONDENT: S Lancaster of Crafford Attorneys