About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2013
>>
[2013] ZALCJHB 126
|
|
National Union of Metal Workers of South Africa (NUMSA) and Others v Scaw Wire and Strand, a division of Scaw Metals SA (Pty) Ltd (JS 1036/12) [2013] ZALCJHB 126 (14 June 2013)
7
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case No: JS 1036/12
In the matter between –
NATIONAL UNION OF METAL WORKERS
OF SOUTH AFRICA
................................................................................
First
Applicant
NICHOLAS KHULU AND OTHERS
...............................
Second
to Further Applicants
And
SCAW WIRE AND STRAND, A DIVISION OF
SCAW METALS SA (PTY) LTD
..................................................................
Respondent
Heard: 15 May 2013
Delivered: 14 June 2013
Summary: Condonation application- weak explanation compensated by
strong prospects of success. Need for unions and other organisation
to align their internal administrative procedures with the LRA time
lines.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
MOLAHLEHI J
Introduction
[1] This is an application for condonation for the late filing of the
statement of case of the applicants in terms of which they
claim that
their dismissals for allegedly inciting and participating in
unprotected strike action was unfair.
Background facts
[2] The dispute in this matter has its origin in the grievance that
the applicants had lodged with the respondent regarding alcohol
testing. The dispute was sparked by an incident concerning the
accusation that Mr Mavundla came to work under the influence of
alcohol. He was then told to go back home for that reason but later
to be called by Mr De Swart to return to work.
[3] Both Mr Mavundla and Mr De Swart, were disciplined. The union
requested to sit in in the disciplinary hearing as observers.
This
request was refused by the chairperson of the disciplinary hearing.
After being told that they could not sit in the disciplinary
hearing
as observers, the shop stewards sat outside the premises where the
disciplinary hearing was held. Whilst sitting there
the shop stewards
were approached by the employees who enquired as to what was
happening. On being told about the decision of the
chairperson of the
disciplinary enquiry, the employees embarked on a protest action
which according to the deponent to the founding
affidavit lasted for
three and half hours.
[4] On 6 August 2010, the shop stewards were handed notices of
suspension and a disciplinary hearing. The shop stewards who were
suspended and disciplined were: Mr Mmashakana, Mr Khulu, and Mr
Simelane. The charges which were proferred against the applicants
are
summarised at paragraph 17 of the respondents answering affidavits as
follows:
"Following the suspension,
the shop stewards were charged with instigation and incitement;
participations in an unprotected
work stoppage, intimidation and
threatening behaviour and gross misconduct violating the employment
relationship.
[5]
The shop stewards
were dismissed on 27 October 2010. Their appeal was also
unsuccessful.
[6] The charge against Mr Dlamini, the only shop steward who was not
dismissed at the time the first industrial action took place
was
dismissed for what happened on 11 August 2010. The applicants say
that Mr Dlamini, was dismissed after he informed the employees
about
the suspension of the shop stewards and in response the employees
embarked on a work stoppage. The charges against him were
similar to
those which were proffered against his colleagues. He was found
guilty and dismissed on 3 October 2011.
[7] The shop stewards being unhappy about their dismissals referred
separate alleged unfair dismissals disputes to the Metal and
Engineering Bargaining Council (the Bargaining Council).
[8] The applicants have tendered a number of reasons as to the delay
in referring the matter to the Court within the prescribed
90 days
period. The first, blame for the delay is placed on the certificate
of outcome of the conciliation proceedings which directed
that the
different matters be referred to arbitration. It was at the
arbitration hearing that the arbitrator directed that the
matter
should be referred to the Court or in one instance the parties agreed
themselves that the matter be referred to the Court.
The period of
the delay ranges from 675 and 693 days with that of the last
dismissal being 377 days late.
[9] The delay after it had become clear that the matter had to be
referred to the Court has to do with the internal administration
of
the union in terms of which a meeting was held to discuss the
matters. At that meeting which took place in September 2012, it
was
agreed that the secretariat of the union should be approached for
approval to have the matter referred to attorneys.
[10] The secretariat required a legal opinion from the attorneys of
record which was furnished in October 2012. The opinion of
the
attorneys seem to have been that there was a case to be referred to
the Court as on 7 November 2012, the applicant’s
attorneys of
record filed the statement of case. The statement of case was however
not accompanied by a condonation application
as according to the
applicants the attorney responsible for dealing with the matter had
other urgent matters he had to attend to.
The condonation application
was finalised on 12 November 2012.
[11] In opposing the application the respondent contends that the
explanation proffered by the applicants is not satisfactory,
particularly when regard is had to its excessive delay. The
respondent contends that the explanation is made weak by the fact
that the applicants are not specific about the periods of delays and
further that they are vague in their explanation as to certain
periods of the delay.
Evaluation
[12] The authorities have over
the years been in agreement as to the principles that should be
applied when considering whether
to grant or refuse a condonation
application. In this regard the authorities have repeatedly stated
that in considering an application
for condonation, the Court has a
discretion which is to be judicially exercised. In exercising that
discretion the Court has to
take into account the totality of the
facts and weigh all other factors together. The degree of the delay,
the explanation thereof
and the prospect of success in the main case
are some of the factors which the court has to weigh in its
consideration of the application.
1
[13] It was argued on behalf of
the respondent that the explanation relating to the internal
procedures of the union should be rejected
on the authority of
NEHAWU
and Others Vandebijlpark Society for the Aged
.
2
In that case R Lagrange J, refused condonation where the union sought
to explain its delay on the basis of its internal administrative
procedures. The condonation was refused on the basis that unions are
expected to devise procedures to comply with the statutory
deadlines.
I agree and in fact this should apply to all organisations,
institutions and public sector entities. I do not however
read the
judgment to be saying that an explanation based on internal
administrative procedures of an organisation should automatically
be
rejected and be treated as no explanation or be regarded as poor
explanation for that reason alone. An explanation based on
internal
administrative procedures has to be considered on the facts and the
circumstances of each given case and be weighed with
all other
factors.
[14] In the present instance I agree with the respondent that certain
aspects of the explanation given by the applicants are
unsatisfactory.
In this regard there are a number of gaps in the
explanation of the second period of the delay. It is also evident
that the delay
was excessive.
[15] I do not however believe that the explanation proffered by the
applicants is so poor that the need to consider prospect of
success
does not arise. In my view the weak explanation given by the
applicants is compensated for by the prospect of success.
[16] The prospect of success are to be assessed in the context where
it is alleged that the dismissal of the applicants was because
they
instigated, incited the employees to participate in an unprotected
strike action and they also did the same.
[17] It is trite that participation in an unprotected strike action
amounts to misconduct. However, the fact that employees participated
in an unprotected strike action does not automatically lead to the
conclusion that the dismissal is fair. The employer has a duty
to
show that the dismissal for participating in an unprotected
industrial action was fair. Section 68 (5) of the LRA provides as
follows:
‘
Participation
in a strike that does not comply with the provisions of the Chapter,
or conduct in contemplation or in furtherance
of that strike, may
constitute a fair reason for dismissal. In determining whether or not
the dismissal is fair, the Code of Good
Practice: Dismissal in
Schedule 8 must be taken into account.’
[18] There is a dispute of facts in this matter regarding the
allegation that the shop stewards incited the employees to embark
on
an unprotected strike action. It is common cause that the employees
did embark on a strike action which according to the applicants
lasted for a period not exceeding three and half hours. The applicant
denies having incited the employees to embark on the unprotected
strike action. The employees are said to have embarked on the strike
action upon being informed that the chairperson of the disciplinary
hearing had refused the shop steward to sit in the hearing as
observers. According to the applicants they intervened immediately
the employees embarked on the strike action and persuaded them not to
continue with their action. The applicants further say that
they
stopped the employees from damaging the respondent’s property.
[19] The applicant complains that the respondent was unfair in
dismissing them also because it applied discipline inconsistently.
In
this regard the applicants contend that although they were dismissed
for the alleged participation in the strike, other employees
who did
the same were not dismissed but given warnings.
[20] In relation to Mr Dlamini, the applicants contend that he was
dismissed for informing the employees about the suspension of
his
colleagues and this was done after management had granted permission
for the meeting where he passed the information.
[21] In the answering affidavit the respondent answers to the case of
the applicant in relation to the prospect of success in essentially
two and half paragraphs. The answer reads as follows:
‘
28.3.
On 2 August 2010 and 11 August 2010 the Applicants and the members
embarked on industrial action which was both unprotected
and
unlawful. The Applicants as they union and shop stewards had a duty
to ensure that the members acted in accordance with the
policies and
procedures of the Respondent
as
well as the provisions of the Act during times of industrial action.
28.4.
On the case in question,
the Applicants incited that the members into embarking on unlawful
and unprotected industrial action when
they called their members out
of work on 2 August 2010 and when Dlamini incited strike action
following a meeting with members
on 11 August 2010.
28.5. The former Employees used
already tense situations to incite the members to act in an unlawful
manner.’
[22] In my view, based on the above, the applicant have succeeded in
showing that they have a very strong prospect of success and
for that
reason, I believe that, the application should succeed.
[23] In my view, allowing costs to follow the results, in the
circumstances of this case would be unfair.
Order
[24] In the premises, the condonation for the late filing of the
statement of case of the applicant's is granted with no order
as to
costs.
Molahlehi J
Judge of the Labour Court of South Africa
Appearances:
For the Applicants: Mr X Ngako of Ruth Edmonds Attorneys
For the Respondent: Advocate R Davey instructed by Bowman Gilfillan
Inc.
1
Melanie
v Santam Insurance
Co Ltd
1962 (4) SA 531
(A) at 532C-F
,
Foster v Steward Scott Inc
(1997)
18 ILJ 367 (LAC) at 369,
National
Union of Mine Workers and Others v Western Holdings Gold Mine
(1994)
15 ILJ 610 (LAC) at 613C-D,
Queenstown
Fuel Distributors CC V CCMA and Others
(2000)
21 ILJ 1197 (LC) at 1198E-I.
2
(2011)
BLLR 690
(LC).