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[2013] ZALCJHB 134
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National Union of Metal Workers of South Africa (NUMSA) and Another v KK Engineering (Pty) Ltd t/a KK Shelving (JS 293/12) [2013] ZALCJHB 134 (21 June 2013)
9
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
case no: JS 293/12
In the matter between:
NATIONAL UNION OF METALWORKERS
OF SOUTH AFRICA
................................................................................
First
Applicant
THABISILE SIBISI
..............................................................................
Second
Applicant
and
KK ENGINEERING (PTY) LTD t/a KK SHELVING
.....................................
Respondent
Heard: 19 June 2013
Delivered: 21 June 2013
Summary: Condonation-late filing of statement of case. Failure to
provide reasonable explanation. Making broad statement about
prospects
of success-not establishing a case for prospects of
success.
judgment
MOLAHLEHI J
There are three condonation applications in this matter. The first
application concerns the late filing of the statement of case,
the
second is that of the late filing of the answering affidavit and the
last concerns the late filing of the replying affidavit.
And on the
day of the hearing a further condonation for the late filing of the
heads of arguments was made from the bar.
The outcome of the first application disposes off the main matter
and thus renders the other applications irrelevant.
The statement of claim which is filed late concerns an alleged
automatically unfair dismissal of the Second Applicant. The dispute
was referred to MIEBC for conciliation and upon failure, a
certificate of non resolution was issued by the conciliating
panellist
on 19 April 2011. The statement of claim was filed on 10
April 2012.
The basis for the claim that the dismissal was automatically unfair
is set out in the Applicant’s founding affidavit in
the
following terms:
‘
44.1. The Second Applicant was prevented
from working overtime, and earning much needed extra money, by the
Respondents management
on the sole basis that she was HIV positive;
44.2. The management adopted this stance despite the fact that the
Second Applicant’s own doctor had given his approval to
her
working overtime;
44.3. When this was reported to the senior manager he paid lip
service to the issue by glibly confirming that the manager’s
actions were wrong but then instead of reprimanding or sanctioning
the manager he essentially supported him by demanding from the
Second
Applicant that she produce a doctors certificate that stated that she
could work overtime;
44.4. The management refused to consider the Second Applicant’s
grievance and refused to sanction the manager for firstly
discriminating against her and then later, after he heard she had
reported him, victimizing her by making faces at her and instead
instituted disciplinary proceedings against her for bringing police
onto the premises when she had absolutely no control over this.
44.5. The dismissal of the Second Applicant was inconsistent in that
fellow employees who also went on strike under the same circumstances
were not dismissed and were only issued with a final written warning”
The reasons for the delay
There are about five periods of the delays which the applicants deal
with in their application. The first period of delay has
to do with
the direction that came from the certificate of non resolution,
which indicated that the matter is arbitrable. The
Applicant says
that the understanding that both parties had was that the dispute
required arbitration for its resolution. The
delay was accordingly
caused by having to request the matter to be scheduled for
arbitration hearing.
The second period of the delay occurred when the matter served
before the arbitrating panellist who ruled that the dispute had
to
do with discrimination and therefore the bargaining council did not
have jurisdiction to entertain it. The arbitrating panellist
directed that the matter needed to be referred to court for
adjudication. The arbitrating panellist made his ruling concerning
the jurisdiction of the Bargaining Council on 7 September 2011.
The delay that followed after the ruling was made is attributed the
ignorance and the failure to understand the ruling by the
arbitrator. This resulted in Mr Sishwili having to consult other
colleagues and office bearers about the merits of the ruling
and
what step to take next. The other reason for the delay according to
the Applicant on the part of Mr Mdlalose to whom Mr Sishwili
had
handed the matter to as the Regional Legal Officer of the First
Applicant. Mr Mdlalose is accused of having failed to respond
to
messages of seeking a meeting with him by Mr Sishwili. Mr Mdlalose
is also accused of having failed to process cases which
needed to be
referred to the Labour court including that of the Second Applicant.
The reading of the Applicant’s founding affidavit suggests
that Mr Mdlalose was charged and dismissed for his failure not
only
to draw pleadings in a number of labour matters involving dismissal
of employees including the Second Applicant.
The other period of the delay is attributed to the December /January
closure of the First Applicant. The deponent to the founding
affidavit says that on his return from the December/ January holiday
and that was on the 22 January 2012, he in addition to the
87 files
had to work on, he had to travel the regions to conduct trials in
the Labour Court. It was according to him for this
reason that he
was not able to immediately attend to this matter.
The other delay was occasioned by the deponent to the founding
affidavit being “perplexed about what cause of action to
follow regarding this matter” because the ruling of the
arbitrator. The next period of the delay occurred from the end
of
February 2012 when the attorney of record was instructed to deal
with the matter.
The attorney was in the same way as was Mr Montshioa faced with the
difficulty of not knowing what to do with the ruling of the
arbitrator on jurisdiction. It took time for the attorney to decide
whether to review or have the matter referred to the Labour
Court.
At paragraph 40 of the founding affidavit Mr Montshioa makes another
interesting statement as to another factor that contributed
to the
delay. He says:
“
39. I
am advised that Cartwright (the attorney of record) was also
initially uncertain whether the Commissioners ruling should be
reviewed or whether the matter should be referred to the Labour Court
in the form of action proceedings.
40. In this case the
intolerability of the Second Applicants situation was predicated on
the discrimination she had received at
the hand of a certain manager
and thus discrimination she had received at the hand of a certain
manager and thus discrimination
was embedded in the very centre of
the constructive dismissal argument and did not form a separate part
to it. Cartwright’s
argument was that if the inextricable
linked to the constructive dismissal argument then it should first
and foremost be treared
as a constructive dismissal dispute and that
therefore the Bargaining Council and not the labour Court would have
jurisdiction
to hear the matter.
41. Cartwright after much legal
research and seeking of advise of colleagues in the bar and the side
bar decided that he would have
to refer it to the Labour Court in the
form of action proceeding as the general consensus amongst his peers
was that whether discrimination
was part of the constructive
dismissal argument or not would still feature separately when the
Labour Court, having decided that
the termination of the Second
Applicants conduct did constitute a constructive dismissal, would
then in reaching the final decision
whether the dismissal was fair
would have to establish objectively, as opposed to objectively and
subjectively in determining whether
the Second Applicant was
dismissed, whether the Respondent did discriminate against the Second
Applicant on the basis of the HIV
status.”
Legal Principles
The approach to be adopted when dealing with an application for
condonation is set out in the often cited case of
Melanie v
Santam Insurance Co Ltd
1
,
in
the
following
terms:
“
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefore, the prospects of
success and the importance of the case. Ordinarily these
facts are
interrelated: they are not individually decisive, for what would be
piecemeal approach incompatible with a true discretion...
What is
needed is an objective conspectus of all the facts. Thus a slight
delay and a good explanation may help the issue and strong
prospects
of success may tend to compensate for a long delay. And Respondent’s
interests in finality must not be overlooked.”
The authorities are also in agreement that condonation should be
refused where there is no reasonable or acceptable explanation.
Condonation should also be refused where there are prospects of
success.
When dealing with condonation concerning dismissal of an individual,
the Court in
Queenstown Fuel Distributors CC v Labuschagne NO and
Others
2
held that:
“
It
follows, however, from what I have said above, that condonation in
the case of disputes over individual dismissals will not readily
be
granted. The excuse for non- compliance would have to be compelling”
Evalution
There can be no argument that the delay in this matter is excessive
and the explanation is unreasonable and totally unsatisfactory.
As concerning the extent of the delay it is apparent that the matter
was referred to Court 267 days out of time, if the delay
was to be
calculated from the time the arbitrator made the ruling that the
matter should be referred to the Labour Court, the
referral is 216
days late. The referral as indicated is excessively late
irrespective of the period from which point the time
of the delay is
calculated from.
It has been disputed that Mr Sishwili represented members of the
First Applicant at conciliation and arbitration proceedings.
This
being the case, it makes no sense to say that the cause of the delay
was due to the fact that Mr Sishwili did not have had
full
understanding of the time limits provided for in the LRA.
It also does not make sense to blame the delay on the alleged
failure by the arbitrator to explain to Mr Sishwili the
jurisdictional
ruling. In my view, the ruling is self explanatory.
The ruling issued by the arbitrator reads as follows:
‘
This
pertains to a constructive dismissal that was referred to
arbitration. From the facts of the matte; the Applicant alleges that
she was discriminated against because of her status (medical issue)
and was compelled to resign. Since this matter pertains to
discrimination based on a medical condition, the MEIBC does not have
jurisdiction and this matter should therefore be referred
to the
Labour Court. Both parties have agreed that the Labour Court will be
the appropriate forum.’( my emphasis)
It is important to note that the ruling was not based only on the
opinion of the arbitrator but also on the fact that the parties
agreed that the appropriate forum to deal with the dispute was the
Labour Court. It is therefore not clear why there was a need
to
consult with the office bearers on the merits of the ruling which
the parties had agreed to. It is also important to note
in this
regard that there is no evidence that Mr Sishwili was not aware that
the matter needed to be referred to the Labour Court
within 90 days.
It is important to note that to a very large extent the cause of the
delay can be attributed to the negligence to both the union
officials and the attorney of record. This however is not a case
where the Second Applicant can be exonerated from such negligence.
There is no evidence that the Second Applicant ever enquired about
what was happening to his claim in a period at least of 216
days. In
Nampak Corrugated Wadeville v Khoza
3
,
the Court held that:
“
An
application for condonation of the late filing of heads of arguments
was refused because there was no “acceptable explanation”
for the delay that was caused by an attorney
.”
In
Waverly Blankets Ltd v Ndima and Others
4
,
the court held that:
‘
Although
the employees were not to blame for this state of affairs, it has
frequently been emphasised by our Courts- including this
Court- that
an attorney’s neglect of his client’s affairs may be so
in excusable that condonation may, despite the
blamelessness of his
client, be refuse. In my view, this is precisely such a case.”
In my view, the Applicant’s application stands to fail on the
basis of the failure to provide a satisfactory and reasonable
explanation. The application stands to fail also for the reason that
the Applicants have failed to make a case on prospects of
success.
The Applicant has made a broad and unsubstantiated statement about
prospects of success.
The duty to show prospects of success rests with the applicants.
Whilst the test to apply in determining the merits in the main
case,
the applicant still has the duty to place evidence before the court
to show the existence of the prospects of success.
In the present
case, as indicated, the applicant relies in the general and broad
statements that there are prospects of success.
The second applicant
has not placed evidence before the court regarding the facts and the
circumstances surrounding her resignation.
Accordingly I found that
the applicants have failed to make out a case that they have
prospects of succeeding in the main case
if condonation was granted.
On the assumption that the parties still have a relationship, I do
not consider appropriate to allow
costs to follow the results.
Order
In the premises, the Applicant’s condonation application is
dismissed with no order as to costs.
____________
Molahlehi J
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr David Cartwright of DC Attorneys
For the Respondents: Adv Cosyn instructed by Klopper and Jonker Inc
1
1962
(4) 531 (A) at 532 C-F
2
2000
(1) BLLR 45
LAC at para 24 on page 53
3
1999
(2) BLLR 108
(LAC) para 8 on page 110
4
1999
(11) BLLR 1143
(LAC) para 10 on page 1146