About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2014
>>
[2014] ZALCJHB 87
|
|
Kabe v Nedbank Ltd (JS633/13) [2014] ZALCJHB 87 (24 March 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA,
IN
JOHANNESBURG
JUDGMENT
Not
reportable
Case
no: JS 633/13
In
the matter between:
NKADIMANG
EUGENIA
KABE
Applicant
And
NEDBANK
LTD
First
Respondent
Heard:
12 March 2014
Delivered:
24 March 2014
Summary:
(applications for condonation and amendment – objections based
on jurisdiction and failure to disclose a cause
of action)
RULING
ON CONDONATION AND IN LIMINE OBJECTIONS
LAGRANGE,
J
Introduction
[1]
The referral in this matter concerns an
alleged automatically unfair dismissal in terms of
section 187
(1)
(h) of the
Labour Relations Act 66 of 1995
.
[2]
The applications before this court are
three interlocutory ones concerning:
2.1
a condonation application for the
applicants late referral of the statement of case;
2.2
an application by the applicant for leave
to amend her statement of case, and
2.3
an
in limine
objection by the respondent to the applicant’s statement of
claim including the proposed amended statement of claim on the
basis
that it is vague and embarrassing and, or alternatively, does not
disclose cause of action.
[3]
For
ease of understanding, I will continue to refer to the applicant in
the referral as the applicant in this ruling even though
she is only
the applicant in respect of the condonation application and the
application to amend the statement of case. Correspondingly,
the
respondent in the referral will retain that appellation.
[4]
The matter previously was set down for 23
October 2013 when it was postponed at the applicant’s request
and the applicant
was ordered to pay the costs of the postponement.
The applicant has filed an application for leave to appeal against
the cost order.
Once again, just over a week before the matter was
set down again the applicant asked the matter to be removed from the
role as
she had objections to the re-enrolments of the matter. The
applicant was unhappy that the registrar had set the matter down for
a hearing at the request of the respondent apparently on account of
the applicant having taken no steps since October 2013 to have
the
matter enrolled. The respondent was perfectly entitled to request the
matter to be set down and the applicant received the
notice of set
down well enough in advance on 25 February 2014.
[5]
The principal reason why the applicant did
not want the matter to proceed at this stage, as explained by herself
at the hearing,
was that she was awaiting further information
relating to a complaint she had lodged with the Johannesburg Bar
Council against
an advocate who had been appointed to chair a
grievance hearing involving the applicant as the grievance May 2012.
[6]
Given the issues the court was required to
deal with in the various applications before it, it is apparent that
any additional details
about this grievance and its handling were
unlikely to assist in the resolution of issues germane to the
applications, even though
it
might
ultimately have some evidentiary value should this matter go to
trial. If the applicant’s enquiries about matters relating
to
the grievance ultimately do provide evidence in support of her claim,
that is not something that necessitates delaying these
applications.
Secondly, if information that might be revealed by such further
enquiries genuinely necessitated a further amendment
of the
applicant’s statement she could still issue a further notice of
amendment, or address the matter in the pre-trial
process.
[7]
Consequently there was no basis for further
delaying the hearing of these applications.
Condonation
application
[8]
The applicant referred her unfair dismissal
claim to the CCMA on 13 December 2012. It is common cause that when
the applicant completed
the 7.11 referral form, she was not entirely
sure which type of dispute to identify when categorising it and she
did not identify
her dismissal as one that was automatically unfair.
The matter was unsuccessfully conciliated and referred to arbitration
on 9
January 2013. Two hearings scheduled for 5 March and 26 April
2013 did not take place for reasons owing to both parties and the
matter only commenced on 9 July 2013. The applicant further points
out that a scheduled pre-arbitration meeting between her attorneys
and the respondent’s attorneys at which the nature of the claim
would have been discussed never took place prior to the arbitration
hearing on 9 July 2011.
[9]
It was only 11 July 2013 of the applicant
indicated that she was not proceeding with the matter in the CCMA but
was referring the
matter to the Labour Court as an unfair dismissal
as a result of having made an alleged protected disclosure in terms
of the Protected
Disclosures Act 20 of 2000 (‘the PDA’).
The applicant claims that it was only after she had terminated the
mandate
of her former attorney that she was made aware by the
Commissioner that the case should have been referred to the Labour
Court.
[10]
The
applicant’s statement of claim was filed on 30 July 2013, about
three weeks after the aborted arbitration proceedings.
Since the
certificate of outcome was issued on 9 January 2013, the 90 day
period for referring the matter to court expired on 10
March 2013.
Consequently, although there may be reason to calculate the
commencement of the 90 day period differently
[1]
,
on the more common reading of section 191(11)(a) the referral was
over three months late.
[11]
In the absence of the applicant having done
anything during the 90 day period to advance her claim such a delay
might ordinarily
be fatal to a condonation application but it cannot
be said that the applicant folded her hands and watched the clock
ticking.
Advised by attorneys, she set the arbitration ball rolling
without delay. The delays in commencing proceedings appear to be
attributable
in roughly equal parts to both parties’ legal
representatives. Regrettably, they also could not conclude a
pre-arbitration
minute. It is not implausible that the applicant only
came to realise the existence of a claim pertaining to an
occupational detriment
under the PDA during the discussions which
took place on 9 July 2013 and the following days. The merits of the
PDA claim as pleaded
leave much to be desired but that is a matter I
will address under discussion of the amendment and exception. The
referral of the
applicant made three weeks later was obviously one
that took some time to draft, even if it may be said that it appears
to contain
significant amounts of material that might not be relevant
to her claim of automatically unfair dismissal and even if it is
unnecessarily
detailed in many respects.
[12]
The respondent's representative argued that
the applicant ought not to be able to hide behind the apparent
failure of her erstwhile
attorneys to prosecute her claim in the
correct forum. Ms Sibanda argued that, in effect, knowledge of the
true nature of the applicant’s
claim was either attributable to
the applicant or her attorneys. However, there is no material
evidence from which such an inference
can be drawn, and accordingly I
am inclined to accept the applicant’s claims in this regard.
[13]
In the circumstances, although the delay is
significant, given the fact that the applicant was not idle in
pursuing her rights relating
to her dismissal during the 90 day
period and bearing in mind that she filed a statement of case within
a reasonable time of the
true nature of her claim being identified.
I'm satisfied that the applicant has justified the delay. Because of
the inchoate nature
of her protected disclosure claim, the merits of
that claim are difficult to assess, but I do not regard that as a
decisive factor
in this condonation application, given that if she
can make out a claim under the PDA, that is a claim that should not
lightly
be denied ventilation in a hearing. I am also not persuaded
that the delay occasioned by this matter by the time she filed a
statement
of case has caused significant prejudice to the respondent.
All things considered, I believe that condonation for the applicants
late filing of her statement of case ought to be granted.
The applicant’s
notice of amendment and the respondent's objections
[14]
On 8 August 2013, the applicant filed a
notice of intention to amend her statement of case which she replaced
with a new notice
of intention to amend on 29 August 2013. The
respondent raised
in limine
objections to her original statement of claim and has filed a notice
of objection to the intended amendment.
[15]
The applicant's statement of claim contains
a rambling account of a number of issues that grieve the applicant,
which she alleges
arose during her employment. Quite apart from
those, she claims she was automatically unfairly dismissed on account
of having made
a protected disclosure in terms of the PDA. The
respondent has objected to some of these claims on the basis that the
court lacks
jurisdiction and two others on the basis that the
allegations of vague and embarrassing and, or alternatively, do not
disclose
a cause of action.
[16]
In part I of the applicant’s notice
of amendment she sets out her complaints relating to what she calls
"Nedbank legal
requirements not complied with from 1 August 2010
to December 2012”. Under the heading she sets out to be the
various requirements
relating to be employer’s performance
management policy, but makes no allegations of what the employer
allegedly failed to
comply with. Part II of the notice is headed
"Nedbank legal requirements in terms of the Performance
Management User Guide:
Timelines on page 4". In this section
also she simply sets out pre-requisites in terms of that document,
without making any
allegations about the respondent’s conduct
in that regard. Similarly, parts three, four, five, six, seven and
eight nearly
appear to be the applicant's summary of the various bank
procedures concerning discipline performance evaluation and
grievances.
[17]
It is only in part IX of the applicant’s
notice of amendment that she sets out alleged shortcomings of the
respondent under
the heading Of “Prima-facie evidence
“Harassment””. Under this heading, the applicant
makes certain allegations,
some of which are completely lacking in
detail, about the respondent’s alleged failure to comply with
its own performance
evaluation policy. She further complains about
various work pressures she was subjected to. It is unclear to me what
the legal
nature of her claim is in this regard.
[18]
In part X of the notice of amendment the
applicant deals with what she identifies as the “Occupational
Detriment”. Under
this part t
he
applicant alludes to a “tipoff”, which she mentions in
the previous section of the notice. In part IX she describes
it in
the following terms:
"12.
Subsequent, a tipoff anonymous was logged in terms of section 6 of
the protected disclosure act
intended to be attended by Deloitte as
described on the disciplinary and grievance policy. See annexure B of
the Tip-off and Annexure
C of the policy."
[19]
This brief sentence is the only hint in the
entire document of what might be a protected disclosure. Under the
heading of part X,
the applicant provides a fairly lengthy chronology
of events after 14 November 2011, which is the date she sent an
e-mail request
for a transfer to ‘HR’ in which she says
she repeated the contents of the tipoff. In the course of that
narrative,
the applicant relates amongst other things that:
19.1
she claims to have been falsely accused of
not filing a report on 14 December 2011;
19.2
on 18 January 2012 she was given a written
warning, apparently for her failure to attend another meeting she had
been asked to attend;
19.3
when she was issued with a warning she was
denied representation as required by the respondent's policy;
19.4
the applicant lodged a grievance
complaining that the disciplinary action amounted to victimisation
and when she escalated the matter
was confronted with a grievance
lodged against herself two years ago at the Glen branch of the
respondent;
19.5
the applicant was overloaded with work
which she believed was intended to demonstrate her incompetency;
19.6
complaints were made about various work she
had prepared, even though she was not responsible for some of it and
no training was
provided to her to prepare her for some of the work;
19.7
two other staff were transferred allegedly
to protect them from "the harasser”, a person who is not
identified by name,
whereas the applicant was not;
19.8
she was accused of having misled the
financial services board;
19.9
disciplinary action was not taken in other
clusters where there were irregularities;
19.10
she was advised about the implementation of
the Performance Corrective Plan, which was in contravention of the
performance Management
process, and lodged a grievance against this;
19.11
she was threatened with "recourse",
whatever that may mean, when she requested documents and minutes
pertaining to a meeting;
19.12
she was unfairly accused of not notifying a
superior about her absence from work on 19 June 2012;
19.13
she was required to correct reports from
January to June 2012 and when she did was told she had used the wrong
report;
19.14
the applicant was called to a grievance
hearing in which she believes the chairperson was biased and not
independent;
19.15
when she complained about discrepancies in
her formal performance review in August 2012 her rating was
downgraded further;
19.16
she was falsely accused of failing to redo
a July report;
19.17
on 22 October 2012 her application for
annual leave was refused;
19.18
the applicant was eventually summonsed to
an incapacity hearing, in the course of which charges of incidents
and insubordination
were added, and the chairperson accused her of
acting vexatiously towards the respondent by referring a matter to
the CCMA,
19.19
and she was ultimately dismissed on 11
December 2012.
[20]
It is not clear from the above, whether or
not the applicant is saying that all of the above allegations amount
to occupational
detriments, which she believes are linked to the
vaguely described alleged disclosure. I appreciate that the applicant
is a layperson,
but judging from her use of language, it is not
beyond her to set out her claim in a summary and unambiguous way so
that the respondent
knows exactly what the nature of the claim is and
the facts on which the applicant intends to prove in order to
establish her claim.
[21]
One of the objections raised by the
respondent are that, leaving aside the applicant's dismissal, the
actions the applicant complains
of have never been referred to the
CCMA for conciliation. Section 4(2) of the PDA which sets out the
procedures for pursuing rights
under that Act, states:
“
For
the purposes of
the
Labour Relations Act,
1995
, including the consideration of
any
matter emanating from this Act by the Labour
Court—
(a)
any
dismissal in
breach of section 3 is deemed [o be an automatically unfair dismissal
as contemplated in section 187 of that Act, ond
the dispute about
such a
dismissal must follow the procedure set out in Chapter
VIII
of that Act;
and
(b) any other
occupational detriment in breach of section 3 is deemed to be an
unfair Iabour practice as contemplated in Part B
of Schedule 7 to
that Act, and the dispute about such an unfair labour practice must
follow the procedure set out in that Part:
Provided that if the
matter fails to be resolved through conciliation, it may be referred
to the Labour Court for adjudication.”
[22]
To the extent that the applicant wishes to
include in her claim under the protected disclosure act, all the
events excluding her
dismissal where she believes she was unfairly
prejudiced as a result of the alleged disclosure, those matters
should have been
referred to the CCMA in terms of section 4(2)(b) of
the PDA. In the absence of such a referral, the Labour Court does not
have
jurisdiction. The applicant makes no claim nor provides any
evidence that she referred an unfair labour practice claim relating
to an alleged occupational detriment short of dismissal to the CCMA.
Accordingly, the only claim over which the Labour Court has
jurisdiction in the current matter is one in which the applicant has
made out a case that her dismissal amounted to an occupational
detriment in terms of the PDA.
[23]
This
brings me to the respondent’s further objection which is along
the lines of an exception. This relates to the applicant's
failure to
plead the detail of a claim under the protected disclosure act. In
this regard, the applicant has failed to make a clear
allegation that
would identify why the anonymous tipoff amounts to a protected
disclosure as defined in section 1 of the PDA.
[2]
It is necessary for the applicant to make sufficient allegations for
it to be possible for the respondent to identify which type
of
protected disclosure she claims to have made. In this regard, it
should also be noted that the applicant has not stated that
she
actually made the alleged disclosure herself.
[24]
Further,
the applicant has failed to identify the nature of the disclosure
made in the tipoff. This is necessary in order to identify
whether
the tipoff would qualify as a ‘disclosure’ as defined in
section 1 of the PDA.
[3]
Even if
the applicant had referred to the definitions, she would still have
to have set out the facts she intends to prove that
would bring her
case within the ambit of those definitions.
[25]
The applicant's failure to make
sufficiently detailed allegations that would show that her claim
would amount to a protected disclosure
if she could prove those
allegations, means that she has failed to set out sufficient
allegations to make out a case of automatically
unfair dismissal on
account of having made a protected disclosure.
Costs
[26
]
As both parties have been partially
successful in this matter, I believe it is fair and equitable for
them to bear their own costs.
Order
[27]
In light of the above, the following order
is made,
27.1
the applicant's late referral of her
automatically unfair dismissal dispute to the Labour Court is
condoned;
27.2
the Labour Court lacks jurisdiction to
entertain and determine any unfair labour practice claim based on an
alleged occupational
detriment short of dismissal, which occurred
prior to the applicant's dismissal on 11 December 2012, in the
absence of such a claim
being referred to in the CCMA for
conciliation;
27.3
the respondent's objection that the
applicant's statement of claim claim does not disclose a cause of
action, even in the form set
out in the applicant's notice of the
amendment dated 29 August 2013, is upheld;
27.4
in the light of the finding in paragraph
27.3 above, the applicant is granted leave to file a further notice
of intention to amend
her statement of claim to remedy her failure to
disclose a course of action, which must be filed within 21 calendar
days of this
judgement, and;
27.5
each party must pay their own costs.
_______________________
R LAGRANGE, J
Judge of the Labour
Court of South Africa
APPEARANCES
APPLICANT:
In person
RESPONDENT:
Z Ngwenya of Cliffe Dekker Hofmeyr
[1]
See
Vorster
v Rednave Enterprises CC t/a Cash Converters Queenswood
(2009)
30
ILJ
407 (LC)
at
409-410, paragraphs [4] - [5].
[2]
Section
1 of the PDA defines the term as follows:
“
(ix)
“protected disclosure” means a disclosure made to-
(a)
a Iegal adviser in accordance with section 5;
(b)
an employer in accordance with section 6;
(c) a member of
Cabinet or of the Executive Council of a province in 10
accordance with
section 7;
(d)
a person or body in accordance with section 8; or
(e) any other person
or body in accordance with section 9,
but does not include
a disclosure—
(i)
in respect of which the employee concerned commits an otience by 15
making that
disclosure; or
(ii) made by a legal
adviser to whom the information concerned was
disclosed in the
course of obtaining legal advice in accordance with
section
5;..”
[3]
Section
1 of the PDA defines a disclosure as follows:
(i) “disclosure”
means any disclosure of info, mation regarding any conduct of an
employer,
or an employee of that employer, made by any employee who has
reason to believe
that the information concerned shows or tends to show one or 5
more of the
following:
(a) That a criminal
offence has been committed, is being committed or is
likely to be
committed;
(b)
that a person has failed, is failing or is
likely to fail to comply with any
legal obligation to
which that person is subject;
(c)
that a miscarriage of justice has occurred, is occurring or is
likely to
occur;
(d)
that the health or safety of an individual has
been, is being or is likely to
be endangered;
(e)
that the environment has been, is being or is
likely to be damaged;
(f)
unfair discrimination as contemplated in the
Promotion of Equality and
Prevention of Unfair
Discrimination Act, 2000 (Act No, 4 of 2000);
(g)or
that any matter referred to in paragraphs (a) to (f) has been, is
being or is
likely
to be deliberately concealed;”