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[2015] ZALCPE 13
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Food & Allied Workers Unions and Others v Coca-Cola Fortune (Pty) Ltd (PS56/13) [2015] ZALCPE 13 (19 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
CASE
NO: PS 56/13
DATE:
19 FEBRUARY 2015
Not
Reportable
In
the matter between:
FOOD
& ALLIED WORKERS
UNIONS
..............................................................................
Applicant
ERIC
TATI & 72
OTHERS
....................................................................
Second
& Further Applicants
And
COCA-COLA
FORTUNE (PTY)
LTD
................................................................................
Respondent
Heard:
6 May 2014
Delivered:
19 February 2015
Summary:
An application for condonation will be granted when the interests of
justice require so.
JUDGMENT
LALLIE
J
[1]
This is an application for the condonation of the late filing of the
applicants’ statement of claim. It is opposed by
the
respondent. The facts of this matter are briefly that the second and
further applicants lodged a grievance of racism and assault
against
Mr Barnard (Barnard), one of the respondent’s team leaders.
They were not satisfied with both the manner in which
it was handled
and its outcome. The second and further applicants allegedly embarked
on an unprotected strike on 16 April 2013.
They were subjected to a
disciplinary enquiry on 24 May 2013 and dismissed on 19 July 2013.
The applicants referred an unfair dismissal
dispute to the Commission
for Conciliation Mediation and Arbitration (CCMA) on 22 July 2013. An
attempt to resolve the dispute
through conciliation was unsuccessful
and a certificate to that effect was issued on 12 August 2013. The
CCMA scheduled the dispute
for arbitration on 4 October 2013. As the
dispute fell outside the jurisdiction of the CCMA it was eventually
referred to this
court on 22 January 2014 outside the 90 day period
prescribed in section 191 (11) (a) of the Labour Relations Act 66 of
1995 (the
LRA). It is because of the delay that the first applicant
filed this application to have the late referral of the dispute to
this
Court condoned.
[2]
The first applicant submitted that the referral of this matter was
delayed by 16 days. Giving reasons for the lateness, the
deponent to
the founding affidavit, Mr Macingwane(Macingwane), who is the first
applicant’s attorney, submitted that the
second and further
applicants were initially represented by three firms of attorneys.
Attorneys from the firms were present at
the CCMA in October 2013
when the dispute was scheduled for arbitration and agreed that the
CCMA lacked the necessary jurisdiction
over the dispute. He explained
that the first applicant was at pains to establish from the second
and further applicants who wanted
to be represented by it. He stated
that members ducked and dived until the first applicant decided to
launch the referral and represent
all the dismissed employees in fear
of a recurrence of being sued for damages for failure to represent
the interests of its members.
[3]
The first applicant further submitted that it has good prospects of
success in that the second and further applicants did not
take part
in an illegal work stoppage. The charges against them were fabricated
and a strategy to get rid of them for lodging a
grievance against
Barnard who had told them that they would be dismissed even before
the disciplinary enquiry was instituted. It
was further submitted
that the respondent will not suffer any prejudice should this
application be granted. On the contrary, the
second and further
applicants who are presently unemployed and the majority of whom are
breadwinners will suffer the grave prejudice
of losing their right to
present their case with immense repercussions to their families. It
was further submitted that it was
always the applicants’
intention to have the dispute which they even referred to con-arb
resolved expeditiously.
[4]
The respondent denied that the applicants established good cause for
the delay and relied on inadmissible hearsay evidence which
did not
assist it make out a case for condonation. It submitted that the
dispute was referred 2 months and 10 days late as the
degree of
lateness had to be calculated from the date on which the certificate
of the non-resolution of the dispute was issued.
The respondent
denied that Macingwane has personal knowledge of the allegations the
first applicant sought to rely on in proving
the applicants’
good prospects of success. The allegations are factually incorrect as
the second and further applicants were
dismissed fairly for
participating in an unprotected strike. It was denied that the
decision to dismiss the second and further
applicants was
premeditated. The respondent submitted that the second and further
applicants’ ducking and diving does not
justify condonation. It
denied that it will not suffer prejudice as a result of the delay
because it is in the interests of all
the parties that the matter is
heard as soon as possible while it is fresh in the minds of those
involved.
[5]
In the replying affidavit Macingwane denied that his evidence
constituted hearsay evidence as he was entitled to depose to the
founding affidavit as he was responsible for the case. He reiterated
that trade union officials provided the information which
he verily
believed to be correct. He added that he was a member of the team
which ‘formulated the strategy from the inception
of setting in
motion the disciplinary process’ and could therefore swear
positively to the facts of the case.
[6]
In
Melane
v Santam insurance Co Ltd
[1]
the
leading authority on condonation the court, expressed just cause as
follows:
“
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 the facts and in essence, is a matter of fairness to
both sides. Among the factors usually relevant is
the degree of
lateness, explanation thereof prospects of success and the importance
of the case...”
The
Constitutional Court has held that the interests of justice need to
considered in determining whether condonation should be
granted.
[7]
The respondent argued that Macingwane’s omission to disclose
the source of the contents of his founding affidavit rendered
it
inadmissible hearsay evidence. It sought to rely on the following
dictum of
The
Master v Slomowitz
[2]
:
“
In
exceptional cases an application may be based on hearsay but then the
deponent must state that the allegations of fact are true
to the best
of his information, knowledge and belief and state the basis of the
knowledge or belief”.
[8]
The contents of the first applicant’s founding affidavit should
have consisted of admissible evidence. Any reliance on
hearsay
evidence should have been explained properly. The applicant omitted
to attach to the founding affidavit, confirmatory affidavits
of the
trade union officials who provided the deponent with the information
he had no personal knowledge of. The deponent’s
explanation
that he can swear positively to the facts of this case because “
he
was part of a team that prepared and formulated a strategy from the
inception of setting in motion disciplinary process
”
does not assist the applicant prove that it has
good prospects of success. The deponent alleged that the second and
further applicants
did not take part in an illegal work stoppage when
he did not witness the second and further applicants’ conduct
on which
a decision can be based whether they participated in an
illegal work stoppage or not. He therefore had no personal
knowledge
of the relevant facts which remained inadmissible hearsay
evidence in the absence of the union officials’ confirmatory
affidavits.
The first applicant, therefore, failed to prove that it
has good prospects of success.
[9]
The applicant gave two reasons for the delay. Firstly, the CCMA
erroneously scheduled the dispute for arbitration after the
unsuccessful attempt to resolve it through conciliation. Secondly,
the union had to determine its members who had given it a mandate
to
represent them at the Labour court. The certificate of the
non-resolution of the dispute was issued on 12 August 2013 and the
first applicant should have referred their matter to the Labour Court
90 days thereafter. The legislature deliberately afforded
applicants
who have been dismissed for participating in an unprotected strike
ninety days from the date the certificate of the
non-resolution of
the dispute is issued, to file their dispute at the Labour court.
Almost two thirds of the ninety days went into
waiting for the
arbitration hearing which was scheduled for 4 October 2013. When the
CCMA informed the parties that it lacked jurisdiction,
the applicants
had already lost more than half of the time the legislature intended
them to have to file their matter the Labour
court. On 4 October 2013
three firms of attorneys were involved in the dispute and the
applicant had to determine those members
who preferred to be
represented by it. The applicant adopted a cautious approach as it
feared a recurrence of being sued for damages
for failure to
represent the interests of its members. As three law firms were
involved the applicant had to be sure of its mandate.
The exercise
involved 73 employees. The second and further applicants cannot be
prejudiced because the deponent to the founding
affidavit chose to
say they ducked and dived instead of making factual averments of what
they did. He was involved in the matter
even before the disciplinary
enquiry was held. From the date of the second and further applicants’
dismissal, the applicant
took active steps to pursue their case. I am
satisfied that the reasons proffered for the delay are reasonable.
[10]
I have considered the submissions made on behalf of both parties on
the question of prejudice and this court’s duty to
be fair to
both parties. While it is important that the matter be heard why it
is still fresh in the memory of the parties, it
was not the
respondent’s case that the memories of its witnesses have faded
as a result of the delay. The applicants will
therefore suffer more
prejudice should this application be refused. The intention of the
legislature was to afford applicants 90
days which is a substantial
amount of time from the date the certificate of the non-resolution of
the dispute was issued to refer
their cases to the Labour Court. I
cannot turn a blind eye to the reality that the CCMA scheduled the
dispute for arbitration and
informed the parties on 4 October 2013 of
its lack of jurisdiction. The delay between the date the
certificate was issued
and 4 October 2013 should be condoned reducing
the extent of the delay to 16 days which is not substantial in the
circumstances.
I have considered that this matter involves 73
employees, the extent of the delay is 16 days and that the extent of
the prejudice
on the applicants is serious and concluded that it is
in the interests of justice that this application should be granted.
[11]
Although the first applicant is the successful party, it is the one
seeking an indulgence and should bear to costs of this
application.
[12]
In the premises the following order is made:
12.1
Application for condonation is granted.
12.2
The first applicant pay the respondent’s costs.
Lallie
J
Judge
of the labour Court of South Africa
Appearance
For the
Applicant: Macingwane of Macingwane Attorneys
For
the Respondent: Kirchmanns of Kirchmanns Inc
[1]
1962
(4) (SA) 531 at 532 C-F
[2]
1961
(1) SA 669
(T) at 627 B-C