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[2015] ZALCPE 30
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Noko v Pharmacare Ltd (PS 44/2013) [2015] ZALCPE 30 (24 April 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case no: PS 44/2013
DATE: 24 APRIL 2015
In the matter between:
SIMPHIWE
NOKO
..................................................................................................................
Applicant
And
PHARMACARE
LTD
...........................................................................................................
Respondent
Heard: 22 April 2015
Delivered: 24 April 2015
[1] This is an application to condone
the late referral of an unfair dismissal dispute to this court. The
circumstances that led
to the later referral are dealt with below.
[2] The applicant was dismissed for
misconduct on 20 December 2011. The applicant contested the fairness
of his dismissal and referred
the matter to the bargaining council. A
certificate to the effect that the dispute remained unresolved was
issued by the bargaining
council on 13 February 2012. The dispute was
subsequently referred to arbitration. An arbitration hearing
commenced on 16 May 2013,
under the auspices of the bargaining
council. On the same day, the applicant testified in support of his
claim. During cross-examination,
he stated that he was of the view
that he had been discriminated against in that only those individuals
who formed the leadership
of the laboratory technician (of whom he
was one) had been dismissed whereas others, who are not in the
leadership, were given
a sanction short of dismissal. The arbitrator,
at the instance of the respondent, was then asked to make a ruling on
jurisdiction.
The basis of the request was that the issue of
discrimination had not been raised at the commencement of the
hearing, nor had this
been put to any of the respondent’s
witnesses or raised by the applicant’s witnesses.
[3] The arbitrator came to the
conclusion that where a party alleges discrimination as a basis for
the dismissal, this falls within
the ambit of the automatically
unfair reasons for dismissal referred to in section 187 (1) of the
LRA and that the dispute or to
be referred to this court. The
arbitrator went on to hold that the bargaining council had no
jurisdiction ‘to entertain such
a dispute at the arbitration
stage’ and dismissed the matter on account of the lack of
jurisdiction. The ruling is dated
16 May 2013.
[4] The applicant filed a statement of
claim in this court on 1 November 2013. In terms of the applicable
law, the time period the
referral of dispute to this court commences
on the date of the certificate, i.e. 13 February 2012. It is common
cause that the
referral is accordingly some one year and eight months
after the certificate was issued, and five months from the date of
the jurisdictional
ruling issued by the bargaining council.
[5] In his application for condonation,
the applicant states that after the jurisdictional ruling was made,
he was informed by his
union representative, a Mr Adams, that the
matter would be referred to his seniors. The applicant waited
approximately two months
for a response. He was advised at the end of
July 2013 that the union would not be able to assist him on account
of a lack of funds.
Adam told him that should he wish to take the
matter to the Labour Court, he would have to secure the services of a
private attorney.
Adams also advised the applicant that he had a
period of six months to refer the matter to the Labour Court from the
date of receipt
of the jurisdictional ruling. The applicant avers
that he was under the bona fide impression that he was well within
the prescribed
time limit when the statement of case was referred.
During the course of September 2013 the applicant visited Legal Aid
SA who
agreed to assist him. He consulted with an attorney during the
course of October 2013 when the statement of claim was drafted and
ultimately filed, as I have indicated, on 1 November 2013.
[6] While the delay in referring the
dispute to this court is not insubstantial, I must necessarily take
into account the fact that
the applicant pursued what he perceived to
be his rights by referring the matter to the bargaining council and
in particular, to
arbitration, within the applicable time limits. I
must also take into account the undisputed averment that the
applicant was under
the bona fide impression that he had six months
from the date of the jurisdictional ruling within which to file his
statement of
claim in this court. He sought advice and the statement
was ultimately filed on his behalf within this period. There is no
indication
on the papers before me that there was any undue delay on
the part of Legal Aid SA in taking the necessary instructions and
serving
and filing the statement of claim. On the contrary, they
acted with due diligence and regard to the fact that the referral was
late.
[7] Although the period of delay is not
insignificant, I am satisfied that the applicant has proffered a
reasonable explanation
for that delay. Insofar as the applicant’s
prospects of success are concerned, it seems to me that the
applicant’s
case is that he was discriminated against in the
sense that the real rather than apparent reason for his dismissal was
his involvement
in the employees’ forum. Of course, this is
more properly an averment of victimization rather than
discrimination, but it
seems to me that such a case is properly
pleaded in the statement of claim. It is always difficult to take a
view of an applicant’s
prospects of success only from the terms
of the statement of claim, but the court has traditionally held that
all that is required
is that the statement discloses a prima facie
case, which if proved at trial, would entitle the applicant to the
relief he or she
seeks. In most circumstances, provided that this
hurdle is overcome, the prospects of success are inevitable a neutral
factor.
In so far as the element of prejudice is concerned, it seems
to me that any prejudice to the respondent in granting condonation
would be outweighed by the prejudice that the applicant would suffer
were he to be precluded from having his claim adjudicated
by this
court. On balance, and having regard to all of the relevant factors,
I am persuaded that the late referral of the applicant’s
statement of claim ought to be condoned.
[8] Finally, I wish to comment on the
jurisdictional ruling made by the arbitrator. As I have indicated,
this was a ruling made
at the instance and request of the respondent,
after the applicant had given evidence to the effect that he
considered that the
respondent had discriminated against him and
committed an act of victimization. It is not for commissioners and
arbitrators, when
such evidence is given, to intervene in the
proceedings and make jurisdictional rulings which have the effect of
bringing a halt
to the proceedings and occasioning an inevitable
delay when the matter is then referred to this court. An applicant in
an unfair
dismissal claim makes an election to refer the matter to
arbitration or to refer the dispute to this court for adjudication.
The
applicant is dominus litis and the election made by the applicant
as to the forum in which the dispute is to be determined ought
to be
respected. Given the structure of the Act, the election is in most
instances dictated by the reason for dismissal. In a case
such as the
present, where the applicant was dismissed for misconduct and
referred a dispute for arbitration on those terms, it
was not for the
presiding arbitrator, after hearing some mention of discrimination
and victimization, to make a decision on that
basis alone to the
effect that those are the real rather than apparent reasons for
dismissal, and that he or she therefore has
no jurisdiction. In
effect, what the arbitrator did was to make a decision for the
applicant (and his union) as to what their case
ought to be. An
applicant’s case ought ordinarily to stand or fall on the
merits, on the terms in which it was referred.
Intervention of the
sort permitted in the present instance allows the respondent employer
in effect to dictate the course of the
proceedings, often to the
prejudice of the applicant employee.
[9] I appreciate that there are
inevitably those cases where a referring party is unaware of the
jurisdictional divide between this
court and the CCMA or a bargaining
council based as it is, on the reason for dismissal and that in some
cases, particularly at
the phase of conciliation, guidance is
appropriate. What is not appropriate, as I have sought to indicate
above, is the patronizing
approach indicated by the facts in the
present instance where on the basis of a bald assertion made during
the course of giving
evidence in chief or cross-examination, the
arbitrator decides on that basis alone that he or she has no
jurisdiction to further
entertain the claim.
[10] The consequence of this practice
(and from what I have observed, it is widespread) is that in many
instances, a dispute is
referred to this court by the applicant
acting on a jurisdictional directive or ruling, only for the evidence
to disclose that
the claim, in reality, does not concern an
automatically unfair reason for dismissal at all. It is not uncommon
to have applicants
before this court in such proceedings, having
incurred the costs of referral, to disavow any reliance on an
automatically unfair
reason for dismissal and state that the only
reason for the referral is the directive or ruling issued by the
commissioner. The
result is the inevitable referral of the matter
back to the CCMA or a bargaining council for arbitration. (Although
this court
is empowered, by consent between the parties, to continue
the hearing by sitting as an arbitrator, for obvious reasons, this is
not a desirable practice.) In other instances, unscrupulous employers
who have taken the jurisdictional points prior to or during
arbitration hearings that have occasioned the referral, then except
to the statement of claim as disclosing no cause of action
justiciable by this court.
[11] In short: commissioners and
arbitrators must determine disputes referred to arbitration on the
merits. If the case presented
by the referring party discloses an
unfair dismissal, that party is entitled to a remedy within the
limits prescribed by the LRA.
If not, the claim must be dismissed. It
is not open to commissioners and arbitrators to discontinue
proceedings on account of a
lack of jurisdiction only because there
is some suggestion that the nature of the claim may be one that
potentially could give
rise to a case of dismissal for a reason
listed as automatically unfair and the enhanced compensation awards
that accompany such
claims.
[12] For the above reasons, I make the
following order:
1. The late referral of the applicant
unfair dismissal claim to this court is condoned.
2. There is no order as to costs.
Andre van Niekerk
Judge
Instructed By:
For the applicant: Ms. E van Staden,
Legal Aid SA
For the third respondent: Mr J vd
Walt, Labuschagne Van Der Walt Inc.