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[2015] ZALCPE 35
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Jones and Others v Cold Chain (Proprietary) Limited (P09/14) [2015] ZALCPE 35 (26 May 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not Reportable
Case no: P09/14
In
the matter between:
CARMEN
JONES
First Applicant
CHARLEEN
NORMAN
Second Applicant
PETRO
VAN
ZYL
Third Applicant
and
THE
COLD CHAIN (PROPRIETARY)
LIMITED
Respondent
Heard:
29 April 2014
Delivered:
22 May 2015
Summary:
When a dispute of fact cannot be resolved on affidavits the matter
must be referred to oral evidence.
JUDGMENT
LALLIE
J
Introduction
[1]
The applicants launched this application seeking an order declaring
the respondent’s purported termination of their contracts
of
employment for the respondent’s operational requirements
procedurally unfair. They further sought the respondent to reinstate
them retrospectively on terms and conditions no less favourable than
those which existed on 31 December 2013, the date of the termination
of their contracts. In addition, they seek the respondents to be
directed to consult within them as envisaged in section 189A of
the
Labour Relations Act 66 of 1995 (“the LRA”),
alternatively, to pay them compensation. The application is opposed
by the respondent.
Background
facts
[2]
In 2013, the respondent took a decision to restructure its business.
In August 2013, it made preliminary presentations to its
employees on
the issue. On 9 September 2013, it issued a notice in terms of
section 198 (3) of the Labour Relations Act 66 of 1995
(“the
LRA”) in which it invited its employees to make representations
on issues it intended consulting with them on.
It promised to
schedule individual meetings for consultations after receiving the
proposals from the employees. It further advised
employees that
individual consultation meetings would be scheduled during the month
of October for consultation with affected employees.
A group
consultation was held in October 2013. On 4 December 2013, the first
applicant was issued with a letter terminating her
services with
effect from the end of that month. The second and third applicants
submitted that they were informed of their dismissal
on 27 November
2013. All the applicants were dismissed for the respondent’s
operational requirements. The applicants submitted
that the
respondent dismissed them as envisaged in section 213 of the LRA in a
dismissal exercise governed by section 189A of the
same Act. In the
application at hand, the applicants are challenging the procedural
fairness of the dismissals. In its answering
affidavit the respondent
raised a point
in limine
to the effect that the applicants
launched their application outside the 30 day period prescribed in
section 189 A (13) of the LRA.
Consequently, the applicants filed an
application for condonation.
Condonation
[3]
The applicants filed this application 27 days late. Their explanation
was that they were dismissed with effect from the end
of December
2013. They assumed that the date of their dismissal was 31 December
2013, as it was the last date in respect of which
they would be paid.
The first applicant received legal advice in January 2014 that the
applicants should have referred their dispute
to the Labour Court 30
days from the date of the dismissal, which, contrary to their
understanding, was 27 November and 4 December
2013, the date on which
they were advised of the termination of their contracts of
employment.
[4]
It is trite that in deciding condonation applications the factors to
be taken into account include the extent of the delay,
its reasons,
prospects of success of the applicant for condonation in the main
dispute, prejudice that each party will suffer if
condonation is
granted or refused as well as the interests of justice. The 27 days’
delay is not excessive as it is included
in the December holidays.
The explanation proffered by the applicants is reasonable as their
error determining the dismissal date
is understandable. It is not
unreasonable for an employee to believe that his or her date of
dismissal is the last day on duty
or the last day of the payment of
his or her remuneration. The applicants have good prospects of
success in that they could be
successful in the main dispute if the
allegation they sought to rely on, that the respondent failed to
consult with them before
their dismissal is proved. The application
for condonation must, in the circumstances, succeed.
Dispute
of fact
[5]
It is common cause that on 9 September 2013, the respondent issued a
notice in terms of section 189 (3) of the LRA inviting
its employees
to consult with it on the possibility of dismissal owing to its
operational requirements. In October 2013, the respondent
held group
consultations. The first applicant missed the consultation as she was
on study leave. The first applicant submitted
that she was called by
Mr Chrysanthou (“Chrysanthou”) on 27 November 2013, who
informed her that she was going to be
dismissed for the respondent’s
operational requirements. She denied having participated in any
consultation and submitted
that the respondent failed in its duty to
consult with her before taking the decision to dismiss her. The
respondent conceded that
the meeting took place. The parties differ
on its purpose and agenda. The respondent submitted that the meeting
was an individual
consultation between the first respondent and her
manager. Its purpose was to further consult with the first applicant
individual
on alternative positions. She was informed of her
dismissal after she had made her unwillingness to consider
alternative positions
clear.
[6]
The second respondent was on sick leave when the October consultation
was held. She submitted that on her return from hospital
on 27
November 2013, she was told that her position would be redundant and
her services were no longer required. The respondent
submitted that
the meeting the second applicant referred to was in fact a
consultation with her manager Mr Van Den Berg (“Van
Den Berg”)
in which she was given reasons for such redundancy. Having expressed
the view that she understood the reason for
the redundancy of her
position, she became emotional and requested an afternoon off and to
be excused from attending the group
consultation which was scheduled
for 28 November 2013. She handed in her keys and never returned to
work. The third applicant’s
gripe was that the respondent told
her that her position had become redundant when it in fact was
assumed by an alternative employee.
The only issue she was consulted
on was severance pay which the respondent failed to pay in full.
[7]
The respondent submitted that the applicants knew as August 2013 that
there would be job losses. The first and third applicants
were
present in the consultation meetings of the 24 and 31 October 2013
and raised no objection. It denied that the consultation
held with
the third applicant was defective as she rejected an alternative
position and accepted the severance pay she was offered.
[8]
I have considered the dispute of fact on the parties’ versions.
The applicants submitted that it could only be resolved
through oral
evidence while the respondent argued that it was possible to resolve
it with the assistance of the relevant authorities
including the
decision in
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A). I have considered the arguments
forwarded for both approaches. I am however, not convinced that this
application can be decided
on affidavit as the dispute of fact is
material and goes to the heart of the matter on hand. The decision
whether the consultations
were held has far-reaching effects on both
parties as it has an influence on the decision on the procedural
fairness of the dismissal
which may have financial implications. A
correct factual basis for that decision is therefore necessary. The
dispute of fact needs
to be resolved through oral evidence in order
to create that basis as this application cannot be properly decided
on affidavit.
[9]
In the premises, the following order is made:
9.1
The application for condonation of the late filing of this
application is granted.
9.2
The matter is referred to oral evidence on the following conditions:
9.3
The founding and replying affidavit will be regarded as the statement
of case and the answering
affidavit the statement of defence.
9.4
Evidence to be led will be in respect of:
9.4.1
Whether the first and second applicant attended a group consultation
in Port Elizabeth on 24 October 2013.
9.4.2
Whether the meeting held on 27 November 2013 between the first
applicant and Chrysanthou was an individual consultation.
9.4.3
Whether the meeting held on 27 November 2013 between the second
applicant and Van Den Berg was in individual consultation.
9.4.4
Whether the third applicant was consulted on severance pay only.
9.4.5
Costs to be cost in the trial.
_____________________________
Lallie
J
Judge
of the Labour Court of South Africa
APPEARANCES
For
the Applicant: Mr Soldatos of Fluxmans
Incorporated
For
the Respondent: Mr Snyman of Snyman Attorneys