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[2017] ZALCJHB 3
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Association for Mine Workers and Construction Union (AMCU) and Others v Oil Separation Services Northern Province CC (JS815/16) [2017] ZALCJHB 3 (11 January 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no: JS815/16
In
the matter between
THE
ASSOCIATION FOR MINE WORKERS
AND
CONTRUCTION UNION
(“AMCU”) First
Applicant
THE
AMCU MEMBERS AS PER ANNEXURE “A1” Second
To Further Applicants
and
OIL
SEPARATION SERVICES NORTHERN PROVINCE
CC Respondent
Heard:
25 November 2016
Delivered:
11 January 2017
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
The First Applicant, Association of Mineworkers and Construction
Union (AMCU) seeks condonation for the late filing of a statement
of
claim on behalf of its members (‘The dismissed employees’).
The Statement of Claim was initially filed without an
application for
condonation. Subsequent to the Respondent raising a point
in
limine
in its Statement of Response, a substantial application
for condonation was thereafter filed. In the main action, AMCU
challenged
the fairness of the retrenchment of its members. The
application for condonation is opposed by the Respondent.
Background:
[2]
The Respondent is in the business of recyclable waste collection,
waste treatment, bulk oil recovery and scrap metal. It had
several
contracts with various entities in terms of which it rendered various
services. One of its contracts was with Mogoalakwena
Platinum Mine
(‘The Mine’). The retrenchments took place on 30 October
2015, after notices of termination were issued
on 9 October 2015. The
retrenchments occurred against the following background;
2.1 On or about July 2015
Mr Johan Lombard, the Respondent’s CEO and sole member, met and
advised the employees that the company
was contemplating
retrenchments of some of them due to its poor financial status. The
position the company found itself in was
because of the Mine having
terminated a portion of the Respondent’s contract with it,
resulting in the latter no longer being
required to conduct sludge
operations;
2.2 54 of the 85 jobs
were identified as those that may be affected by the retrenchment
exercise. The retrenchment process was then
referred to the
Commission for Conciliation Mediation and Arbitration (“CCMA”)
for facilitation in terms of section
189A of the Labour Relations
Act. Despite four facilitation meetings, the parties could not agree
on a variety of issues. This
then prompted the Respondent to issue
dismissal notices as mentioned above.
2.3 There is a dispute as
to the number of employees retrenched. The Applicants contend that 54
were retrenched, whilst the Respondent
contended that 35 were
retrenched. AMCU however for the purposes of this application and the
main claim represents 29 of the dismissed
employees.
[3]
AMCU thereafter referred an unfair dismissal dispute to the CCMA. The
matter was conciliated on 25 November 2015, resulting
in a
certificate of outcome being issued on that date. The dispute ought
to have been referred for adjudication by no later than
26 February
2016 in terms of the requirements of section 191 (11) (a) of the LRA.
The statement of claim was only filed and served
on 3 October 2016.
The
legal framework and evaluation:
[4]
The Court’s discretion when considering applications for
condonation derive from the provisions of section 191 (11) (b)
of the
LRA read with Rule 12 of the Rules of the Conduct of Proceedings.
Thus, on good cause shown, the Court may condone the non-observance
of the time frames.
[5]
The court in
Melane
v Santam Insurance Co. Ltd
[1]
identified the factors to be considered in applications for
condonation 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 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 therefor, the prospects of
success and the importance of the case. Ordinarily these
facts are
interrelated, they are not individually decisive, save of course that
if there are no prospects of success there would
be no point in
granting condonation. Any attempt to formulate a rule of thumb would
only serve to harden the arteries of what should
be a flexible
discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good explanation
may help to
compensate prospects which are not strong. Or the importance of the
issue and strong prospects may tend to compensate
for a long delay.
And the Respondent’s interests in finality must not be
overlooked”
[6]
Further principles applicable to applications for condonation are
that an application should be filed without delay as soon
as a party
to litigation becomes aware of the need to file such an
application
[2]
. To enable this
court to properly exercise its discretion, a party seeking
condonation must set out all the facts and circumstances
relating to
the delay, and most importantly, must provide a satisfactory
explanation and account for each period of the delay.
Any period of
delay that is unaccounted for, will result in an indulgence being
refused
[3]
.
The
period of the delay and explanation:
[7]
The statement of claim was filed on 03 October 2016, some seven
months outside of the 90-day period contemplated in section
191 (11)
(a) of the LRA. Notwithstanding the need for condonation at that
stage, such an application was filed and served on 17
October 2016,
some two weeks later. It cannot be debatable that the delay is indeed
excessive in the extreme.
[8]
The AMCU’s Head Legal Advisor, (Mr Philippus Daniel Marais)
deposed to the affidavit in support of the application for
condonation. He had attributed the delay to the following factors;
8.1 Throughout the
facilitation and conciliation processes, a Mr Lesiba Mabilu, the then
AMCU Regional Organiser had represented
the Applicants and therefore
had the knowledge of the facts of the matter;
8.2 Mabilu resigned from
the employ of AMCU in January 2016. As Regional Organiser, he had the
sole responsibility of referring
the dismissal disputes to this Court
after the certificate of outcome was issued by the CCMA. Mabilu did
not however refer the
matter to this Court as expected of him, and
had upon his resignation, refused to participate in a formal handing
over of matters
to his replacement;
8.3 Prior to Mabilu’s
resignation, and subsequent to the conciliation proceedings, one of
the dismissed employees, Mr Elias
Thole had contacted with Mabilu to
establish the status of their matter, and was assured that it was
being dealt by the AMCU’s
legal department. Thole and the other
dismissed employees accordingly had no reason not to accept Mabilu’s
assurances;
8.4 In June 2016,
the Respondent had initiated and finalised a further retrenchment
exercise. At that stage, the dismissed
employees were concerned about
how their matter was being dealt with. They had not received any
update from Mabilu on their matter,
and had directly approached the
CCMA to establish its status. They then were informed by the
officials of the CCMA that the latter
did not have the jurisdiction
to adjudicate the matter and as a result, it had been referred it to
the Labour Court. (A document,
Access Control, dated 21 July 2016 was
attached to the founding papers to demonstrate that indeed Thole had
approached the CCMA
on that date)
8.5 Thole and the other
dismissed employees then approached the Labour Court on 02 August
2016 with the intention of establishing
whether their matter had
indeed been referred. They were then advised that no such dispute had
been referred. Thole then contacted
Mabilu who again assured him that
the matter was referred to the AMCU’s legal department. Mabilu
further advised Thole that
he had since resigned from AMCU, and that
all further enquiries in respect of their matter should be directed
to AMCU;
8.6 Thole thereafter
directed communication to AMCU’s Limpopo Regional office,
inquiring about the status of the matter. The
Regional Secretary
within the Regional Office indicated that a diligent search had been
conducted and that the file in respect
of the matter could not be
traced;
8.7 Thole went back again
to Mabilu who advised him that the file was at the union’s
Witbank office. Again, a search was conducted
at the Witbank office
and the file could be located. To date, no such file could be
located, necessitating the need to reconstruct
the file from Mabilu’s
emails and work computer;
8.8 Ms Tsharelo Maphoto,
a paralegal at the Applicant’s Witbank office had then
scheduled a meeting with Marais to draft the
statement of claim for
29 August 2016. That meeting was however cancelled as a result of an
urgent matter, in respect of a strike
action that the Head of Legal
Department had to attend to. This Court heard the dispute in respect
of that urgent matter under
case number J190/16 on 30 August 2016;
8.9 The first opportunity
that Marais could have to hold a meeting with the Applicants was in
the middle of September 2016, and
it had become apparent at that
stage that the matter had not been referred to either AMCU’s
Legal Department or to this Court
as Malibu had assured. A meeting
was thereafter scheduled with the Applicants’ attorneys of
record for 30 September 2016,
resulting in the statement of claim
being filed on 03 October 2016.
[9]
In the Respondent’s answering affidavit deposed to by its Human
Resources Manager, Megan Lombard, it was contended that
the delay was
excessive and incapable of being condoned by this Court in the light
of dilatoriness on the part of AMCU and its
members. Further
contentions made on behalf of the Respondent were as follows;
9.1 AMCU was on its own
version, negligent and dilatory in the handling of the matter, and
the Second to Further Applicant were
entitled to make a claim against
AMCU;
9.2 The matter was not
referred timeously to this Court as the Applicants were aware that
they had no prospects of success in the
main action;
9.3 Mr Mabilu was not the
only official employed by the First Applicant as a Regional
Organiser, and in fact, the Respondent, did
not deal with him. There
were other shop stewards within the employ of the Respondent who had
intimate and working knowledge of
the facts of the matter;
9.4 If AMCU and its Legal
Department had been diligent, they would have known that the matter
had not been referred to this Court,
and there was nothing that
prevented it, its officials, organisers or shop stewards within the
Respondent to have referred the
matter timeously, at the very least
after the end of February 2016;
[10]
It is apparent that the Applicants sought to blame Mabilu for the
delay in filing and serving the statement of claim. The issue
however
is whether this is a reasonable and acceptable explanation. The
obvious answer is in the negative. The starting point is
that to the
extent that a Union and its officials are mandated to act on behalf
of its members, especially in regards to all matters
pertaining to
employees’ rights in the LRA, there is in my view, no reason to
distinguish them from the ordinary attorney/client
relationship.
[11]
It is trite that litigants cannot be absolved from the tardiness of
their own chosen representatives. The principles in this
regard have
long been set out by Steyn CJ in
Saloojee & another v Minister
of Community Development
in the following terms;
"In Regal v
African Superslate (Pty) Ltd
1962 (3) SA 18
(AD) ... this court came
to the conclusion that the delay was due entirely to neglect of the
applicant’s attorney, and held
that the attorney’s
neglect should not, in the circumstances of the case, debar the
applicant, who was himself in no way
to blame, from relief. I should
point out, however, that it has not at any time been held that
condonation will not in any circumstances
be withheld if the blame
lies with the attorney. There is a limit beyond which a litigant
cannot escape the results of his attorney’s
lack of diligence
or the insufficiency of the explanation tendered. To hold otherwise
might have a disastrous effect upon the observance
of the rules of
this court. Considerations ad misericordiam should not be allowed to
become an invitation to laxity. In fact this
court has lately been
burdened with an undue and increasing number of applications for
condonation in which the failure to comply
with the rules of this
court was due to neglect on the part of the attorney. The attorney,
after all, is the representative the
litigant has chosen for himself,
and there is little reason why, in regard to condonation of a failure
to comply with a rule of
court, the litigant should be absolved from
the normal consequences of such a relationship, no matter what the
circumstances of
the failure are.… A litigant, moreover, who
knows, as the applicants did, that the prescribed period has elapsed
and that
an application for condonation is necessary, is not entitled
to hand over the matter to his attorney and then wash his hands of
it. If, as here, the stage is reached where it must become obvious
also to a layman that there is a protracted delay, he cannot
sit
passively by, without so much as directing any reminder or enquiry to
his attorney… and expect to be exonerated of all
blame; and
if, as here, the explanation offered to this court is patently
insufficient, he cannot be heard to claim that the insufficiency
should be overlooked merely because he has left the matter entirely
in the hands of his attorney. If he relies upon the ineptitude
or
remissness of his attorney, he should at least explain that none of
it is to be imputed to himself. That has not been done in
this case.
In these circumstances I would find it difficult to justify
condonation unless there are strong prospects of success."
[4]
[12]
In the light of the above principles, it is not sufficient for the
Applicants simply to lay the blame for the delay in filing
their
statement of claim solely on Mabilu. It was correctly pointed out on
behalf of the Respondent that in the light of the extent
of the
delay, the explanation proffered was equally inadequate and not
reasonable.
[13]
The second round of retrenchments took place in February 2016, and
were finalised in May 2016. There was therefore no
explanation
for the delay in respect of the months after Mabilu had resigned
between January 2016 and June 2016. Thus, between
November 2015 after
the conciliation process and June 2016 when the next round of
retrenchments took place, nothing had been done
by either AMCU or the
dismissed employees themselves other than the odd occasion that Thole
had contacted Mabilu, to ensure that
the statement of case was
timeously filed. Even if Mabilu had informed Thole at least on no
less than three occasions that the
matter had been referred to the
AMCU’s legal department, still, there is nothing to demonstrate
that Thole and others had
made any attempts at verifying that indeed
their case was referred to the legal department, and that it was
being attended to as
assured by Mabilu. Furthermore, it is more than
probable that Thole and others knew after February 2016 that Mabilu
had resigned
from AMCU. For them to persist in enquiring from him as
to the status of their matter rather than directly contacting the
Union
is inexplicable.
[14]
As it has already been stated, a party seeking indulgence from the
court must give an account for each period of the delay,
and in this
case, the Applicants were found wanting on all accounts, inclusive of
the period between November 2015, and June 2016.
Furthermore, upon
Thole verifying with the CCMA that indeed the latter did not have
jurisdiction to determine their dispute, very
little information is
proffered in regards to what was done between July 2016 after Thole
visited the CCMA and October 2016 when
the statement of case was
ultimately filed. Worst still, there is no explanation as to the
reason it took the Applicants a further
two weeks to file this
application, when it was clearly apparent at that stage that such an
application was necessary.
Prospects
of success:
[15]
It was submitted on behalf of the Applicants by Ms Greyling-Coetzee
that although on the face of it, a delay of Seven (7) months
was
excessive, but that the prospect of success in this matter were very
strong, and thus accordingly compensated for that extensive
delay. In
NUM v
Council for Mineral Technology
[5]
,
it was held that;
“…
.
without a reasonable and acceptable explanation for the delay, the
prospects of success are immaterial and without prospects of
success,
no matter how good the explanation for the delay, an application for
condonation should be refused”
[16]
Similarly, in
Moila
v Shai N.O. and Others
[6]
,
the
court (per Zondo JP as he then was) had commented on the period of
delay in that matter by stating that;
‘
I do not have
the slightest hesitation in concluding that this is a case where the
period of delay is excessive and the appellant's
purported
explanation for the delay is no explanation at all. I accept that the
case is very important to the appellant
.
However, the weight
to be attached to this factor is too limited to count for anything
where the period of delay is as excessive
as is the case in this
matter and the explanation advanced is no explanation at all. If ever
there was a case in which one can
conclude that good cause has not
been shown for condonation without even considering the prospects of
success, then this is it.
Where, in an application for condonation,
the delay is excessive and no explanation has been given for that
delay or an “explanation”
has been given but such
“explanation” amounts to no explanation at all, I do not
think that it is necessary to consider
the prospects of success.
’
[17]
In this case, in the light of the conclusions reached that the
Applicants’ attempt to lay the blame squarely on Malibu
cannot
be accepted as an excuse, and further in the light of their failure
to account for each period of the delay, which is excessive
in the
extreme, it follows that the explanation, if any, does not amount to
an explanation at all, and it thus little purpose would
be served by
considering the Applicants’ prospects of success in the matter.
[18]
For the sake of completeness however, and to the extent that in
considering applications of this nature the interests of justice
should be taken into account
[7]
,
the basis of the Applicants’ claim should be examined. Primary
amongst the complaints raised in regards to the retrenchments
were
that it was not necessary for the Respondent to effect the
terminations; that the parties had despite facilitation, not agreed
upon the selection criteria and that the criteria applied was not
fair. It was further contended that to the extent that the Respondent
sought to retain skills, such an approach had not been consistently
applied; that no attempt was made at considering alternative
positions; that the Respondent had not considered nor applied
bumping; and that there was selective re-employment of certain
employees
which was unfair.
[19]
It is my view that upon a consideration of all the facts, the
Applicants’ prospects of success on the merits of the main
claim are indeed non-existent. It was common cause that following the
of retrenchments of October 2015, the Respondent had followed
with a
similar exercise in February 2016, which was completed in June 2016.
It was not disputed by the Applicants that the second
round of
retrenchments had resulted in all the employees of the Respondent
(those not retrenched during the first round) being
dismissed, and
that as at 31 May 2016, the Respondent had no employees left. Based
on this undisputed fact alone, it becomes difficult
for any argument
that there was no need to retrench in October 2015 to be sustainable.
The mere fact that about 18 employees were
subsequently recalled in
June 2016 on temporary contracts does not imply that there was no
need to retrench at the time.
[20]
Although there is a dispute about the selection criteria used in
dismissing the employees, there is indeed some form of agreement
that
the Respondent utilised LIFO, with the proviso that skills would be
retained. The Applicants in the founding affidavit went
at length in
comparing instances where the Respondent allegedly applied this
selection criteria inconsistently, even though it
had not been agreed
to. In my view, however, this elaborate comparison between who
should and should not have been identified
for retrenchment based on
LIFO and the retention of skills does not take the Applicants’
case any further.
[21]
It is trite that in accordance with the provisions of section 189 (7)
(b) of the LRA, in instances where the parties have not
agreed on the
selection criteria, the employer is at liberty to apply a criterion
that is fair and objective. Thus, LIFO as a stand-alone
criterion is
not the only fair and objective criteria. The employer, depending on
its own operational requirements, is entitled
to adopt criteria such
as experience, competency, efficiency and skills. In this case, it
was common cause that the Respondent
applied LIFO, educational
qualifications and retention of skills as a criterion, when selecting
employees for retrenchment. That
criteria might not necessarily have
been to the liking of the Applicants, but that in itself does not
make it unfair. Be that as
it may, there is no merit in the
Applicants’ contention that the Respondent had ‘cherry-picked’
employees to
be retrenched, and there is further nothing to suggest
that in applying the criteria, the Respondent did so capriciously or
in
bad faith.
Prima facie
, there is no basis for a conclusion
to be reached that overall, the criteria applied by the Respondent
had not met the threshold
of objectivity and fairness.
[22]
The Applicants had also raised concerns surrounding the Respondents’
failure to consider alternative positions or bumping
prior to
terminations. Be that as it may, it is not stated which of those
alternative positions where available, and how bumping
was to be
effected. The Applicants also raised concerns surrounding voluntary
packages that were offered to affected employees
without an
agreement. To the extent that it is not stated that such voluntary
packages fell short of basic requirements contained
in section 41 (2)
of the Basic Conditions of Employment Act, a failure to agree on
voluntary packages does not in itself make the
retrenchment exercise
unfair.
[23]
It was also argued on behalf of the Applicants that since the
Respondent had selectively re-employed some of the retrenched
employees, that on its own was sufficient to set aside the
terminations. There is clearly no merit in this assertion in the
light
of the Respondent’s contention that the re-employment of
some of the employees took place after June 2016
albeit
on a
temporary basis. It follows that in the light of all the above
considerations, the Applicant’s prospects of success
are
clearly remote, if not non-existent.
Conclusions:
[24]
In the light of the excessive nature of the delay in filing the
statement of claim, the lack of a satisfactory or reasonable
explanation for the delay, and the lack of prospects of success on
the merits of the main claim, it follows that it would not be
in the
interests of justice to grant condonation. Worst still, in the light
of these factors, it is the Respondent that stands
to be severely
prejudiced if condonation was to be granted, as it would be compelled
to defend a claim that clearly has no merit.
[25]
I have further had regard to the requirements of law and fairness in
considering costs. The Applicants’ claim, other
than being
belated, was clearly ill-conceived. In the circumstances, there is no
reason in law and farness why AMCU should not
be burdened with the
costs of this application. Accordingly, the following order is made;
Order:
i. The application for
condonation the late filing of the Applicants’ statement of
claim is dismissed.
ii. The Applicants’
main claim is dismissed.
iii. The First
Respondent, (AMCU), is ordered to pay the costs of this application.
__________________
Edwin Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Adv.
D Greyling-Coetzee
Instructed
by:
Larry Dave Incorporated Attorneys
For
the Respondent:
Adv. S Bekker
Instructed
by:
Nothnagel Attorneys
[1]
1962
(4) SA 531
(A) at 532B-E
[2]
See Meintjies v HD Combrinck (Edms) Bpk
1961 (1) SA 262
(A) at 263
H-264B.
[3]
See NUMSA and another v Hillside Aluminium [2005] 6 BLLR 601 (LC)
[4]
1965 (2) SA 135
(A) 141B-H. See also Silplat (Pty) Ltd v Commission
for Conciliation Mediation and Arbitration and Others
[2008] ZALC 33
;
[2011] 8 BLLR
798
(LC) at paragraphs 54 to 58
[5]
1999 3 BLLR 209
(LAC) at p211 paragraph G-H
[6]
(2007) 28 ILJ 1028 (LAC) at para 34
[7]
See
Brummer v Gorfil Brothers Investments (Pty) Ltd
[2000] ZACC 3
;
[2000] (2) SA 837
(CC) at 839 F