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[2017] ZALCJHB 169
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Solidarity obo Maritz v Hellberg Farms and Others (JS351/16) [2017] ZALCJHB 169 (20 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Case
no
J 1842/16
JS351/16
SOLIDARITY obo JF
MARITZ
Applicant
and
HELLBERG
FARMS
First
Respondent
COMMISSION
FOR
CONCILIATION,
Second
Respondent
MEDIATION
AND ARBITRATION
JOBE
MIZBENI SITHOLE
N.O
Third
Respondent
Heard:
17 February 2017
Delivered:
20 February 2017
JUDGMENT
VAN
NIEKERK J
[1]
There are two applications that serve before the court. The first is
an application to condone the late filing of an application
in terms
of s 189A (13); the second an application to consolidate the
application in terms of s 189A (13) with the referral made
under case
number JS351/16.
[2]
The factual background is canvassed in the papers and need not be
repeated. In essence, the applicant’s challenge is to
the
procedural fairness of his dismissal for operational requirements,
effected on 24 February 2016. In terms of the applicable
time limit,
the period within which the applicant was required to file an
application to dispute the procedural fairness of his
dismissal
expired on 26 March 2016. On 5 July 2016, the applicant referred a
dispute to the court in which he contended that his
dismissal was
procedurally and substantively unfair. In its response to the
statement of claim, the first respondent raised a jurisdictional
point to the effect that the court did not have jurisdiction to
determine the procedural fairness of the applicants dismissal,
by
virtue of the application of s 189A(18) of the LRA. On 23 August
2016, the applicant filed an application under that section
and on 8
September 2016 filed an application to condone the late filing of the
application, as well as an application to consolidate
the two
matters.
[3]
The factors that the court must necessarily take into account in the
exercise of its discretion in relation to any application
for
condonation are well established. Principally, these are the period
of the delay, the explanation proffered for the delay and
the
applicant’s prospects of success. There is an additional factor
that must necessarily be taken into account in the matter
such as the
present. This court has made clear on more than one occasion that the
purpose of s 189A(13) is one that enables this
court to supervise an
ongoing retrenchment process or one that has recently been concluded;
it is not a remedy that is available
well after dismissals have been
effected. The section intends to ensure that a fair process is
followed; it is not a means to thwart
retrenchment itself or to claim
compensation long after the proverbial horse has bolted (see
Insurance and Banking Staff Association v Old Mutual Services and
Technology
(2006) 27
ILJ
1026 (LC)). To the extent that
the applicant seeks redress in terms of s 189A (13), the court must
necessarily have regard to the
fact that this is a provision
ordinarily reserved for urgent intervention in a consultation process
involving a significant number
of employees.
[4]
The applicant advances as his principal reason for the delay, the
contention that he had not been alerted to a dismissal in
terms of s
189A. It would appear that the applicant approached his union after
the consultation process had already commenced.
After the 189 (3)
notice had been issued in December 2015, a facilitation meeting took
place on 15 January 2016. The applicant
was present at the meeting,
which was facilitated by the second respondent and chaired by the
third respondent. It was agreed at
the meeting that there was no
alternative to retrenchment. Consensus was also reached on severance
pay and that retrenchments would
be affected on 25 January 2016. On
that date, the first respondent issued termination letters to all of
its employees. The first
respondent was informed on 12
February
2016 that the applicant did not receive a termination letter; a
letter was furnished to him on 24 February 2016. It is
not in dispute
that the applicant had full knowledge of the first respondent’s
fraught farming operations since at least
August 2015, and that he
had already expressed himself as part of the consensus reached as a
result of the second respondent’s
facilitation regarding the
inevitability of the cessation of the first respondent’s
farming business and the terms on which
its employees would be
retrenched. Of particular relevance in the present instance is the
successful intervention in the consultation
process by the second and
third respondents, and the outcome of that intervention. The
applicant contends that the proceedings
were ‘ambiguous’,
but he does not elaborate of this contention nor does he explain why
at the time he did not raise
any concerns with the members of the
first respondent’s management present, or with the facilitator,
the third respondent.
[5]
In short, the delay in filing the s 189A application is excessive,
the explanation inadequate and the prospects of success minimal
if
they exist at all.
[6]
In the circumstances, the application for condonation stands to be
dismissed. It follows that the application for consolidation,
which
is predicated on a successful application for condonation, should
also be dismissed. In my view, given the broad discretion
conferred
on the court by s 162, there is no reason why costs ought not to
follow the result.
I
make the following order:
1. The applications for condonation
and consolidation are dismissed, with costs.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
REPRESENTATION
For
the applicant: Union official
For
the first respondent: Mr R Maddern, Wright, Rose Innes Inc.