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[2017] ZALCJHB 285
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White v Alstom S&E Africa (Pty) Ltd (JR1585/15) [2017] ZALCJHB 285 (7 August 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
CASE
NO: J
R1585/15
In
the matter between:
GEORGE
ANDRIES
WHITE Applicant
and
ALSTOM
S&E AFRICA (PTY)
LTD First
Respondent
Heard
:
4 August 2017
Delivered
:
7 August 2017
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to condone the late filing of a statement of
claim. The certificate of outcome was signed by the CCMA
on 20 July
2016. The statement of claim ought to have been filed within 90 days
thereafter. The statement was served on the respondent
attorneys 19
December 2016, which the parties agree is 62 days outside of the
period prescribed by Rule 6.
[2]
The explanation for the delay is twofold. First, the applicant states
that he suffered a heart attack and was incapacitated.
The applicant
has attached a medical certificate to the application, certifying
that he was unfit for work between 30 August 2016
and 23 October
2016. Secondly, on 30 August 2016, the dispute was initially referred
to arbitration by a candidate attorney employed
by applicant’s
representatives. He states that after contacting the CCMA, he
realised that something was amiss when he was
not provided with a
case number. He also realised that the matter ought to have been
referred to this court for adjudication. This
much is obvious from
the certificate of outcome issued on 20 July 2016. The candidate
attorney admits that the lateness of the
referral was solely due to
his tardiness and his failure to apply himself to the matter with due
diligence.
[3]
Insofar as the applicant’s prospects of success are concerned,
the applicant submits that he has good prospects of success.
He was
employed by the respondent from 30 July 2012 to 31 May 2016. The
project on which he was engaged had been completed and
whose position
was no longer required. The fixed term contract in terms of which the
applicant was engaged provides that contract
terminates automatically
on the completion of the Medupi project ‘all at any stage that
your position is no longer in the
view of the company required’.
Although the statement of claim is not a model of clarity, the
applicant appears to contain
that his dismissal was automatically
unfair in that he was dismissed on account of his age. In support of
this contention, he avers
that he was told that his contract was
being terminated on account of the fact that he turned 65 in August
2015. The defence to
the applicant’s claim is that at the
relevant time, part of the project had been concluded, resulting in a
need to reduce
the number of employees on site, and in particular,
the number of safety officers. The respondent contends that the need
to reduce
the number of safety officers as a result of the completion
of a part of the project had the consequence that the applicant’s
fixed term contract terminated automatically. It would appear that
the employment of not all of the safety officers engaged on
the
project was to be terminated and that a process of selection was
applied. The respondent states that it took into account the
need to
retain the essential skills, the last in first out principle and
pensionable age. The respondent admits that the applicant
was over
its pensionable age and that he was before selected for
demobilisation. What is likely to be in dispute in the course
of any
trial therefore is whether the contract terminated automatically
(i.e. whether one or more of the conditions on which the
applicant’s
employment would terminate had been met) and whether it was fair of
the respondent in the circumstances to apply
a matrix of criteria
that included the applicant reaching the age of 65.
[4]
Although the applicant did not file a replying affidavit, there is no
dispute of fact that is sufficiently material that requires
the
Plascon Evans
approach to be adopted. The test to be applied
is well-established. The court must exercise discretion, having
regard amongst other
things to the period of the delay, the
explanation for the delay and the applicant’s prospects of
success in the main action.
No single factor is definitive –
the court must exercise discretion having regard to all of the
relevant facts and circumstances.
[5]
Although the court is concerned that labour disputes be resolved
expeditiously and that a failure to comply with prescribed
time
periods frustrate this statutory purpose, the delay in the present
matter is a lengthy one, but it is not inordinate. I accept
that in
terms of the medical certificate filed by him the applicant was
incapacitated and unfit for duty between 30 August 2016
and 23
October 2016. I also accept that the essential failure to file the
statement of claim within the prescribed time limit is
the fault of
the candidate attorney. While there is a limit to the extent to which
the court will accept the negligence of a representative
as an excuse
on the part of the litigant, in the present instance, the delay
caused by the candidate attorney’s negligence
is not
significant and the nature of his oversight is one which inclines me
to accept the reasonableness of his explanation. While
I am required
to do no more than take a
prima facie
view of the merits of
the case, it would seem to me from the pleadings that whether either
(or both) of the conditions stipulated
in the applicant’s
contract had been met is a matter that is best canvassed by evidence
and that to the extent that the applicant’s
claim is resisted
on the basis of what are contended to be his selection for
termination of employment on the basis of objective
criteria,
the fairness of the criteria both in their substance and application
are matters that are best argued, particularly since
it appears that
the applicant was advised of these criteria after the date of
his letter of termination, and since it does
not appear from the
applicant’s contract of employment that he was required to
become a member of any retirement fund or
that he was bound by the
rules of any such fund, at least insofar as retirement age is
concerned. In my view, it cannot be said
that the applicant has no
prospects of success. It follows that the application for condonation
should be granted. I do not intend
to make any order as to costs.
I
make the following order:
1. The late filing of the applicant’s
statement of claim is condoned.
2. The parties are ordered to convene
a pre-trial conference and to file a pre-trial minute within 21 days
of the date of this order.
--------------------------------
André
van Niekerk
Judge
REPRESENTATION
For
the applicant: Mr A Brandmuller, Brandmuller Attorneys
For
the responbdent: Mr L Frahm-Arp, Fasken Martimeau