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[2017] ZALCJHB 406
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Selvan v Crossroads Distribution (Pty) Ltd (JS182/17) [2017] ZALCJHB 406 (3 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS 182/17
In
the matter between
BRYAN
DAVID SELVAN
Applicant
and
CROSSROADS DISTRIBUTION (PTY)
LTD
Respondent
Heard:
01 September 2017
Delivered:
01 September 2017
Edited:
03 November 2017
EX
TEMPORE JUDGMENT
Cele,
J:
Introduction:
[1]
The application before me is
one brought in terms of section 191 (11)(a) and (b)
[1]
of the Labour Relations Act,
[2]
hereafter referred to as the LRA or the ‘Act’, where the
applicant seeks to be granted condonation for the late referral
of an
unfair dismissal dispute relating to retrenchment, to this court.
[2]
The respondent opposes the application acting on its capacity as the
erstwhile employer of the applicant.
Factual
background.
[3]
The applicant was employed by the respondent in the capacity of
a National Human Resources Manager.
[4]
In August 2015 the respondent commenced a process of retrenching
some 45 operational staff. This action was precipitated
in part
by the respondent having some difficulty in receiving payment on one
of the larger accounts, that is, from the South African
Post Office.
[5]
On 11 January 2016
the respondent then issued a Notice in terms of section 189A
[3]
of the LRA indicating that a further 120 operational staff members
were likely to be retrenched, given that the SAPO (South African
Post
Office) contract was due to come to an end on 31 March 2016.
[6]
The retrenchment process was facilitated by the Commission for
Conciliation, Mediation and Arbitration (CCMA).
On
15 April 2016 the scope of the section 189 (A) process was
extended by the respondent to include additional functions,
such as
support services. This is despite the fact that the employees in
these functions had not participated in the facilitated
process
referred to earlier on. In other words, what the respondent did in
April, was to serve further notices to those of its
employees who had
not been affected by the January notice.
[7]
By virtue of the position held by the applicant, the National HR
Manager, he (the applicant) was intimately involved in the
retrenchment process, which started in January as already alluded to.
[8]
On 20 April 2016 the applicant was advised of the respondent’s
intention to retrench him, on account of alleged redundancy
of his
role.
[9]
Assertions by the applicant: He
says that there was no real reason to retrench him. Alternatively,
his retrenchment could have been
avoided. His dismissal was presented
as a
fait accompli
.
He was not given proper notice of the respondent’s intention to
retrench him, as required by section 189
[4]
of the LRA.
[10]
The consultation process undertaken by the respondent was a sham and
no real attempt was made by the respondent to engage in
a meaningful
joint consensus seeking process, and he says, the procedure followed
by the respondent was so grossly unfair and done
with such
mala
fides
that it rendered the dismissal substantively unfair.
[11]
He was dismissed on account of the respondent’s alleged
operational requirements, with effect from 30 June 2016.
[12]
At the time of his dismissal, he was a member of the Solidarity
union, which was active in the workplace, which union had been
involved in the retrenchment process that had begun on the previous
year and also in January of the same year.
[13]
On 27 July 2016, Solidarity referred an unfair dismissal
dispute to the National Bargaining Council for the Road-freight
and
Logistics industry, (the Bargaining Council,), on the applicant’s
behalf.
[14]
Conciliation was then attempted by the Bargaining Council. This,
according to the applicant, was on 1 September 2016,
and it
remained unresolved. I think I saw a Certificate of Outcome that said
that it was issued on 1 October, not on 1 September,
2016. I
will just confirm that.
[15]
In the applicant’s papers he refers to it being September, but
I examined the Certificate and I have the Certificate.
It is
yes, 1 September. So the papers are correct. That is 1
September 2016, is the date when the Certificate of Outcome
was
issued. This is important in this matter.
[16]
The applicant says that he had reservations whether the Bargaining
Council had jurisdiction over his dispute, and these reservations,
he
says, were explained to his union representative. According to
him, the union dismissed those concerns that he had, and
insisted
that the dispute, after a fair conciliation had to be referred to the
Bargaining Council.
[17]
At the commencement of the application proceedings on
8 December 2016, the respondent as one would have expected,
raised an objection regarding the jurisdiction of the Bargaining
Council to arbitrate in this dispute, as it pertained to a
retrenchment
that involved a number of employees.
[18]
On 14 December 2016, the commissioner presiding issued a ruling
in terms of which she found that the Bargaining Council
lacked
jurisdiction to arbitrate this dispute.
[19]
According to the applicant, the ruling came to his knowledge only on
10 January 2017, and not in December, when it
had been
issued.
[20]
He then says that despite reservations of the applicant’s
prospects of establishing that he had been unfairly dismissed
at
arbitration at that stage, the union representative failed to provide
the applicant with any indication that the union would
be unwilling
to prosecute his claim in this court. That is what he alleges
himself.
[21]
I must comment at this stage that the union is not to blame here.
It took a position, clearly from the correspondence
given to me, that
the exchange that the union had with the applicant was such that the
unfair procedure would not be applicable
because of the fact that it
was a section 189 (A) retrenchment process.
[22]
The union had also formulated an opinion that there were no merits to
the substantive claim of unfair dismissal. That
was clearly
communicated to the applicant in the correspondence that he filed in
the papers before me.
[23]
The union, notwithstanding the position it had taken, still referred
the dispute to this Court, after the ruling that the Bargaining
Council had no jurisdiction.
[24]
On 6 February 2017, the applicant says that he was informed
that the matter had been referred to the union labour
department, so
that they would then consider it.
[25]
In the meantime, the applicant had consulted an advocate of his about
his matter, whilst he was negotiating and/or interacting
with the
union, he had an advocate that as also consulted by him and that was
assisting him in this matter.
[26]
He says then he regularly followed the status of his case, and
attempted to ensure that progress was made in prosecuting his
matter.
[27]
He says on 9 March 2017, he was compelled to approach the
court directly for guidance, as he was uncomfortable about
the lack
of progress when it comes to what the union was actually doing.
[28]
And then he says, in an effort to minimise legal costs, he attempted
to prepare his own statement of claim and a condonation
application.
However, he soon realised that this was not a simple matter,
and he then decided to allow the union to proceed
as it were
assisting him, but at the same time he had recourse to the advocate
that he heard approached earlier on.
[29]
He says the services of the advocate could not be effectively
utilised, given the fact that the union representative took a
position that they would not continue to represent him, whilst he was
consulting another attorney. In other words, they would not
take
brief from an advocate that he was consulting.
[30]
He however, decided finally to terminate the services of the union,
because he was not happy with what was going on, and he
then briefed
counsel on 22 March 2017, but counsel was not available.
There was a bit of a delay and a statement of case
was finally filed
or delivered on 10 April 2017.
[31]
When it was filed it was way out of time. It had to be
accompanied by a condonation application, which application is
before
me.
[32]
In summary therefore, in terms of the delay, the applicant concedes
that there was quite a sizeable delay, which is clearly
more than 90
days. In addition to the 90 days that he had within which he
could refer the dispute to this court.
[33]
The explanation he tendered is that the union was not as actively
involved as he wanted it to be in prosecuting the referral,
firstly.
Secondly, he says that he was misguided by the union, by referring
this dispute to the Bargaining Council, instead of
the referral to
this Court.
[34]
He annexed emails that suggested that he was communicating with the
union, trying to make out that the matter was supposed
to come to
this court a failed conciliation process, but that the union was of
the view that the matter had to go to the Bargaining
Council.
[35]
What is clear, though, is that the applicant and the union [Cell
phone/internet interference] [indistinct] as I have alluded
to
before. Clearly, the union was of the mind that the applicant
had no case, both on procedural and substantive fairness.
But
they somehow reluctantly proceeded to try and assist him. It
might well be that they contributed to some delay in the
referral of
this matter.
[36]
The explanation for the delay, according to him is therefore
ascribable to the activities of the union, but certainly to the
non-availability of counsel in time to assist him. He had
consulted counsel earlier on.
[37]
It remains clear to me that the calculation for the delay does not
depend on the date that the jurisdictional ruling was issued.
But it depends on two considerations. First would be the
date on the Certificate of Outcome, [Cell phone/internet
interference] 30 [?] days after the referral of the dispute.
Whichever comes first. And Mr van Zyl has highlighted this
issue in the submissions that were made.
[38]
It is clear, therefore, that the delay is much longer than 30 days if
one considers the fact that the referral was made in
July and
calculates 30 days from July up to August, the delay began to run.
[39]
The fact that the dispute was initially referred to the Bargaining
Council is an explanation which somehow in my finding has
an effect
that the applicant was actively involved in this matter. It is
true that he went into a wrong forum. Whether
it was him doing
it himself or whether it was the union doing it, it is part of the
facts that are before me.
[40]
But even if I were to hold, as the respondent wants me to hold that
it was him who was opined to taking it to the Bargaining
Council, the
fact of the matter is that he was trying to exercise what he believed
was his right.
[41]
It would not be a case of a person referring a dispute stupidly and
carelessly to the Bargaining Council. It could be that
he believed
that the Bargaining Council might have had jurisdiction. It also was
at a time when there was a new amendment in the
Act where possibly
the Bargaining Council could have had jurisdiction. One might
have to give room for that consideration.
[42]
As to the delay, it is incumbent on the person seeking condonation to
explain in detail why there was a delay. Particularly
if the delay is
excessive.
[43]
In the consideration of the
condonation application, I have to refer to a few cases that provide
a guideline. The very known one
is the
Melane
v Santam Insurance Company Ltd
[5]
where the Appellate Division heard the following. This is an
often cited paragraph:
“
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 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, for that would be a piecemeal
approach, incompatible with a true discretion.
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 of success may tend to compensate for a
long delay. And the respondent's interests
in finality must not be
overlooked. I would add that discursiveness should be
discouraged in canvassing the prospects of
success in the
affidavits.”
[44]
Also of importance, is what was
said in the case of
Motloi v
SA Local Government Association
[6]
where the following was said:
“
In
my judgment the discretion conferred on the court of first instance
in deciding whether or not to grant condonation for the late
referral
of a dispute is a wide discretion or a discretion “loosely so
called”. The court of first instance is required
to arrive at a
decision “in the light of all relevant considerations”
such as the length of the delay, the prospects
of success in the main
application, the possible prejudice to the parties and the blame
attaching to the parties.”
[7]
[45]
Of importance is also what was
said in the often cited decision in
Saloojee
and another v Minister of Community Development
[8]
, where the following appears:
“
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 the 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 increase
in the number
of applications for condonation in which the failure to comply with
the rules of the court was due to neglect on
the part of attorneys.
The attorney, after all, is the representative whom the litigant has
chosen for himself and there
is little reason why in regard to
condonation of the failure to comply with a rule of the court, the
litigant should be absolved
from the normal consequences of such a
relationship, no matter what is the circumstances of the failure
are.”
[46]
These are important considerations when one looks at the condonation
application as they are often used in this court.
[47]
I have at this stage referred to them because I am about to look at
the prospects of success of this application.
[48]
The applicant was dismissed due to the operational requirements of
the respondent. What would be essential at the trial,
if the
trial proceeds is that the court will then have to consider whether
the dismissal was procedurally and substantively fair.
[49]
In this particular case, procedural fairness, as a standalone ground
will not be applicable, because this was a facilitated
retrenchment,
in terms of section 189 (A). The remedies available to the
applicant were those as are outlined in section
189 (A)(13), and the
applicant did not utilise them in this case.
[50]
In terms of subsection (13) the trial court will be debarred
from considering procedure or unfairness of the procedure
as a
standalone ground.
[51]
It is so that some of the procedural considerations do impact on
substantive fairness. So to the extent that the condonation
application relates to the showing of good cause, and to the extent
that this refers to unfair procedure, the applicant has no
case in
that respect. Good cause can only be shown by the applicant
evincing or demonstrating to this court that he has good
prospects of
success when it comes to substantive fairness.
[52]
There is a large dispute between the parties on whether or not there
was a rationale underlying the retrenchment of the applicant.
[53]
The respondent stated in his affidavit why there was a good reason to
retrench. The applicant insisted in his founding papers,
but somewhat
in his replying affidavit he tended to take a position that says that
there could have been bumping or there could
have been someone else
retrenched instead of him. There could have been an avoidance
of him being dismissed by the respondent.
[54]
I am not of the mind, on considering this application, that it would
be fair to be harsh on the applicant and find that his
case is
necessarily weak when it comes to this question whether he was
supposed to be retrenched or not. In fairness to him,
this is
an issue that should be trial based through evidence and through
cross-examination. It would be improper of me to
find that in
this case I should sustain the version of the respondent.
[55]
I am saying, clearly there is a very live dispute between the parties
about that issue. And for condonation purposes
therefore, I am
not satisfied that the defence raised by the respondent should hold
the day. There is still room that the
applicant might be able
to succeed on substantive fairness.
[56]
There is no prejudice to be suffered by this party when it comes to
whether or not condonation is granted, save to say that
if I do not
grant it the applicant’s door to access to justice in this case
will be shut. In relation to the respondent,
all there is would
be a delay, and perhaps financial expenses when it defend itself, but
beyond that, I would find that it is appropriate
not to shut the door
when it comes to the consideration of prejudice.
[57]
I now have to weigh the prospects of success, which appear to be
there, against the explanation that has been tendered by the
applicant.
[58]
I must express my displeasure at an applicant who comes to court and
lies and lying under oath. The applicant lies and
says that he
communicated with the union and asked that time be not wasted, which
is true, he did communicate, but the union did
send a letter to him.
It explained why it was slow in its activity because it did not
believe in the merits of his case.
It comes about and says he
did not want to hang his dirty linen in public. He did not want
this Court to know that the union
was not sharing the same view as
himself.
[59]
There was nothing wrong in disclosing that. He was entitled to
take a different stance from that of the union.
He could not be
bound by the union was saying. As he actually did, and
proceeded to have a second opinion through his counsel.
But
that notwithstanding, I cannot discredit him for the lie that he
told. He still believed that he had the merits.
He has
been very active in this matter. He wanted justice to be done
in this case.
[60]
In my view, his explanation for the delay is not the best of them.
It is worthy of criticisms as has been done by the
respondent.
But when I weigh that against the prospects of success, I find that
condonation ought to be granted.
Order
[61]
In the result, the following order is made:
1.
Condonation for the late filing of the applicant’s statement of
claim is granted;
2.
There is no order as to costs.
____________________
H
Cele
Judge
of the Labour Court of South Africa.
APPEARANCES:
For
the Applicant:
Advocate
P.M. Pillay
Instructed
by:
Bagraim Sachs
per Steven Sac
For
the Respondent :
Advocate B Van Zyl
Instructed
by:
Van Zyl- Rudd Inc
[1]
Section 191:
Disputes about
unfair dismissals and unfair labour practices
(1)
(a) If there is a dispute about the fairness of a dismissal, or a
dispute about an unfair labour practice, the dismissed employee
or
the employee alleging the unfair labour practice may refer
the
dispute in writing to -
(i) a council, if the parties to the
dispute fall within the registered scope of that council; or
(ii) The Commission, if no council
has jurisdiction.
…
(5)
If a council or a commissioner has certified that the dispute
remains unresolved, or if 30 days or any further period as agreed
between the parties have expired since the council or the Commission
received the referral and the dispute remains unresolved-
(a)
the council or the Commission must arbitrate the dispute at the
request of the employee if -
(i) the employee has alleged that the
reason for dismissal is related to the employee’s conduct or
capacity, unless paragraph
(b)(iii) applies;
(ii) the employee has alleged that
the reason for dismissal is that the employer made continued
employment intolerable or the
employer provided the employee with
substantially less favourable conditions or circumstances at work
after a transfer in terms
of section 197 or 197A, unless the
employee alleges that the contract of employment was terminated for
a reason contemplated
in section 187;
(b)
the employee may refer the dispute to the Labour Court for
adjudication if the employee has alleged that the reason for
dismissal is -
(i)
automatically unfair;
(ii)
based on the employer‘s operational requirements;
(iii)
the employee’s participation in a strike that does not comply
with the provisions
of Chapter IV; or
(iv)
Because the employee refused to join, was refused membership of or
was expelled from
a trade union party to a closed shop agreement.
…
(11)
(a) The referral, in terms of subsection (5)(b), of a dispute to the
Labour Court for adjudication, must be made within 90
days after the
council or (as the case may be) the commissioner has certified that
the dispute remains unresolved.
(b)
However, the Labour Court may condone non-observance of that
timeframe on good cause shown.
[2]
Act 66 of 1995, as amended
[3]
Section 189A:
Dismissals
based on operational requirements by employers with more than 50
employees
(1)
This section applies to employers employing more than 50 employees
if-
(a)
the employer contemplates dismissing by reason of the employer's
operational requirements, at least-
(i) 10 employees, if the employer
employs up to 200 employees;
(ii) 20 employees, if the employer
employs more than 200, but not more than 300, employees;
(iii) 30 employees, if the employer
employs more than 300, but not more than 400, employees;
(iv) 40 employees, if the employer
employs more than 400, but not more than 500, employees; or
(v) 50 employees, if the employer
employs more than 500 employees; or
…
[4]
Section 189:
Dismissals
based on operational requirements
(1)
When an employer contemplates dismissing one or more employees for
reasons based on the employer‘s operational requirements,
the
employer must consult -
(a)
any person whom the employer is required to consult in terms of a
collective agreement;
(b)
if there is not collective agreement that requires consultation –
(i) a workplace forum, if the
employees likely to be affected by the proposed dismissals are
employed in a workplace in respect
of which there is a workplace
forum; and
(ii) any registered trade union whose
members are likely to be affected by the proposed dismissals;
(c)
if there is no workplace forum in the workplace in which the
employees likely to be affected by the proposed dismissals are
employed, any registered trade union whose members are likely to be
affected by the proposed dismissals; or
(d)
if there is no such trade union, the employees likely to be affected
by the proposed dismissals or their representatives nominated
for
that purpose.
…
(3)
The employer must issue a written notice inviting the other
consulting party to consult with it and disclose in writing all
relevant information, including, but not limited to –
(a)
the reasons for the proposed dismissals;
(b)
the alternatives that the employer considered before proposing the
dismissals, and the reasons for rejecting each of those
alternatives;
(c)
the number of employees likely to be affected and the job categories
in which they are employed;
(d)
the proposed method for selecting which employees to dismiss;
(e)
the time when, or the period during which, the dismissals are likely
to take effect;
(f)
the severance pay proposed;
(g)
any assistance that the employer proposes to offer to the employees
likely to be dismissed;
(h)
the possibility of the future re-employment of the employees who are
dismissed;
(i)
the number of employees employed by the employer; and
(j)
the number of employees that the employer has dismissed for reasons
based on its operational requirements in the preceding
12 months.
[5]
1962 (4) SA 531 (A),
[6]
[2006] 27 ILJ 298 (LAC),
[7]
At para 16.
[8]
1965 (2) SA 135
(A)