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[2017] ZALCJHB 459
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National Union of Metalworkers of South African and Another v Powertech Transformers (JS794/14) [2017] ZALCJHB 459 (5 December 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS 794/14
In
the matter between:
NATIONAL
UNION OF METALWORKERS OF
SOUTH
AFRICA
First Applicant
JOROSIAH
MOTUBATSE
Second Applicant
and
POWERTECH
TRANSFORMERS
Respondent
Heard:
10 February 2017
Delivered:
5 December 2017
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction
and background:
[1]
The applicants seek condonation for the late filing of a statement of
claim. The application is opposed by the respondent. The
application
is brought before the Court by National Union of Metalworkers of
South Africa (NUMSA), on behalf of its member, Mr
Jorosiah Motubatse
(Motubatse), who was allegedly unfairly dismissed by the respondent,
Powertech Transformers (Pty) Ltd (Powertech).
The dispute has a
protracted history dating back to March 2008.
[2]
The background facts are to a large extent common cause. In 1999,
Powertech had contracted one Johan Marx, an accredited training
assessor from Wings Training Centre, to provide training to its
employees. For the purposes of this dispute, the training in question
related to overhead crane and forklifting equipment. The training was
arranged by Powertech’s Training Manager, Ronald Graham,
who
had drawn a schedule of which employees were to be trained on a
particular day in respect of a particular training.
[3]
The incident that led to the dispute took place on 6 August 2007
when forklift recertification training was to take
place and to be
attended by six employees nominated for the course. The
trainees/employees had to be in possession of a medical
certificate.
Some of the employees did not possess the necessary medical
certificates and were excluded from the training. It is
alleged that
Motubatse confronted Marx during the training of about three (3)
employees on various occasions in an aggressive and
threatening
manner, demanding to know the reason other employees were excluded
from the training. Marx then reported Motubatse’s
conduct to
Graham, and thereafter, the incident was investigated including
taking statements from witnesses.
[4]
Motubatse’s training on overhead cranes was scheduled to take
place on 15 August 2007. At that training, Motubatse
is
alleged to have been uncooperative and disruptive. It is further
alleged that he had raised his voice towards Marx, and humiliated
him
in front of the other employees. Marx had to stop the training and
had laid a further complaint against Motubatse. Marx came
back to the
training with Graham, who had asked to speak to Motubatse privately.
Marx and the other trainees were also called upon
to explain what had
happened.
[5]
Motubatse then laid a grievance on 16 August 2007 against
Marx, alleging that he was harassed, victimised and intimidated
by
him, and that he had also used offensive language towards him. He had
accused Marx of being unprofessional and undermining towards
the
trainees. Marx had also responded in writing to the grievance and
denied the allegations against him.
[6]
An independent person was
appointed to investigate the allegations and counter allegations
between Marx and Motubatse and to recommend
any steps in that regard.
The investigator, Pieterse after completion of his investigations,
recommended that disciplinary processes
be followed rather than a
grievance procedure. A disciplinary process followed on
29 November 2007 at which Motubatse
was found guilty of
intimidation, making threats, false and malicious allegations against
Marx, and falsely accusing Pieterse of
racism
[1]
.
He was subsequently dismissed on 12 March 2008.
[7]
The applicants then referred an unfair dismissal dispute to the Metal
and Engineering Industry Bargaining Council (MEIBC) in
April 2008.
Conciliation having failed, the matter was referred to arbitration.
The arbitration was held over a number of
days and had culminated in
an award being issued by the late Commissioner Zodwa Mdladla on
25 January 2012. The Commissioner
held that the dismissal
of Motubatse was procedurally and substantively unfair, and he was
reinstated back into Powertech’s
employ with backpay.
[8]
Powertech in September 2009
brought an application to this Court in terms of section 145 of the
Labour Relations Act (LRA)
[2]
under case number JR 1250/09 to review and set aside the award
issued on 25 January 2012. It appears that Powertech
did
not prosecute the review timeously, resulting in a Rule 11
application being launched by the applicants.
[9]
The Rule 11 application came before La Grange J on 25 January 2012,
who had issued an order in terms of which Powertech’s
review
application was dismissed, and the award was made an order of court
in terms of the provisions of section 158(1)(c) of the
LRA.
[10]
An application for rescission of La Grange J’s order was then
filed by the respondent on 26 March 2012. The
rescission
application came before Seedat AJ on 09 January 2013. In a
written judgment delivered on 12 February 2013,
Seedat AJ
granted the application for rescission, and directed the parties to
file the outstanding papers in the review application.
[11]
On 24 August 2014, the parties then approached Molahlehi J in
chambers. By agreement, the Commissioner’s award of
25 January 2012
was reviewed and set aside. The matter was
then remitted back to the MEIBC for a hearing
de novo
before
another Commissioner. The agreement was made an order of court.
[12]
Following a request by the applicants on 03 June 2014, the
MEIBC then set the matter down for arbitration on 19 August 2014.
At those proceedings, Mr. Cartwright, the applicants’ attorney
of record, advised Commissioner Frans Stassen that based on
a certain
judgment of this Court, he was of the view that the applicants’
case pertained to an automatically unfair dismissal,
and he therefore
wished to withdraw the dispute before the MEIBC and to refer it to
this Court. Commissioner Stassen accordingly
issued a ruling on
19 August 2014 in that regard, indicating that the dispute
was withdrawn, and directing the MEIBC
to close the file.
[13]
The applicants filed their statement of claim on 29 August 2014.
In their statement of claim, the applicants contend
that the
dismissal of the second applicant was automatically unfair in terms
of the provisions of section 187(d) of the Labour
Relations Act. In
the alternative, the applicants contend that the dismissal was
unfair. Powertech filed its statement of response
on
11 September 2014. The parties concluded pre-trial minutes
on 11 June 2015. Powertech did not indicate any
intention
to raise any preliminary points, and the matter was enrolled for
trial for 13 June 2016.
[14]
Prior to the trial date, the parties held a meeting on 25 May 2016,
and an agreement was reached that the matter
would be removed from
the roll and that the applicants would file an application for
condonation for the late filing of the statement
of claim. The
application for condonation was thereafter filed on 15 July 2016.
The
application for condonation and evaluation:
[15]
In the statement of claim, it is alleged that the dismissal of
Motubatse was automatically unfair within the meaning of section
187
(d) of the LRA, since it related to the reason that he had exercised
his right to institute a grievance. In the alternative,
it was
alleged that the dismissal was unfair.
[16]
The provisions of section 191 (11) (a) of the LRA require the dispute
such as lodged by the applicants to be referred to this
Court within
90 days from the date that the matter is certified as unresolved.
Under section 191 (11) (b), the Court may condone
the non-observance
of the time frames on good cause shown.
[17]
The factors to be considered in
such applications are trite.
In
considering the application, the court will take into account the
extent of the delay, the explanation therefor, the prejudice
to the
parties, and where necessary, whether the applicant has good
prospects of success on the merits of the claim. Ultimately,
upon a
consideration of all these factors, the question the Court will have
to answer is whether it is in the interest of justice
to grant the
condonation sought
[3]
. In
Grootboom
,
Bosielo AJ (As he then was) further held that;
‘
It
is now trite that condonation cannot be had for the mere asking. A
party seeking condonation must make out a case entitling it
to the
court’s indulgence. It must show sufficient cause. This
requires a party to give a full explanation for the non-compliance
with the rules or the court’s directions. Of great
significance, the explanation must be reasonable enough to excuse the
default.’
[4]
[18]
As already indicated, the certificate of outcome in this case was
issued on 7 May 2008, whilst the statement of claim
was
filed on 29 August 2014, almost six years later after the
initial dispute was referred to the MEIBC. Moreover, the
application
for condonation was only filed on 15 July 2016, almost 23 months
after the statement of claim was filed. The sum degree
of lateness
may be said to be almost eight years. This does not even include the
applicant’s delay in filing a replying affidavit
in respect of
the condonation application.
[19]
There can be no doubt that the delay in this case is excessive in the
extreme, and the applicants are therefore required to
present a truly
reasonable explanation. In his founding affidavit in support of the
application for condonation, the applicants’
attorney of
record, Cartwright conceded that the dispute having been conciliated
on 7 May 2008, it was 8 years old since
conciliation. He
nonetheless contended that there was a reasonable explanation for the
delay within the context of the matter having
gone through various
stages including the conciliation, the arbitration, the review, the
Rule 11 application, the rescission application,
the in-chambers
proceedings before Molahlehi J, and back to the MEIBC.
[20]
According to Cartwright, flowing from the parties’ meeting of
25 May 2016, he was of the mistaken impression
that because
the matter had been referred back to the MEIBC; and because the cause
of action that had underpinned the decision
of the Court to set the
matter aside and refer it back to the MEIBC was the same cause of
action that led him to refer the matter
to the Court, it was
therefore not necessary to apply for condonation, as his authority
for referring the matter without applying
for condonation derived
from the Court’s decision to review the matter on
24 February 2014. Cartwright further
averred that it was
his mistaken misunderstanding that if the cause of action was the
same, whether the Court referred it back
to the MEIBC or whether as a
result of his agency, the authority to refer for adjudication, would
derive from the Court’s
order itself, which order would remain
valid, and would not prescribe for a period of 30 years. He averred
that he now realized
his mistake and apologised.
[21]
There are inherent difficulties with the explanation proffered by
Cartwright for the extreme delay. The explanation, when properly
understood merely boils down to a mistake on his part and an apology.
It was pointed out on behalf of Powertech that Cartwright
was already
on board when the matter was dealt with in chambers before Molahlehi
J on 24 February 2014. Until Cartwright
sought to have the
matter referred for adjudication on 18 August 2014, the
applicants’ case from inception had
always been that
Motubatse’s dismissal on the basis of alleged misconduct was
procedurally and substantively unfair. The
applicants were prepared
to live with Commissioner Mdladla’s award in terms of which it
was found that Motubatse’s
dismissal was unfair. At no stage
before 18 August 2014 was it the applicants’ case
that the dismissal of Motubatse
was automatically unfair.
[22]
Significantly, after the matter was referred back to the MEIBC on
24 February 2014, only on 3 June 2014
was a
request made to have it arbitrated, and there is no explanation in
regard to that delay. It further took the applicants another
23
months after the statement of claim was filed before this application
could be launched. As to how there could have been a mistake
in view
of the subject matter that had led to the arbitration award being set
aside and remitted back to the MEIBC without the
applicants realising
that they should have referred the matter for adjudication is not
clear. Whilst still at this point, it is
trite that an application
for condonation ought to be filed as soon as a party realises the
need to do so. Cartwright does not
explain this 23 months’
delay in filing the application for condonation, and this is despite
the fact that the respondent
had brought it to his attention on 9 and
25 May 2016 of the need to do so.
[23]
Cartwright’s assertions that he had belaboured under a mistaken
belief that an application for condonation was not necessary
on the
strength of the Court’s decision to review the arbitration
award on 24 February 2014 cannot be plausible.
It is
correct that to the extent that the matter was remitted back to the
MEIBC, there would have been no need to apply for condonation
for the
matter to be arbitrated
de novo
. The matter before Molahlehi J
as discussed with the parties and disposed of in chambers pertained
to a review application. As
to how such a matter could have morphed
into anything akin to action proceedings is not clear, and any
contention that the decision
to refer the matter back to this court
was as a result of a
bona fide
mistaken belief is rejected.
[24]
The further submission made on behalf of the applicants that the
cause of action remained the same and that there was therefore
no
need to apply for condonation is equally misplaced. The fact that a
certificate of outcome was issued does not on its own clothe
the
court with the necessary jurisdiction unless the provisions of
section 191 (11) (a) and (b) of the LRA have been complied with.
To
hold otherwise would be to countenance the circumvention of those
provisions.
[25]
Even if there was any
merit to the contention that it was only as at 18 August 2014
that it had come to Cartwright’s
attention that Motubatse’s
claim could be characterised as an automatically unfair dismissal, in
view of the allegation that
he was dismissed for laying a grievance,
the earliest Labour Court decisions to be relied upon in that regard
to sustain such a
claim could only been
Jabari
v Telkom SA (Pty) Ltd
[5]
,
delivered on 6 May 2006;
Mackay v
ABSA Group & another
[6]
,
delivered
on 28 July 1999. The respondent had also pointed out that
the judgment of Steenkamp J in
De
Klerk v Cape Union Mart International (Pty) Ltd
[7]
and delivered on 12 June 2012 was equally available. Thus,
as at the time between the initial referral of the dispute,
and when
Molahlehi J referred the matter back to the MEIBC, any such authority
was readily available to Cartwright and Motubatse
if they had any
inclination to pursue an alleged automatically unfair dismissal.
Thus, any arguments or excuses surrounding any
mistake in this
regard, or the contention that such case law only came to the
attention of Cartwright after the matter was remitted
back to the
MEIBC in August 2014 can hardly be sustainable nor serve as a
reasonable excuse.
[26]
It is
further trite that following from the Labour Appeal Court decisions
in
NUMSA
v Council for Mineral Technology
[8]
and
Moila
v Shai
[9]
,
where
in an application for condonation, the delay is excessive, and no
explanation is given, or an explanation that has been given
amounts
to no explanation at all, it would not be necessary to consider the
prospects of success.
Equally so,
an
unacceptable delay and unsatisfactory explanation will preclude the
granting of condonation irrespective of the prospects of
success. In
this case, Cartwright’s explanation for the extreme delay in
approaching the court with a statement of claim
amount to no
explanation at all, and that should be the end of the matter.
[27]
Even if the court was inclined to consider the
merits of Motubatse’s alleged automatically unfair dismissal
claim, a further
difficulty faced by the applicants is that the
founding affidavit is deposed to by Cartwright. The statement of
claim is not made
under oath, and Motubatse had not filed any
confirmatory affidavit regarding the merits of his claim. Thus, a
case has not been
made out in regard to any prospects of success
Motubatse may have.
[28]
It cannot be doubted that to grant condonation in
circumstances where the delay is so extreme and where this matter had
gone full
circle between the MEIBC and the Court would be extremely
prejudicial to Powertech, and a lame apology from Cartwright cannot
compensate
for that prejudice. To compel Powertech to defend a matter
which is more than ten years old, and which was properly before the
MEIBC and then withdrawn from that forum for spurious reasons cannot
be fair. In these circumstances, the interests of justice dictate
that the application for condonation together with the main claim
ought to be dismissed. I have further had regard to the requirements
of law and fairness in regard to the issue of costs, and hold the
view that such an order is not warranted in this case.
Order:
[29]
In the premises, the following order is made:
1.
The application for condonation for the late filing of the
applicants’
statement of claim is dismissed.
2.
The applicants’ main claim is dismissed.
3.
There is no order as to costs
____________________
E
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicants: Mr Louis Poriazis, of David
Cartwright Attorneys
For
the Respondent: Mr Jean du Randt, of Du Randt du Toit
Pelser Attorneys
[1]
In terms of Annexure A, the charges were:
1.1. Intimidation and/ or
threats;
1.2. Initiating reports
calculated to cause unrest, alarm, despondency and/ or leading to
poor labour relations;
1.3. Unauthorised
interference and disruption of a formal training process;
1.4. Removing employees
from a formal training session without authority and thereby
jeopardising their safety.
Details appear from the statement by
Johan Marx dated 20 August 2007 a copy of which is attached hereto
“A1”
2.
2.1. Making false and
malicious allegation against Mr Johan Marx of Wings Training Centre,
when you knew these allegations
were false with regard to:
(a) harassment;
(b) victimisation;
(c) undermining the trainees;
(d) unprofessional and unbecoming
attitude and behaviour; and
(e) not caring for the feelings of
the workers.
Details appears from the grievance
form dated 15 August 2007, a copy of which is attached hereto marked
“A2”
3. Making
false allegations of racism against Johan Pieterse, chairperson of
the enquiry on 8 November
2007.
4. In acting
as aforesaid you have destroyed the trust relationship and/ or the
employment relationship
between yourself and the company.
[2]
Act 66 of 1995
[3]
See
Melane v Santam
Insurance Company Ltd
1962 (4) SA 531
(A) at 532C-D; Grootboom v
National Prosecuting Authority and Another
[2014]
1 BLLR 1
(CC)
at
paras 50-51, where it was held that;
‘
50. In this
Court, the test for determining whether condonation should be
granted or refused is the interests of justice. If it
is in the
interests of justice that condonation be granted, it will be
granted. If it is not in the interests of justice to do
so, it will
not be granted....
51. The interests of justice
must be determined with reference to all relevant factors. However,
some of the factors may
justifiably be left out of consideration in
certain circumstances. For example, where the delay is unacceptably
excessive and
there is no explanation for the delay, there may be no
need to consider the prospects of success. If the period of delay is
short
and there is an unsatisfactory explanation but there are
reasonable prospects of success, condonation should be granted.
However,
despite the presence of reasonable prospects of success,
condonation may be refused where the delay is excessive, the
explanation
is non-existent and granting condonation would prejudice
the other party. As a general proposition the various factors are
not
individually decisive but should all be taken into account to
arrive at a conclusion as to what is in the interests of justice.’
[4]
Ibid
at para 23.
[5]
(2006)
27 ILJ 1854 (LC)
[6]
[1999]
12 BLLR 1317 (LC)
[7]
(
2012)
33 ILJ 2887 (LC)
[8]
[
1993]
3 BLLR (LAC) at 211G-H
[9]
(2007) 5
BLLR 432
(LAC)