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[2017] ZALCJHB 494
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DHL Supply Chain (South Africa) (Pty) Ltd v Association of Mineworkers and Construction Union (AMCU) (JS19/17) [2017] ZALCJHB 494 (5 December 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Not
of interest to other judges
Case
no: JS19/17
DHL
SUPPLY CHAIN (SOUTH AFRICA) (PTY) LTD
Applicant
And
ASSOCIATION
OF MINEWORKERS & CONSTRUCTION UNION (AMCU)
Respondent
In
the matter between:
Heard:
24 November 2017
Delivered:
5 December 2017
Summary:
Condonation – degree of lateness – delay of 100 Court
days excessive - absence of an explanation
Condonation
– failure to read statement of case – flagrant and gross
failure to comply with the rules of Court –
whether necessary
to consider prospects of success
JUDGMENT
COETZEE
AJ
Introduction
[1]
The applicant is DHL Supply Chain (South Africa) (Pty) Ltd.
[2]
The first respondent is Association of Mineworkers and Construction
Union (AMCU), a duly registered trade union.
[3]
The second respondent is National Union of Metalworkers of South
Africa (NUMSA), also a duly registered trade union.
[4]
The first respondent, AMCU, applied for condonation for the late
filing of its response to the applicant's statement of claim.
AMCU
also applied for leave to amend its statement of defence to include a
further number of its members as part of the proceedings.
[5]
The applicant dismissed several of its employees for alleged
misconduct. Some of the employees are members of AMCU and some
are
members of NUMSA.
[6]
A dispute arose between the applicant and the two unions as to the
fairness of the dismissals.
[7]
NUMSA referred two alleged unfair dismissal disputes to the National
Bargaining Council for the Road Freight and Logistics Industry
(the
bargaining council). AMCU referred a similar dispute to the same
bargaining council.
[8]
The three disputes remained unresolved following upon conciliation
and became the subject matter of referrals by the first and
second
respondents to the bargaining council for arbitration.
[9]
The applicant took the
initiative and applied to the Director of the Commission for
Conciliation, Mediation and Arbitration (CCMA)
for a ruling,
inter
alia
, directing that the
disputes between the parties be referred to the Labour Court for
adjudication in accordance with the provisions
of section 196 (6) of
the Labour Relations Act (the LRA)
[1]
.
[10]
The director issued a Ruling (the ruling) on 13 January 2017 as
follows:
"In the MATTER between
DHL SUPPLY CHAIN (SOUTH AFRICA) (PTY)
LTD (Applicant)
And
ASSOCIATION OF MINEWORKERS AND
CONSTRUCTION UNION (AMCU) obo SHABALALA & 129 OTHERS
NATIONAL UNION OF METALWORKERS OF
SOUTH AFRICA (NUMSA) obo TSEBO NTSELANE MALATJI & 16 OTHERS
NATIONAL BARGAINING COUNCIL FOR THE
ROAD FREIGHT AND LOGISTICS INDUSTRY (NBCRFLI)
(First, Second and Third Respondents
respectively)
…………
…………
5. RULING
5.1 I grant the application to refer
the dispute to the Labour Court for adjudication."
[11]
All the parties received the ruling. The ruling clearly referred to
the three parties including AMCU.
[12]
The applicant, as the employer, took the initiative to serve and file
a statement of claim on 25 January 2017 upon the first
and second
respondents. The applicant in the heading of the statement of claim
refers to AMCU as the first respondent.
[13]
Paragraph 2 of the statement of claim reads as follows:
"2. If a party intends opposing
the matter, its response must be delivered within 10 days of service
of this Statement in terms
of sub rule 6 (3) of the Rules of the
Labour Court and in the absence of which the matter may be heard in
that party's absence
and an order for costs may be made against that
party."
[14]
In paragraph 4 of the statement of claim the applicant cites the
first respondent as follows:
"4. The First Respondent is the
Association of Mineworkers and Construction Union, a trade union duly
registered in accordance
with the relevant provisions of the
Labour
Relations Act of 1995
and having its principal place of business
within the restriction of the above Honourable Court at 04 Palladium
Street, Mantalto
Building, Carletonville”.
[15]
In paragraph 19 the applicant states the following:
"To the extent that any issues
arise by way of any response which may be delivered on behalf of
First and/or Second Respondents,
and which have not been addressed in
the appropriate manner in the Statement of Claim, Applicant reserves
its right to plead over
to such issues."
[16]
It is not in dispute that the applicant throughout the statement of
claim refers to the employees dismissed by the applicant.
It is also
not in dispute that those employees are members of either AMCU or
NUMSA.
[17]
The applicant seeks the following relief:
"20. Applicant seeks an Order
declaring that the dismissal of the individual Respondents
was both procedurally
and substantively fair and denies that the
Individual Respondents are entitled to any relief as against the
Applicant and as may
be claimed by way of any responses filed on
their behalf."
[18]
The applicant served a copy of the statement of claim upon NUMSA and
AMCU.
[19]
The second respondent served and filed its statement of response
within the prescribed period.
[20]
The first respondent served and filed its statement of response on 7
July 2017. The first part of the statement of response
contains an
application for condonation of the late filing thereof. The
application for condonation was not an oath and formed
part of the
statement of response.
The
degree of delay:
[21]
The first respondent stated that the response was approximately 150
days late.
[22]
The applicant calculated the delay to be 100 Court days. The
applicant submitted that having regard to the 10 days within which
the statement of response had to be filed, a delay equal to 10 times
the period, is grossly excessive.
The
reason for the delay
[23]
The first respondent explained the reason for the delay in a somewhat
garbled fashion as follows:
"2.7 The third (sic) Respondent
understood the ruling to mean that the dispute between Applicant and
3
rd
(sic) Respondent must be referred to the Labour Court
for adjudication. This was after the First respondent consented to
the
Section 191
(6) application, meanwhile the third respondent (sic)
opposed such application, therefore, was under impression that the
dispute
between Applicant and third Respondent in relation to the
Section 191
(6) did not involve the first Respondent.
2.8 On the third July 2017, the first
Respondent's representative made a call to Mr Hlela of the Applicant,
and learned that actually
the ruling of 12 January was in respect of
the third (sic) Respondent's opposing of the applicant's 191 (6)
application."
[24]
What the first respondent tried to say is clarified in the replying
affidavit. The first respondent's understanding was that:
"… the ruling involved The
Applicant and the Second Respondent since the second Respondent
opposed the
section 191
(6) Application by the Applicant, and that
the dispute between the former and the latter must be adjudicated by
the court."
[25]
The applicant takes issue with the reason for delay. The applicant
submits that there is no credible explanation for the delay
and the
absence of a credible reason for the delay means that there is no
necessity to consider the prospects of success.
[26]
The applicant is of the view that the delay is excessive and
constitutes a gross and flagrant disregard for the rules of the
Labour Court.
The
prospects of success
[27]
I deal with the prospects of success in short.
[28]
The first respondent alleges that the dismissal of the members of the
first respondent was both procedurally and substantively
unfair. The
first respondent would also prove through evidence that there was no
strike and that its members were dismissed after
they demanded an
explanation as to why the Provident Fund "funder" was
substituted without any consultation resulting
in irregular
contribution statements and that the applicant unlawfully locked out
its members who were reporting for a shift in
full uniform while they
had no idea of what was happening at the workplace.
[29]
The applicant in its answering affidavit to the application for
condonation denied that the dismissal of the first respondent's
members was procedurally or substantively unfair. It refers to
extracts from its statement of case to show that they committed
various acts of misconduct. The applicant further alleged that the
misconduct was serious and endangered the safety of the people,
caused damage to property and had the effect that the applicant's
main customer could not receive suppliers and customers into
its
premises. Alleged that a fair procedure was followed prior to the
termination of the services of the employees.
Prejudice
to the parties
[30]
The first respondent alleges that its members would be prejudiced in
the absence of condonation because they would not be able
to present
their case and obtain relief from the Court.
[31]
The applicant, amongst others, alluded to its interest in finality.
The applicant has replaced all the dismissed employees
with new
employees and an outcome favourable to the first respondent at trial
would have serious adverse consequences at both a
financial and
practical level for the applicant if the dismissed employees were to
be reinstated or compensated.
The
legal position and an analysis of the submissions
[32]
The delay is excessive.
[33]
The first respondent referred
the Court to the judgment in
Theledi
v Saficon Industrial Equipment (Pty) Ltd
[2]
for the proposition that the Labour Court may condone an excessive
delay of five months having regard to the prospects of success.:
"With regard to the degree of
lateness, as already stated, the applicant was five months and three
weeks late in referring
this dispute to this court. However,
although, the explanation given by the applicant for this delay is
not satisfactory, in my
view, the five months and three weeks delay
is not so long that the matter cannot be entertained by this court.
Also given the
circumstances under which the applicant was dismissed,
it is in the interests of justice at this late referral be condoned.
I am
aware of a plethora of cases decided by this Court that seek to
suggest that a failure to give a satisfactory explanation should
result in the refusal of the condonation. Some cases even state that
it is the end of the enquiry. That is not my understanding
of the
Melane decision. The
Melane
decision is very clear that the
factors are interrelated. Although I am not satisfied with the
explanation for the delay, it is
however, in my view, not the end of
the enquiry. Consistent with the principle that none of the factors
are decisive the failure
to give a satisfactory explanation for the
delay must be weighed with other factors. In other words, the
explanation factor is
not a decisive factor"
[34]
The applicant submitted that
the
Theledi
judgment did not assist the first respondent. The applicant submitted
that in the absence of a satisfactory explanation it may
be the end
of the enquiry where there is a gross and flagrant failure to comply
with the rules. The Labour Appeal Court in
Colett
v Commissioner for Conciliation, Mediation and Arbitration and
Others
[3]
said the following:
"The
legal position was summarised as follows by the Constitutional Court:
'It
is trite law that a court considering whether or not to grant
condonation exercises a discretion. The discretion must, of course
be
exercised judicially on a consideration of all the facts and 'in
essence it is a matter of fairness to both sides'. It is clear
that
the SCA may decide an application for condonation without considering
the merits of the case, though it does so only where
there is a gross
and flagrant failure to comply with the rules
[4]
."
[35]
The court in
Colett
went further to say:
[5]
"There
are overwhelming precedents in this Court, the Supreme Court of
Appeal and the Constitutional Court for the proposition
that where
there is a flagrant or gross failure to comply with the rules of
court condonation may be refused without considering
the prospects of
success
[6]
."
[36]
It is the applicant's submission that the first respondent's
explanation falls within the category of a gross and flagrant
failure
to comply with the rules of the Labour Court.
[37]
The applicant submitted that the explanation for the delay boils down
to the first respondent saying that it has never read
the statement
of claim served upon it. There are several indications in the
statement of case alerting the first respondent to
the fact that it
was a party to the case and that it had to comply with the rule that
demands the service and filing of a response
within 10 days from
receipt of the statement of case. Had it read the statement of claim
it could never have formed the view that
the statement of claim
referred only to a dispute between the applicant and NUMSA.
[38]
The submission that the first respondent's regional legal officer who
handled this matter from inception had no basis to allege
that he was
under the misunderstanding as to whether AMCU was a party to the
proceedings has merit. AMCU was party to the referral
of a dispute to
the bargaining council. AMCU was a party to the proceedings at the
CCMA when the applicant applied for the matter
to be transferred to
the Labour Court. AMCU received the ruling that undoubtedly and in
clear terms referred to all three the parties
to the dispute, which
dispute the CCMA had referred to the Labour Court. AMCU was cited in
no uncertain terms in the statement
of case which it received. The
statement of claim makes various references to the dismissed
employees, some of which were AMCA
members. The statement of claim
clearly required AMCU as a party thereto to respond within 10 days.
[39]
The submission that the only explanation for not filing a statement
of response thereto is that AMCU did not read the statement
of case,
therefore has merit. It is inconceivable how, after having read the
statement of case and being aware of the history of
the matter,
anyone could reasonably believe that AMCU was not a party to the
proceedings initiated by the applicant in this court.
[40]
The inevitable conclusion is that AMCU was in flagrant disregard of
the rules of the Labour Court.
[41]
There is yet another indication that AMCU was in default. AMCU's
representative in Court could not explain what AMCU intended
to do
about the dispute between AMCU and its members on the one hand and
the applicant on the other hand. If it were Amcu's understanding
that
it and its members were not part to the dispute referred to the
Labour Court for adjudication, then AMCU certainly would have
had to
initiate its own proceedings within the prescribed period which had
long lapsed by July 2017. The fact that AMCU did not
pursue the
dispute that it referred to the bargaining council is indicative of
the fact that AMCU had no intention of participating
in the Labour
Court proceedings initiated by the applicant. Otherwise it would have
opposed the statement of case from inception
or initiated its own
proceedings against the applicant for allegedly unfairly dismissing
its members.
[42]
The application for condonation is dismissed. It follows that the
statement of response is also dismissed.
[43]
In view of this finding I do not have to make a finding on the first
respondent's application to amend the statement of response
to
include a further number of dismissed employees in its statement of
response. Those employees were dismissed approximately a
year after
those referred to in the statement of claim. There were also
dismissed for alleged misconduct during the same events.
They were
dismissed pursuant to a different disciplinary enquiry. AMCU did not
refer any dispute regarding their dismissal to the
CCMA or the
appropriate bargaining council. I would have dismissed this
application.
Costs
[44]
In relation to costs, the scope is a broad discretion in terms of
s
162
of the LRA to make orders for costs according to the requirements
of the law and fairness. There is no evidence that the parties
have
an established ongoing relationship. The applicant successfully
opposed the application for condonation. In my view, it is
fair and
equitable that the first respondent pays the applicant's costs.
Order
[45]
I make the following order:
1.
The application for condonation is dismissed with costs.
2.
The first respondent's statement of response is dismissed with costs
____________________
F.
Coetzee
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant:
Advocate J Partington
Instructed
by:
Chris Baker and Associates.
For
the Respondent:
Vusi Masinga legal officer of AMCU
[1]
Act 66 of 1995 as amended.
[2]
[2012] ZALCJHB 63 (10 July 2012) at para 11.
[3]
(2014) 35 ILJ 1948 (LAC) at para 30.
[4]
Mabaso v Law Society of the Northern Provinces and Another
[2004] ZACC 8
;
2005 (2)
BCLR 129
(CC) at para 20
[5]
Supra
at para 38.
[6]
Mbutuma v Xhosa Development Corporation Ltd
1978 (1) SA 681
(A) at
687A; Darries v Sheriff, Magistrates' Court, Wynberg and another
1998 (3) SA 34
(SCA) at 41 C-D and Mabaso supra