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[2017] ZALCD 16
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Ohff v Balkaran NO and Others (464/15) [2017] ZALCD 16 (2 June 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Not
reportable
Case
no: 464/15
In
the matter between:
ANNE
MARIE
OHFF
Applicant
and
SAROJINI
BALKARAN
N.O
First Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second Respondent
DERIVCO
Third
Respondent
Heard:
30 November 2016
Delivered:
2 June 2017
JUDGMENT
GUSH
J
[1]
This is an application to review and set aside the first respondent’s
ruling issued on 9 August 2015 dismissing the applicant’s
application for condonation for the late filing of her dispute
[2]
The applicant was employed by the third respondent on 4 January 2000
as a Database Administrator and, on the 13 December 2013,
was
appointed as Software Development Manager.
[3]
On 27 February 2014, the applicant and the third respondent entered
into a “separation agreement” regarding the
applicant’s
continued employment. The settlement agreement records that the date
of termination of the applicant’s
employment is 28 February
2014.
[4]
The agreement further records that:
‘
(a) The third respondent would
pay to the applicant a “termination payment” in the
amount of R42, 630 per month until
30 November 2014 with leave pay;
(b) On termination of her employment
the applicant was to return all documents etc and remain bound by the
confidentiality agreement;
(c) the “agreement has been
reached is in full and final settlement of all claims and rights”
which the applicant may
have against the third respondent.”
(d) The “agreement constitutes
the whole agreement between the parties”’.
[1]
[4]
It would appear that the parties had agreed that in order for the
applicant to claim unemployment insurance the applicant would
be
deemed to be retrenched. The third respondent issued a letter
confirming the retrenchment. On 5 February 2015, the applicant
wrote
to the third respondent complaining that her claims for unemployment
benefits due to her as a result of her retrenchment
had been refused
as the third respondent had reflected a determination as a
resignation. This administrative error was acknowledged
by the
employer and rectified. The applicant now claims she was unfairly
dismissed for operational requirements on 30 November
2014.
[5]
The applicant signed a referral to the second respondent ostensibly
on “29 January 2015” (which referral was only
served on
the third respondent on 27 February 2015) in which referral the
applicant claimed she had been dismissed on 30 November
2014.
[6]
Based on the applicant’s averment that she was dismissed on 30
November 2014, the referral was some 59 days late. As a
result, the
applicant applied for condonation for the late filing of her referral
which she averred was 55 days late.
[7]
In her application for condonation, the applicant, in her affidavit
studiously and obviously intentionally avoids any mention
of the
agreement she entered into with the third respondent which agreement
records that her employment was terminated on 28 February
2014.
Neither did the applicant attach the agreement with the third
respondent to her application. The reason for the delay the
applicant
suggests was due “primar[il]y [to the fact that] during
December 2014 until 15
th
January 2015 being the Christmas
and New Year recess, it was virtually impossible to obtain any legal
assistance in the matter…”.
[8]
The applicant avers in her founding affidavit in the review
application that she was not advised by her attorney to attach
supporting documentation in applying for condonation. This and the
applicant’s deliberate failure to include the agreement
in her
condonation application is to be contrasted with the specific
averment the applicant makes in her founding affidavit:
‘
Unfortunately, the Director of
Labour Project, Roger Brown (“Brown”) did not agree with
me regarding the merits of my
dismissal and refused to give her
mandate an attorney to act on my behalf. His refusal was based on me
having signed the separation
agreement. Various discussions took
place between the same Labour Project attorney and me with the result
that by the middle of
December 2014 I had still not properly briefed
an attorney to larger referral with the second respondent.’
[2]
[9]
The applicant in her affidavit in support of her condonation
application fails to mention that the issue she had with her attorney
involved the separation agreement and the fact that that agreement
recorded that the date of termination of her employment was
28
February 2014.
[10]
The test to be applied when considering condonation was summarised in
NUM
v Council for Mineral Technology
[3]
‘…
the
approach in Melane v Santam Insurance Co Ltd
1962
(4) SA 531
(A)
at 532C–F should be adopted ... . The approach is that the
court has a discretion, to be exercised judicially upon a
consideration of all the 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 therefore, the prospects of
success and the importance of the case. These facts are interrelated;
they are not individually decisive. What is needed is an objective
conspectus of all the facts. A slight delay and a good explanation
may help to compensate for prospects of success which are not strong.
The importance of the issue and strong prospects of success
may tend
to compensate for a long delay. There is a further principle which is
applied and that is that without a reasonable and
acceptable
explanation for the delay, the prospects of success are immaterial,
and without prospects of success, no matter how
good the explanation
for the delay, an application for condonation should be refused (cf
Chetty v Law Society, Transvaal 1985 (2)
756 (A) at 765A–C;
National Union of Mineworkers & others v Western Holdings Gold
Mine (1994) 15 ILJ 610 (LAC) at 613E).’
[4]
[11]
In order to consider the applicant’s application for
condonation and the refusal thereof by the first respondent, it
is
necessary to consider the applicant’s explanation and in
particular the extent to which the applicant took the first
respondent into her confidence in explaining the reason for the
delay.
[12]
There can be no doubt that the applicant was well aware of the
consequences of the separation agreement and the contents thereof.
When the issue of condonation arose, the applicant attempted to
explain away the delay by suggesting that she was dismissed was
on
the 30 November 2014. This was in spite of the fact that she had
agreed in the separation agreement her employment had
terminated “by agreement and consensually on the termination
date viz. 28 February 2014. In addition, instead of disclosing
that
she had concluded a separation agreement she averred that dismissal
was unfair purely based on an averment that the third
respondent had
dismissed her without complying with
section 189
of the
Labour
Relations Act 66 of 1995
.
[13]
It is a principle in our courts that litigants should approach a
court and for that matter the Commission for Conciliation,
Mediation
and Arbitration with clean hands. The applicant in this matter agredd
to the termination of her employment and accepted
the payments made
to her in terms of that agreement. She was also was complicit in the
attempt to claim unemployment insurance.
The applicant made it clear
that she had waited until 30 November 2014 to ensure she received the
payment she was entitled to in
terms of the separation agreement. It
was only thereafter that the applicant suggested she had been
dismissed for operational reasons.
If the applicant was concerned
about the circumstances surrounding the signing of the settlement or
separation agreement the time
to raise those concerns was at the time
the agreement was signed.
[14]
The applicant’s grounds of review are that the first respondent
misdirected herself in finding:
(a) That the date of her
dismissal was 28 of February 2014;
(b) That the first time the
applicant believed she had been retrenched was when she attempted to
claim unemployment benefits;
(c) That the applicant’s
prospects of success were negligible; and
(d) The explanation for the delay was
unacceptable is unreasonable.
[15]
The facts of the matter are that the separation agreement
specifically records the date of dismissal as 28 February 2014. The
Labour Relations Act defines
the date of dismissal as “the
earlier of the date on which the contract of employment terminated or
the date on which an
employee left the service of the employer”.
[5]
[16]
The separation agreement specifically provides that the applicant’s
employment terminated “by agreement and consensually”.
[6]
This leads incontrovertibly to the conclusion that the applicant was
neither retrenched nor dismissed and her prospects of
success
are non-existent.
[17]
The applicant was at all times aware of the date of termination which
was the date on which she left the employ of the third
respondent.
She elected, in the face of an admitted discussion she had with her
legal representative regarding the separation agreement,
not to
disclose
the existence thereof on affidavit when applying for
condonation.
[18]
I am not persuaded that the award of the first respondent refusing
condonation is in any way reviewable.
[19]
As far as costs are concerned, in the interest of law and fairness, I
am satisfied that the conduct of the applicant in this
matter
warrants that she be ordered to pay the costs of this application.
[20]
In the circumstances and for the reasons set out above, I make the
following order:
The applicant’s
application is dismissed with costs.
_________________
Gush J
Judge
of the Labour Court of South Africa
APPEARANCES:
FOR
THE APPLICANT:
In Person
FOR
THE RESPONDENT: M.M
Posemann
Instructed by Macgregor
Erasmus
[1]
Pleadings
page 27 – 34.
[2]
Founding
affidavit para 36
[3]
[1999]
3 BLLR 209
(LAC)
[4]
At para 10.
[5]
S 190.
[6]
Pleadings
page 28.