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[2018] ZALCJHB 94
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NEHAWU obo Mdlulwa v Airport Company South Africa (JS156/16) [2018] ZALCJHB 94 (9 February 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no:
JS
156/16
In
the matter between:
NEHAWU
obo NOMAZIZI
MDLULWA
Applicant
and
AIRPORT
COMPANY SOUTH
AFRICA
Respondent
Heard
:
02 February 2018
Delivered
:
9 February 2018
Summary:
An application seeking condonation for the late referral of the
statement of case. The applicant must provide an adequate explanation
why the referral was delayed. Where prospects of success are
non-existent, it is a futile exercise to grant condonation. It is
not
in the interest of justice to do so. Held (1): The application for
condonation is refused. Held (2): The applicant to bear
the costs of
the application.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
This is an application to seek condonation for the late referral of a
dispute of alleged discrimination. The application is
opposed.
[2]
The basis for the opposition is that the applicant failed to provide
an adequate explanation and that the prospects of success
are
non-existent.
Background
facts
[3]
Ms Mdlulwa (‘the member’) was
employed on a one year fixed term contract by the respondent. She
commenced employment
in November 2014. Her contract terminated in
November 2015. Around January 2015, Ms Mdlulwa discovered that she
fell pregnant.
She informed her supervisor about the discovery. She
had a number of complaints which led to her resignation by the end of
January
2015. Following her resignation she had a meeting with the
General Manager of the respondent. In that meeting, the General
Manager
allegedly accused her of not disclosing her pregnancy during
the interview process. She allegedly retracted her resignation on
account of the General Manager’s undertaking to resolve her
complaints.
[4]
On or about 11 May 2015, the member
commenced her maternity leave. She returned on or about 3 August
2015. According to her she
was harassed, victimized and discriminated
against. She filed a grievance, which the respondent allegedly failed
to take steps
to resolve. She then referred the grievance to the CCMA
for resolution. The dispute was certified to be unresolved.
[5]
Forty four days later, the applicant referred the
matter to this court. The respondent took exceptions and the
applicant attempted
to amend. The amendments were objected to and the
court has not as yet pronounced on the objections. Despite the late
referral,
no condonation was sought until a year later. A year after
the referral, the applicant sought condonation for the late referral.
The application was opposed and came before me for a decision.
Evaluation
[6]
The
explanation provided by the applicant is inadequate in many respects.
Certain time periods have not been accounted for with
no explanation
why. An applicant for condonation seeks an indulgence from the court.
He or she must adequately explain the default
and not leave the court
guessing. The applicant’s case is not altogether clear. From
the statement of case, it is apparent
that due to the alleged
utterances by the General Manager and the statements by her
supervisor, she felt victimized, harassed and
discriminated upon on
the grounds that she fell pregnant. The member bears the evidentiary
burden. In her founding papers, by which
she stands and falls, she
pegs her case on the utterances by the General Manager
[1]
.
I fail to understand how an accusation of misrepresentation would
amount to discrimination which is unfair. The speculation that
had
she disclosed the pregnancy she would not have been employed is
unhelpful. Clearly the member has no prospects of success.
To grant
condonation in such instances would not be in the interest of
justice
[2]
.
The respondent would be forced into incurring costs to defend an
unmeritorious action. Granting condonation would be a futile
exercise.
Issue
of costs.
[7]
The applicant had an unmeritorious case from the
onset. Thus it would be unfair to saddle the respondent with costs.
It is appropriate
for the costs to follow the results. Accordingly,
the applicant should bear the costs of this application.
Conclusion
[8]
I come to the conclusion that the explanation is
inadequate and the applicant’s prospects of success are
non-existent. Condonation
ought to be refused with costs.
[9]
In the results I make the following order:
Order
1.
The condonation application is hereby refused.
2.
The applicant to bear the costs of the
application.
_______________________
GN
Moshoana
Judge
of the Labour Court of South Africa
.
Appearances
For
the Applicant:
Mr N Thaanyane
Instructed
by:
Thaanyane Attorneys, Johannesburg.
For
the Respondent:
Ms P Moulahlo.
Instructed
by:
CDH Inc, Sandton.
[1]
Paragraph 46.1 of the FA
[2]
Grootboom v NPA and another
2013 ZACC 43.