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[2018] ZALCJHB 141
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Dinkelman v Fruit and Veg City Gauteng (Pty) Ltd t/a Foodlovers Market (JS641/16) [2018] ZALCJHB 141 (23 March 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JS 641/16
In
the matter between:
RORY
DINKELMAN
Applicant
and
FRUIT
AND VEG CITY GAUTENG (PTY) LTD t/a
FOODLOVERS
MARKET
Respondent
Heard:
13 October 2017
Delivered:
23 March 2018
JUDGMENT
TLHOTLHALEMAJE, J.
Introduction:
[1]
The applicant seeks condonation
for the late filing of his statement of case. As per his claim, the
applicant seeks an order declaring
his dismissal by the respondent to
be automatically unfair within the meaning of section 187 of the
Labour Relations Act (LRA)
[1]
,
or in the alternative, that the dismissal was procedurally and
substantively unfair. The application is opposed.
[2]
The statement of claim was filed and served on 20 October 2016,
together with an application for condonation. The
respondent had
filed an answering affidavit on 24 November 2016. The
applicant elected not to file a replying affidavit.
Preliminary points:
[3]
The respondent’s answering affidavit to the condonation
application was filed out of time by some 20 days. The applicant
did
not file a notice of objection as contemplated in clause 11.4.2 of
this Court’s Practice Manual, nor did he seriously
oppose the
granting of condonation in that regard.
[4]
In opposing the application, the respondent raised a preliminary
point to the effect that the Court lacked jurisdiction to adjudicate
the dispute on the grounds that subsequent to his dismissal, the
applicant had only referred an alleged unfair labour practice
dispute
to the Commission for Conciliation Mediation and Arbitration (CCMA),
which dispute was also recorded by the CCMA on the
certificate of
outcome as being one that was conciliated. It was contended that the
alleged unfair labour practice dispute was
referred on
2 February 2016, prior to his dismissal, which took place
on 11 February 2016.
[5]
To the extent that this was the case, it was contended that the
certificate attached to the statement of case pertained to a
different dispute other than an automatically unfair dismissal, and
since the applicant had relied on it in referring the latter
dispute,
the Court lacked the necessary jurisdiction to adjudicate the matter,
particularly since the dispute sought to be adjudicated
was not
conciliated.
[6]
It is trite that for this court
to have jurisdiction to adjudicate alleged unfair dismissal disputes
that ordinarily ought to be
adjudicated
[2]
,
that dispute must have been referred for conciliation
[3]
.
For the purposes of adjudication, and as further evident from the
provisions of section Sections 115(1), 133(1) and 135(1) of
the LRA.
it is further trite that the dispute conciliated, must have been the
dispute referred by a party.
[7]
As to whether a particular
dispute was referred to conciliation or not involves an examination
and construction of the contents
of the referral documents
[4]
.
In this case, Annexure ‘LDJ3’ to the answering affidavit
is a copy of a referral for Con/Arb dated 24 February 2016,
in which the applicant had alleged the nature of the dispute as
pertaining to an unfair labour practice and a dismissal. He further
summarised the facts of the dispute as pertaining to an alleged
automatically unfair dismissal, which dispute arose on
11 February 2016
and sought reinstatement with back pay /
maximum compensation.
[8]
A Certificate of outcome issued on 12 April 2016
however only reflects that a matter pertaining to an alleged
unfair
labour practice referred to the CCMA on 2 February 2016
remained unresolved. This copy is materially different
to the one
furnished by the applicant as attached to his statement of claim,
which reflect the same information other than the
date that the
dispute was referred for conciliation, which is reflected as
12 February 2016.
[9]
Both certificates however reflect that the dispute should be
arbitrated. In my view, and further to the extent that it was common
cause that the respondent did not attend the conciliation proceedings
for whatever reason, and it further being common cause that
the
applicant was dismissed on 11 February 2016, I am satisfied
that based on the contents of the referral form, and
notwithstanding
the fact that the certificate of outcome merely reflects an alleged
unfair labour practice dispute having been
referred, this Court has
the requisite jurisdiction to adjudicate the alleged automatically
unfair dismissal dispute as claimed
in the applicant’s
statement of claim.
[10]
It follows that the preliminary point raised by the respondent cannot
be upheld. What remains however is whether the applicant
has shown
just cause for the delay in referring this matter for adjudication.
Condonations and the legal
position:
[11]
The Court’s discretion when considering applications for
condonation derive from the provisions of section 191(11)(b)
of the
LRA and Rule 12 of the Rules of the Conduct of Proceedings. Thus, on
good cause shown, the Court may condone the non-observance
of the
time frames stipulated in section 191 of the LRA or in its Rules.
[12]
The test for condonation as
enunciated in
Melane v
Santam Insurance Co. Ltd
[5]
remains authoritative. Added to the factors to be considered in
Melane
is whether overall, it is in the interests of justice to grant
condonation. To the extent that the dispute was to be referred to
this Court, section 191(5)(b)(i) read with section 191(11)(a) of the
LRA required that the referral should have been made within
90 days
from the date that the certificate of outcome was issued. In this
regard, the dispute was supposed to have been referred
to this Court
on or no later than 15 July 2016. The referral was
therefore some four months out of time, which is excessive,
albeit
not in the extreme.
The explanation for the delay:
[13]
To enable this Court to
properly exercise its discretion, a party seeking condonation must
set out all the facts and circumstances
relating to the delay, and
most importantly, must provide a satisfactory explanation for each
period of the delay. Any period of
delay that is unaccounted for,
will result in condonation being refused
[6]
.
[14]
The applicant’s explanation for the delay was that upon receipt
of a copy of the certificate of outcome, he had requested
a case
number from this Court on 20 July 2016, and that therefore
his referral to the Court was only nine days out of
time. This
contention obviously lacks merit. A request for a case number cannot
be equated with the filing of a statement of claim
as contemplated in
Rule 6 of the Rules of this Court. To the extent that he had only
filed a proper statement of claim on 20 October 2016,
the
delay is not nine days, but about some four months.
[15]
The applicant further attributed the delay to the fact that he is a
member of Labour Project, a monthly membership organisation
that
provides labour related services to its members for a monthly fee.
When he initially referred an unfair labour practice (related
to
promotion) dispute to the CCMA, he was represented by a different
attorney (Quinton Horne), who was mandated by Labour Protect
to
pursue that matter. When the matter had to be referred to this Court
as a result of the applicant’s dismissal, he had
to get a
different set of attorneys (current attorneys of record) who
originate from Cape Town.
[16]
The applicant further attributed the delay to the fact that when the
matter was handed over to a new set of attorneys, there
were delays
in taking instructions as well as preparing the documents. He however
contended that since then, he had done everything
possible to refer
the matter timeously, hence the filing of the statement of claim and
the application for condonation simultaneously.
He further averred
that he was a lay person and relied upon his attorneys to ensure that
the matter was properly before the Court.
[17]
In this case, I am of the view
that the Applicant’s explanation falls short in accounting for
each period of the delay. The
nub of his explanation is to blame his
legal representatives or people that were supposed to assist him and,
and it is trite that
there is a limit beyond which a litigant cannot
escape the results of his representative’s lack of
diligence
[7]
.
In opposing the application, it was correctly pointed out on behalf
of the respondent that the applicant’s explanation is
of a
general nature and void in detail, particularly since it must be
taken into account that he was always legally represented.
[18]
The applicant does not give details regarding when Labour Protect was
contacted, who had assisted him in Labour Protect, when
the new set
of attorneys were secured, and the reason it took some four months
before a statement of case could be filed. Significantly,
and despite
apportioning blame on Labour Protect or mandated attorneys, no
confirmatory affidavits were forthcoming to explain
further what the
cause of the delay was. The excuse that the applicant is a layperson
is indeed lame in the light of him being
legally assisted or entitled
to legal assistance from Labour protect by virtue of his membership
of that organisation. That association
in my view cannot be any
different to that between attorney and client. In the light of these
deficiencies in the explanation for
the delay, it follows that it
ought to be rejected as being unsatisfactory.
Prospects of success:
[19]
In
NUM
v Council for Mineral Technology
[8]
,
it was held 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”
[20]
In the light of the nature of the delay in referring the dispute, and
further in view of the unsatisfactory explanation proffered
for the
delay, it would not, based on the above authority, be necessary to
deal with the applicant’s prospects in respect
of the main
claim. However, for the sake of completeness, it is significant to
note that it was common cause that the applicant
was dismissed for
acts of alleged misconduct involving making false and damaging
statements towards the company in that as a manager,
he aired his
grievances to junior staff, including telling them that he was going
to sue the company; disrespecting the Regional
HR Manager; and using
his cell phone on the shop floor contrary to company policies.
[21]
According to the internal
enquiry findings and sanction report
[9]
,
the applicant had pleaded guilty to the charge of making false and
damaging statements towards the company. The chairperson had
also
found him guilty of the charge of disrespecting the HR Manager.
[22]
The applicant however contended that his dismissal was automatically
unfair as he had raised an internal grievance. He based
his
contentions on the timing of his dismissal, the respondent’s
alleged refusal to address him on the issues raised in his
grievance,
and the harshness of the sanction of dismissal. In his statement of
claim, the applicant went at length in disputing
the fairness of the
sanction, contending
inter alia
that it was excessive as there
was a failure to apply progressive discipline.
[23]
In the original statement of claim, it is safe to conclude that the
details in regard to the reason the dismissal was viewed
as
automatically unfair were sketchy, and the manner with which the
claim was pleaded cannot
prima facie
, point to an
automatically unfair dismissal. This had resulted in an exception
being raised by the respondent in terms of Rule
11 of the Rules of
this Court.
[24]
An amended statement of claim was filed on 28 June 2017
after the respondent had filed a Rule 11 application to complain
about the irregularities in the original statement of claim and the
fact that the statement did not contain clear and concise statement
of the legal issues.
[25]
It was only in the amended statement of claim that an elaborate
history of grievances was proffered to indicate the reason
it was
alleged that the dismissal was automatically unfair. What is
significant however for the purpose of a determination of this
application is the averments made in the application for condonation
and the respondent’s answer thereto, bearing in mind
that the
applicant failed to file a replying affidavit.
[26]
The respondent had denied that there were grievances pending at the
time that the applicant was dismissed, or that there was
any causal
connection between the reason for the dismissal and the litany of
grievances lodged by the applicant. It was argued
that there was no
basis for the applicant to be dismissed for merely lodging a
grievance, particularly in view of his previous
history of lodging
several grievances in regard to a variety of matters.
[27]
The respondent further denied that it had unilaterally changed the
applicant’s job title, duties and responsibilities
whilst still
employed, as he was at all material times consulted over these
issues. To the extent that the applicant had continuously
raised
grievances and complaints about his promotion or remuneration, these
were addressed at all relevant times, but the applicant
had
consistently remained disgruntled. It was contended that his
dismissal related to nothing else other than the allegations of
misconduct, and that the dismissal was procedurally and substantively
fair.
[28]
In the light of the failure to file a replying affidavit, and further
having had regard to the amended statement of claim and
the founding
affidavit in respect of this application, I am satisfied that the
applicant as correctly pointed out on behalf of
the respondent, has
failed to provide any factual basis to substantiate his allegation
that he was dismissed for any other reason
but for misconduct. As
further pointed out on behalf of the respondent, the invariable
conclusion to be drawn from the applicant’s
pleadings and as
further evident from the written heads of argument in regard to this
application, is that his claim essentially
relates to the fairness of
his dismissal and in particular, the severity of the sanction, and
this Court is not the proper forum
to deal with such disputes. In the
end, I am not satisfied that the applicant has demonstrated a
reasonable prospect of success
in respect of his alleged
automatically unfair dismissal claim.
Other considerations and
conclusion:
[29]
Based on a conspectus of facts as elucidated above, it follows that
the applicant has not shown good cause as to why the late
filing of
his statement of claim should be condoned. It cannot be doubted that
it is the respondent that stands to suffer extreme
prejudice should
condonation be granted in circumstances where a delay of about four
months is not sufficiently and in detail,
accounted for, and further
in circumstances where on the papers, the applicant’s prospects
of success on the merits of the
main claim are poor.
[30]
In
Brummer
v Gorfil Brothers Investments (Pty) Ltd
[10]
,
it was stated that the interests of justice should be an overall
consideration when dealing with applications for condonation.
In the
light of the factors considered and conclusions reached in that
regard, the interests of justice dictate that the application
for
condonation should not be granted. Further having further had regard
to considerations of law and fairness, I am of the view
that a cost
order is not appropriate in this case.
Order:
[31] In the premises, the following
order is made;
1.
The late filing of the Respondent’s answering affidavit
to the
application for condonation is condoned
2.
The application for condonation for the late filing of the
Applicant’s statement of claim is dismissed.
3.
There is no order as to costs.
_____________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For the
Applicant:
Mr. K Munro of RM Brown Attorneys
For the
Respondent:
Adv. C Goosen
Instructed
by:
Van Gaalen Attorneys
[1]
Act 66 of 1995
[2]
Section 157(5) of the LRA provides that:
“
Except
as provided for in section 158(2), the Labour Court does not have
jurisdiction to adjudicate an unresolved dispute if this
Act or any
employment law requires the dispute to be resolved through
arbitration.”
[3]
See
National Union of Metal
Workers of South Africa v Driveline
[1999] ZALC 157
;
2000 (4) SA 645
(LAC);
National
Union of Metal Workers of SA v Intervalve
(Pty) Ltd
[2014] ZACC 35
; (2015) 36 ILJ 363 (CC);
2015 (2) BCLR 182
(CC);
September and Others
v CMI Business Enterprise CC
(CCT279/16)
[2018] ZACC 4
(27 February 2018)
[4]
Intervalve
at
para 100
[5]
1962
(4) SA 531
(A) at 532B-E, where it was held that;
‘
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 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 therefor, the
prospects of success and the importance of the case. Ordinarily
these facts are interrelated, they are not individually decisive,
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 may
tend to compensate for a long
delay. And the Respondent’s interests in finality must not be
overlooked”
[6]
See NUMSA and another v Hillside Aluminium [2005] 6 BLLR 601 (LC)
[7]
Saloojee & another NNO
v Minister of community Development
1965 (2) SA 135
(A). See also
Buthelezi
& others v Eclipse Foundries Ltd
(1997)
18 ILJ 633 (A) at 638I–639A
[8]
1999 3 BLLR 209
(LAC) at p211 paragraph G-H
[9]
Annexure
‘RD4’ to the Statement of Claim
[10]
[2000] ZACC 3
;
[2000] (2) SA 837
(CC) at 839 F