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[2018] ZALCJHB 151
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Ludick v Pharmacare Ltd t/a Aspen Pharmacare (JS527/17) [2018] ZALCJHB 151 (27 March 2018)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
CASE
NO: JS 527/17
In
the matter between:
CHRISTPHER
LUDICK
A
pplicant
and
PHARMACARE
LTD t/a ASPEN PHARMACARE
Respondent
Application
heard: 16 March 2018
Judgment
delivered: 27 March 2018
JUDGMENT
VAN
NIEKERK J
[1] This is an
application to condone the late referral of a statement of claim.
[2]
It is trite that condonation is not there merely for the asking, nor
are applications for condonation a mere formality (see
NUMSA
v Hillside Aluminium
[2005] ZALC 25
;
[2005] 6 BLLR 601
(LC);
Derrick Grootboom v National
Prosecuting Authority & another
[2013] ZACC 37]).
A party seeking condonation must make out a case
for the indulgence sought and bears the onus to satisfy the court
that condonation
should be granted.
[3] This court is required to exercise
a discretion, having regard to the extent of the delay, the
explanation proffered for that
delay, the applicant’s prospects
of success, and the relative prejudice to the parties that would be
occasioned by the application
being granted or refused.
[4]
In this court, that formulation, which has its roots in
Melane v
Santam Insurance Co Ltd
1962 (4) SA 531
(A), has long been
qualified by the rule that where there is an inordinate delay that is
not satisfactorily explained, the applicant’s
prospects of
success are immaterial. In
National Union of Mineworkers v Council
for Mineral Technology
[1999] 3 BLLR 209
(LAC) the LAC said the
following:
…
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.
[5] This principle was recently
reaffirmed in
Collett v Commission for Conciliation, Mediation and
Arbitration
[2014] 6 BLLR 523
(LAC), a unanimous judgement of the
LAC, Musi AJA held as follows:
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. In
NUM v Council for Mineral Technology
[1999] 3 BLLR
209
(LAC) at para 10, it was pointed out that in considering whether
good cause has been shown the well-known approach adopted in
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531
(A) at 532C-D …
Should be followed but:
‘
There
is a further principle which is applied and that is without a
reasonable and acceptable explanation for the delay, the prospects
of
success are immaterial, and without good prospects of success, no
matter how good the explanation for delay, an application
for
condonation should be refused.’
The
submission that the court a quo had to consider the prospects of
success irrespective of the unsatisfactory and unacceptable
explanation for the gross and flagrant disregard of the rules is
without merit.
[6]
It is also well-established that once the party in default becomes
aware that condonation is necessary, an application for condonation
must be filed without further delay (see
CWIU & another v Ryan
& others
[2001] 3 BLLR 337
(LC)).
[7]
The material facts are not in dispute. In November 2016, the
applicant lodged a grievance concerning the level of his remuneration
compared with that of other employees. The grievance remained
unresolved and a dispute was ultimately referred to the CCMA. On
10
February 2017, the CCMA issued a certificate of outcome recording
that the dispute remained unresolved and that it could be
referred to
this court for adjudication. For reasons that remain unclear, the
applicant referred the matter to arbitration. At
the arbitration
hearing, on 8 June 2017, the respondent objected to the CCMA’s
jurisdiction to arbitrate the dispute and
on 22 June 2017, a
jurisdictional ruling was issued to the effect that should the
applicant wish to pursue the dispute, he may
refer it in terms of s
10 (6) (a) of the Employment Equity Act. That section provides for
the referral of disputes to this court
for adjudication, in the
absence of consent to arbitration. In the present instance, no such
consent was ever sought or given.
The jurisdictional ruling records
that both parties’ representatives, their current attorneys of
record, were present at
the hearing. The applicant did not dispute
the jurisdictional point taken by the respondent.
[8] On 10 July 2017, three weeks
later, the applicant filed a statement of claim in which he contends
that the respondent’s
conduct in paying him ‘disproportionate’
remuneration, as compared to other employees on an equal or more
junior level,
violated the principle of equal pay for work of equal
value and thus constituted an act of unfair discrimination. On 2
November
2017, the respondent filed a reply to the statement of
claim. In the reply, the respondent took the point that the statement
of
claim had been filed outside of the 90-day period calculated from
the date of the certificate of outcome. The respondent also contended
that the statement of claim had not been properly served since
despite requests by the respondent’s attorney of record that
any statement of claim be served on their offices, the applicant had
failed to do so, and instead served by registered post to
an address
to which there was no conceivable prospect of postal delivery. To the
extent that the respondent persists with the submission
that the
stament of claim was filed other than in compliance with the Rules,
this is not relevant to the present application and
I do not intend
to give further consideration to it. The respondent also gave notice
of its intention to except to the statement
of claim and without
filing formal notice of exception, called upon the applicant to file
an amended statement of claim. A notice
of amendment was filed on 11
December 2017, but the applicant has not yet filed an amended
statement of claim.
[9] The application for condonation
for the late filing of the statement of claim was filed only on 27
December 2017. In the founding
affidavit, the applicant avers that
the extent of the delay is 57 days, and thus not excessive. He also
states, without elaboration,
that he believed that the CCMA would be
able to arbitrate the matter and referred the matter to arbitration
on that basis. Between
end-February and 5 June 2017 the applicant
states that he underwent surgery and was not aware that the
respondent would object
to the CCMA’s jurisdiction and further
that ‘as soon as’ his attorneys received the
jurisdictional ruling, a
statement of claim was drafted and filed.
[10] Insofar as the applicant’s
prospects of success are concerned, he says no more than that he has
strong prospects of success
and documentary proof in his possession
to the effect that employees on his level and lower level were
earning ‘up to 40%
more than him’.
[11] Having regard to the principles
set out above, I will accept in the applicant’s favour
that the delay is one to
the extent that he submits, and not the 167
days that elapsed between the date of the certificate and the date on
which the respondent’s
attorneys contend that the statement of
claim was served on them. In regard to the latter, there is no
explanation on the papers
as to why the applicant’s attorneys
failed to extend the respondent the courtesy that it sought of having
the statement of
claim served on its attorneys. There was clear
communication by the respondent’s attorneys to the applicant’s
attorneys
on more than one occasion by email and telephone, to which
the applicant’s attorneys did not have the courtesy to respond.
[12] It is simply not correct that as
soon as the applicant’s attorneys received the jurisdictional
ruling, they drafted and
filed a statement of case. the applicant’s
explanation fails to account for the fact that as early as February
2017, when
the certificate of outcome was issued, it was made
abundantly clear that should the applicant wish to pursue his
dispute, he would
have to refer the matter to this court for
adjudication. The applicant and his attorneys ought to have been
fully aware, at least
by 8 June 2017, when the respondent’s
attorneys delivered a notice of objection to the CCMA’s
jurisdiction, that the
CCMA had no jurisdiction to arbitrate the
dispute. It appears from the commissioner’s ruling that at the
CCMA hearing, the
applicant did not dispute that the CCMA had no
jurisdiction. Yet the applicant had persisted with the misguided
stance that led
to the ruling dated 22 June 2017.
[13] As I have noted, the statement of
claim was filed only on 11 July 2017, in circumstances where the
applicant and his attorneys
must have known of the need to apply for
condonation. Yet the application for condonation, which ought to have
been filed as soon
as the need for condonation was appreciated, was
filed only at the end of December 2017, some five and a half months
later, with
no explanation proffered for the late filing of that
application. In short, the explanation proffered by the applicant for
what
by any account, even on his version, is a significant delay, is
not satisfactory.
[14] Insofar as the applicant’s
prospects of success are concerned, these must be discerned from the
pleadings. The founding
affidavit in the condonation application
incorporates no more than a bald assertion to the effect that the
applicant considers
that he has ‘strong’ prospects of
success. It was incumbent on the applicant to have properly and fully
recorded the
reasons for this assertion. His failure to do so has
left the court with the task of evaluating the applicant’s
prospects
by reference to the pleadings. I have had great difficulty
attempting to ascertain precisely the nature of the applicant’s
claim. The Employment Equity Act was amended recently to provide
specifically for claims for equal pay for performing the same
or
substantially the same work, or work of equal value, where the
difference in pay is attributable, directly or indirectly,
to
one or more of the grounds specified in subsection 6 (1). At its most
basic level, any claim that a differential in levels of
remuneration
for the same or similar work or work of equal value constitutes
unfair discrimination must be rooted in one or the
grounds on which
unfair discrimination, direct or indirect, is prohibited. The
applicant fails to state whether the discrimination
that he alleges
is direct or indirect, nor does he assert any specified ground on
which he contends that the respondent has discriminated
against him.
In other words, it is an essential in an equal pay claim to assert
and establish a link between the differentiation
complained of (being
the difference in remuneration for the same work or work of equal
value) and a ground on which discrimination
is prohibited. It is not
enough, as the applicant is done, simply to point to a differential
in income and assert that the payment
of a lower rate to the claimant
constitutes an act of discrimination. It is also not enough for the
applicant to point to a differential
in income and assert that in the
absence of any other specified ground, the basis of the
differentiation is arbitrary, and constitutes
an act of
discrimination on that basis. Even less is there scope for what the
applicant refers to in his statement of claim as
‘disproportionate’
remuneration as a basis for an equal pay claim. Part II of the
Employment Equity Act is directed
at the prohibition against unfair
discrimination on specified grounds, not income differentials in the
abstract. To the extent
that the applicant may rely on discrimination
on an arbitrary ground (one of the grounds recognised by s 6 by way
of a recent amendment
to the section) this is not specifically
pleaded, nor is any proper basis laid for a claim of discrimination
on that ground. Discrimination
of the now specified ground of
arbitrariness requires the applicant at least to establish some
factual basis to demonstrate that
the difference in remuneration is
arbitrary or capricious or that it manifestly lacks any reason or
explanation. The applicant
was warned of this shortcoming in
his pleadings in the point in
limine
raised by the respondent,
yet he has taken no steps to address it. In my view, the statement of
claim, even in its amended form,
fails to disclose a cause of action
and accordingly, for present purposes, does not disclose any
prospects of success.
[15] In my view, the applicant has
failed to meet the threshold for condonation of the late filing of
his statement of claim. The
delay is not insignificant, and the
explanation for the delay is unsatisfactory. On that basis alone,
condonation stands to be
refused. Even if I were to have regard to
the applicant’s prospects of success,
ex facie
the
pleadings, there is significant doubt that the applicant has even
pleaded a case that warrants consideration. Finally, in relation
to
costs, I would accept, with some hesitation, that the applicant has
been
bona fide
in pursuing his grievance and the present
application. This court is conventionally reluctant to penalise
individual employees
in those circumstances, and I see no reason to
depart from that approach.
I make the following order:
1.
Condonation for the late filing of the
applicant’s statement of claim is refused.
2.
There is no order as to costs.
André van Niekerk
Judge