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[2018] ZALCJHB 225
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Louwrens v Vital Castings CC (JS829/17) [2018] ZALCJHB 225 (25 June 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE NO: JS829/17
In the matter between:
JOHAN
LOUWRENS
Applicant
and
VITAL CASTINGS
CC
Respondent
Application heard: 22 June 2018
Judgment
delivered: 25 June 2018
JUDGMENT
VAN
NIEKERK J
[1] This is an application to condone
the late referral of a dispute to this court for adjudication.
[2] The material facts are not in
dispute. There are two referrals to the court. The first is a dispute
about an unfair labour practice;
the second a disputed unfair
dismissal. It would appear that the disputes were consolidated, and
that they were set down for arbitration
on 7 July 2017. On 10 July
2017, the commissioner made a ruling to the effect that the CCMA
lacked jurisdiction to entertain the
disputes and that they should be
referred to this court for adjudication. The commissioner held that
the applicant’s unfair
dismissal dispute concerned a dismissal
for a reason that is automatically unfair, since the applicant
alleged that the reason
for his dismissal was that he had made a
protected disclosure to the department of labour in respect of unsafe
working conditions.
The unfair demotion dispute, the commissioner
found, was similarly grounded in the applicant’s allegations of
an unsafe working
condition and directly related to his dismissal. In
these circumstances, and with the parties’ broad agreement, the
commissioner
held the CCAM had no jurisdiction and advised the
applicant to refer both disputes to this court.
[3] The applicant’s statement of
case was filed on 13 October 2017. The applicant concedes that
the disputes were filed
284 and 309 days late respectively, and that
these delays are excessive.
[4] The applicant’s explanation
for the delay is largely one of ignorance – he did not
understand the jurisdictional
complexities and it was only on 10 July
2017 when the commissioner attempted to ascertain the real dispute
between the parties
that he appreciated that he was in the wrong
forum. His belief that he had correctly referred the disputes had
been sustained by
the reference in the certificate of outcome granted
in the unfair labour practice dispute to the effect that the dispute
should
be referred to arbitration, and in the unfair dismissal
dispute by the ruling that his late referral to arbitration should be
condoned.
[5] In respect of the delay after 10
July 2017, the applicant avers that he experienced some difficulty
contacting a specialist
firm, with which he made contact in
mid-August 2017, and that he managed to secure a consultation on 11
September 2017. The need
to secure and collate documentation and
afford his attorney proper instructions had the result that the
statement of case was filed
only on 13 October 2017.
[6] In addressing his prospects of
success, the applicant states that he was discriminated against and
dismissed on account of having
made a protected disclosure. The
disclosure on which the applicant relies comprises a report to the
department of labour at its
local and provincial offices.
[7] In relation to the issue of
prejudice, I was advised that the applicant sought orders of
compensation, and that he did not wish
to be reinstated or
re-employed.
[8] The court has a discretion, to be
exercised judicially, to grant condonation. Among the factors
usually relevant for consideration
are the degree of lateness, the
explanation therefor, the prospects of success, the prejudice that
parties will suffer if condonation
is granted or refused, and the
importance of the case. None of these factors are individually
decisive and the court must
consider all the facts. In the
final analysis, it is a matter of fairness to the parties.
Condonation applications require
a court to balance various interests
and factors, having regard to all of them with none of them being
decisive. (See
Melanie v Santam Insurance Co. Ltd
1962 (4) SA
531
(A) at page 532;
NEHAWU obo Mafokeng and Others v Charlotte
Theron Children’s Home
[2004] 10 BLLR 979
(LAC).
[8] As I have indicated, the applicant
concedes that the delay is excessive. The explanation for the delay,
certainly until the
jurisdictional ruling, is acceptable. The
jurisdictional bifurcation between this court and the CCMA if often
complex, and despite
the respondent’s assertion to the effect
that the applicant is engaged in no more than forum shopping and that
he made a
decision to abandon his claims at the CCMA, this is not
what is reflected in the commissioner’s ruling. On the
contrary,
the ruling records there the parties were ‘essentially
in agreement’ that the dispute had to be referred to this
court,
and there is no indication the real reason for the dismissal
emerged other than during an attempt by the commissioner to narrow
the issues dispute. In regard to the delay after the jurisdictional
ruling was issued, I accept that the applicant is based in
Kroonstad, that he was required to look for an attorney sufficiently
experienced to draft the statement of claim and that there
were
delays in the process that were not the consequence of any dilatory
conduct on the part of the applicant. In short, the explanation
for
the delay is not unreasonable. The present application really hinges
on the applicant’s prospects of success. The court
is required
to be satisfied that their the applicant has made out a
prima
facie
case the respondent does not dispute that the applicant
made reports to the Department of labour and their action was taken
against
the respondent is consequence. The respondent contends that
the applicant was dismissed for legitimate reasons, and ascribes his
medical condition to factors other than those which have their
origins in the workplace. On the face of it, if the applicant
succeeds
in establishing the averments made in his statement of
claim, his claim of having suffered an occupational detriment on
account
of having made a protected disclosure, his claim may well
have merit. To the extent that the respondent submits that the
applicant
was dismissed for
bona fide
reasons, most claims of
dismissal or demotion consequent on having made a protected
disclosure involves an apparent and a real
reason to dismiss, an
issue that is best resolved by evidence. In regard to the issue of
prejudice, apart from the obvious but
minimal prejudice consequent on
delay, it seems to me that the prejudice to the applicant in closing
the doors of the court to
him outweighs any prejudice to the
respondent in having to defend the applicant’s claims. This is
particularly so where the
applicant has abandoned the remedy of
reinstatement, and where the only issue should the applicant succeed
in establishing his
claim is the quantum of any compensation to which
he may be entitled.
[9] In short, I am satisfied that
notwithstanding an excessive delay, the applicant acted with
sufficient diligence to pursue his
claim after a ruling that the
CCMA, where those claims were initially lodged, had no jurisdiction,
that on the face of it, his
prospects of success are not such that
condonation ought to be refused and finally, that on balance, given
the nature of the relief
sought by the applicant the consideration of
prejudice favours the applicant. For these brief reasons, the
application for condonation
ought to be granted.
[10] Finally, in relation to costs,
the court has 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. Those interests are best served by each party bearing its
own costs.
I make the following order:
1.
The late filing of the applicant’s
statement of claim is condoned.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: Mr Brandmuller, Brandmuller Attorneys
For
the respondent: Adv. H Gerber, instructed by Welman and Bloem
Attorneys