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[2018] ZALCJHB 306
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Thipe and Others v Bader South Africa (Pty) Ltd (J619/14) [2018] ZALCJHB 306; [2019] 1 BLLR 102 (LC) (28 September 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J619/14
In
the matter between:
SALAMINAH
SELLY THIPE AND
OTHERS
Applicants
and
BADER
SOUTH AFRICA (PTY)
LTD
Respondent
Heard:
25 August 2018
Delivered:
28 September 2018
Summary:
Jurisdiction – the applicants failed to prove that the unfair
dismissal was ever referred to conciliation –
alternatively,
condonation is refused as the degree of lateness is extensive and the
explanation is unreasonable and inadequate.
JUDGMENT
NKUTHA-NKONTWANA.
J
Introduction
[1]
In this
application the applicants seek the Court’s indulgence to
condone the late filling of their statement of case and
to allow an
amendment thereof. The late referral is not the only obstacle facing
the applicants. The respondent takes issue with
the jurisdiction of
this Court on the basis that a dispute relating to the dismissal of
the applicants was never referred to conciliation.
Was
the dispute ever conciliated?
[2]
On 2
February 2018, Lagrange J issued an order directing the applicants to
satisfy the Court that:
2.1.
The
dismissal dispute had been referred for conciliation;
2.2.
A copy of
the alleged referral of the dismissal dispute was served on the
respondent; and
2.3.
The
dismissal dispute was dealt with at conciliation.
[3]
The
applicants did indeed file the supplementary papers in response to
the directive by Lagrange J. In the papers filed, there is
a document
purporting to be the referral form (LRA 7.11) referring the unfair
dismissal dispute to the Commission for Conciliation
Mediation and
Arbitration (the CCMA). The respondent denies having been served with
the said referral.
[4]
It is
common cause, however, that the applicants did refer an unfair labour
practice dispute that was duly conciliated and a certificate
of
non-resolution was issued on 27 July 2012 under case number
GAJB15597-12. The unfair labour practice dispute was subsequently
referred to arbitration. There is no explanation provided as to why
the arbitration proceedings only sat on 14 January 2014. Nonetheless,
commissioner SS Molapo ruled that the CCMA lacked jurisdiction to
arbitrate the dispute as it relates to a unilateral change to
terms
and conditions of employment and directed the parties to refer the
dispute to this Court.
[5]
Nowhere in
the ruling does the commissioner refer to the unfair dismissal
dispute. This is so despite the applicants having been
dismissed on
25 June 2012. The LRA 7.11 form referring the unfair labour practice
was only filed with the CCMA on 10 July 2012
and the dispute was
conciliated on 27 July 2012. The allegation that the unfair dismissal
dispute had been consolidated with the
unfair labour practice dispute
is not supported by the CCMA documents. It boggled one’s mind
why the applicants found it
so hard to obtain proof that indeed the
unfair dismissal dispute had been referred and conciliated
accordingly by the CCMA. Unlike
in this Court, the CCMA case
management systems is electronic and it would have taken just a click
of a button to retrieve the
whole history of this matter and
pertinent documentation.
[6]
Conversely,
the applicants expect this Court to accept some illegible LRA 7.11
form which is dubiously looking, as proof that the
unfair dismissal
dispute had been referred to the CCMA and conciliated. The respondent
denies that it was ever served with the
illegible LRA 7.11. In any
event, it is not typical of the CCMA to fail to properly identify the
next forum that has jurisdiction
once the matter remains unresolved
at conciliation. The commissioner would have directed the applicants
to approach this Court
as early as 27 October 2012. Since the
applicants were represented by the union, they ought to have been
better advised in terms
of dispute resolution processes in any way.
[7]
I am not
convinced the unfair dismissal dispute had been referred to the CCMA
or that it was ever conciliated. In the circumstances,
the
Court lacks jurisdiction to adjudicate the unfair dismissal dispute.
Condonation
[8]
For
completeness sake, I have also looked at the condonation application.
The degree of lateness is extensive as 16 months
had already
lapsed when the proceedings in this Court were launched. The
explanation is patently unreasonable and inadequate. There
is no
account given for the delay of about 14 months. The applicants
incorrectly commence the calculation of the degree of lateness
from
20 January 2014, the date of the CCMA ruling. Even though the
respondent raised this point in its answering affidavit, nowhere
is
it addressed in the applicants’ replying or supplementary
affidavits.
[9]
In the
applicants’ own version, they were members of very experienced
trade unions, NUMSA and SACTWU at the time of their
dismissal. They
choose to bring a new trade union that referred the dispute to the
CCMA on their behalf. Other than asserting that
they joined the new
union because they were in the dark after their dismissal, the
applicants are not open to the Court about the
reasons that led their
erstwhile unions to bail out on them. Therefore, their counsel’s
impassioned plea that they should
be indulged because they had no one
to guide them is untenable.
[10]
In
Collet
v Commission for Conciliation Mediation and Arbitration and
Others,
[1]
expounding the principles applicable when dealing with a condonation
application, the Labour Appeal Court stated that:
‘
[38] 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
,
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. [also reported at
[1962] 4 All SA 442
(A) –
Ed] should be followed but:
“
(T)here 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 good prospects of success, no matter how good the
explanation for the delay,
an application for condonation should be
refused.”
[11]
Similarly,
there is no need to consider the prospects of success in the
circumstances of this case. However, having perused the
file, I am of
the view that the prospects of success are hopeless.
Conclusion
[12]
In the
circumstances,
the
Court lacks jurisdiction to deal with the matter because the unfair
dismissal dispute has never been referred to conciliation.
Alternatively, the applicants have failed to show good cause for the
grant of condonation for the late filing of their statement
of case.
Costs
[13]
On the
issue of costs, Mr Grogan, for the respondent, sought an order as to
costs. I am disinclined to grant costs as the applicants
are
individual litigants and their attorneys of record and counsel
entered appearance on a
pro
bono
basis.
[14]
In the
premises, I make the following order:
Order
1.
The
application is dismissed.
2.
There
is no order as to costs.
____________________
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the applicants: Advocate LMS Mello
Instructed
by: LMK attorneys
For
the respondent: Advocate J Grogan
Instructed
by: Lexicon Attorneys
[1]
(2014) 35 ILJ (LAC);
2014 6 BLLR 523
(LAC) at para 38.