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[2018] ZALCCT 18
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Danileyo v Indgro Outsourcing (Pty) Ltd (C785/16) [2018] ZALCCT 18 (10 May 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
case
no: C785/16
In the
matter between
NKULULEKO
DANILEYO
Applicant
and
INDGRO
OUTSOURCING (PTY)
LTD
Respondent
Heard: 22 March 2018
Delivered: 10 May 2018
JUDGMENT
RABKIN-NAICKER J
[1]
The Court had to consider an application for condonation of the late
filing of the respondent’s answering affidavit to
an
application to make a settlement agreement an order of Court. The
respondent was ordered to make such an application by this
Court on
the 12 September 2017. I cite the parties as they appear in the main
section 158(1)(g) application. The respondent should
have delivered
its opposing affidavit on or before 27 December 2016 but delivered it
on the 23 August 2017. This was an excessive
delay as respondent
concedes.
[2]
The applicant, who was employed as a driver, was dismissed by the
respondent on the 02 November 2016. On the 14 November 2016
the
parties reached a settlement agreement under the auspices of the
CCMA.
[3]
The material terms of the settlement agreement were that the
applicant would be reinstated on the same terms and conditions
of
employment which governed the employment relationship prior to his
dismissal from 9 September 2016; the applicant was to report
for duty
at the respondent’s offices at 08h00 on 21 November 2016 and
was to receive back pay in the amount of 2407.50 by
no later than 18
November.
[4]
The respondent has set out the reasons for the excessive delay in
filing its answering affidavit, in summary’ as follows:
*
The section 158(1) (c) application was served on the respondent on 9
December 2016 and the applicant made telephonic contact with
an
employee on the respondent Mr Gary Douglas to confirm he received the
application;
*
Mr Douglas absconded in the last week of December 2016 and left South
Africa and did not inform Mr Van Rensburg, the respondent’s
Employee Manager about the application;
*
Van Rensburg is the Respondent’s Employees Relations Manager
and part of his duties are to attend to all employment related
issues
which includes regularly appearing at the various CCMA offices
throughout the country. As a result, he only became aware
of the set
down notice dated 1 August 2017 from this court for the hearing of
the unopposed 158(1) (c) application (set down on
the 12 September
2017) on the 11 August 2017;
*
He contacted respondent’s attorney on the 14 August 2017 and
instructed them to oppose the application; arrangements were
made to
obtain the contents of the Court’s file. He consulted the
respondent’s attorneys on 23 August 2017.”
[5]
In his answering affidavit to the condonation application, the
applicant denies that Mr Douglas absconded from employment with
the
respondent and in amplification pleads that during the period 23
November 2016, up to 25 November 2016 after he had reported
back to
work in terms of the settlement agreement and was assisting with
office work at the respondent, he was made aware that
Mr. Douglas
would be leaving in December 2016 and that this was a known fact
amongst staff members at respondent’s offices.
This averment is
not specifically denied in the replying papers.
[6]
The Court must ask if the explanation for the delay is reasonable,
accepting that, on the principles of Plascon Evans principles;
the
evidence in the answering affidavit that Mr Douglas’ departure
at the end of December was a known fact by respondent’s
staff.
[7]
Mr van Rensberg further provides no supporting evidence regarding
dates in respect of his alleged busy schedule away from the
office.
[8]
In the Court’s view this is a matter in which, there is no
‘reasonable and acceptable explanation for the delay’
so
that ‘the prospects of success are immaterial’.
[1]
However, I will take a cautious approach and deal briefly with the
merits in any event.
[9]
The Company asked this Court to allow it to file a set of further
papers in the main application, a supplementary affidavit
to answer
the replying affidavit. I will allw for this. In its answering
affidavit to the pro forma application filed by the applicant,
the
company simply put up a defence to the section 1581)(g) application
that it had complied with the settlement agreement and
that the
applicant had absconded on the 9
th
December 2016. It made
no mention that it had not reinstated him on the same terms and
conditions of employment. In reply the applicant
averred in paragraph
5 (f) that he was in fact given office work and subsequently night
work on a 12 hour shift and on receipt
of his pay slip was paid as a
general worker. He states as follows:
“
As
a driver I use to work day shift or normal hours whereas as a general
worker I had to work night shift (twelve hour shift).
Prior my
dismissal, my hourly rate as a driver was 26.75. Subsequent to
reinstatement, I was required to work as a general work
(sic) at an
hourly rate of 16.90. A copy of pay slip is attached as annexure
“ND1”.”
[10]
In the supplementary affidavit, the respondent company for the first
time takes the Court into its confidence that: “no
driver
positions were available”. It further avers that: “….in
light of the fact that Danilyelo could not be
appointed in the
position of driver, as no driver positions were available, it was not
possible to record the position of driver
in the payslip as attached
to the answering affidavit, as these payslips would be submitted to
the client for payment. Accordingly
the difference between the
general worker and driver would have been paid at the end of the
month in which Dalileyo tendered his
services. The payment would have
been made without the knowledge of the client.”
[11]
It is noted that the respondent has no qualms about the new version
it now presents in its supplementary affidavit. Further
in specific
answer to applicant’s paragraph 5f as quoted above, its plea
amounts to the following:
“
Save
to admit that prior to Danilyeo’s dismissal he held the
position of driver and was only required to work day shifts the
remainder hereof is denied as Danileyo.”
[12]
Taking all of the above into account, I do not consider that the
respondent has any reasonable prospects of success in the
main
application. Given that I will not grant condonation for the
late filing of the answering affidavit, the application
in terms of
s158 (1) (g) is considered to be unopposed. This is a matter where
costs should follow the result more especially given
the respondent’s
conduct. I make the following order:
Order
1. The application for
condonation is dismissed;
2.
The settlement agreement under case number WECT 18061-16 is made an
order of court.
3. The respondent is to
pay the costs.
________________
H. Rabkin-Naicker
Judge of the Labour Court
Appearances
For
the Applicant: Mampana Wonga Attorneys
For
Respondent: Ria Matsala instructed by Hogan Lovells
[1]
NUM
v Council for Mineral Technology
[1999] 3 BLLR 209
(LAC) at para 10