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[2019] ZALCJHB 144
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Lefifi and Others v Specialized Security Services (Pty) Ltd (JS405/16) [2019] ZALCJHB 144 (1 February 2019)
the
labour court of South Africa, johannesburg
judgment
Not
reportable
CASE
NO: JS405/16
In the matter between:
STEPHEN
LEFIFI & 15 OTHERS
Applicant
and
SPECIALIZED
SECURITY SERVICES (PTY) LTD
Respondent
Heard:
1 February 2019
Judgment
delivered: 4 February 2019
JUDGMENT
VAN NIEKERK J
[1]
This is an application to condone the late referral of an unfair
dismissal dispute.
[2]
The referral was made some seven months late. The explanation
proffered by the applicants
is that after their dismissal, they
consulted their attorney, who agreed to assist them and requested a
deposit. The applicants
managed over a period of some six months to
raise the required amount and instructed the attorney to proceed. The
statement of
case was delivered on 10 August 2016.
[3]
The applicants state in support of their application that they have
excellent prospects
of success, in that they were dismissed on the
basis of the respondent’s operational requirements without any
of the requirements
of the LRA being met. In the statement of
response, the respondent avers that the applicants were dismissed
following a retrenchment
process in the form of a joint consensus
seeking exercise, and that they were dismissed only after reasonable
alternative positions
could not be found.
[4]
When the application was argued, I invited Mr Crafford, who appeared
for the respondent,
to make submissions in relation to the
applicants’ prospects of success. He submitted that after the
applicants were removed
from the client’s premises, they were
advised that alternative placements would be secured within three
days. These alternatives
were in fact secured, but the applicants
refused to be redeployed. In essence, they had not been dismissed by
the respondent.
[5]
This is patently not the case made out by the respondent in its
statement of response.
It is also not a case supported by the
respondent’s own documentation, annexed to the statement of
claim, in which it is
clearly stated that in the absence of
alternative deployment, the applicants’ contracts would be
terminated. A letter issued
to the applicants on 31 July 2015 makes
clear that attempts to secure alternatives had been unsuccessful, and
that the applicants’
employment was terminated ‘with
immediate effect’ on the basis of the respondent’s
operational requirements.
There is no suggestion of any prior
consultation with the applicants, or of the ‘meaningful joint
consensus-seeking’
that Mr Crafford says occurred.
[6] The test
to be applied is well-established. 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
Melane 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).
[7]
The delay in the present instance is excessive. However, I accept
that the applicants
were always intent on pursuing the claim, and
that the obstacle they faced was the need to raise funds. During the
period of the
delay, they rasied the funds and paid the attorney. One
might criticise the conduct of the attorney who must have known at
the
time he was consulted that the referral was already out of time.
He might have advised them to contact the pro bono clinic for
assistance. The fact remains that he did not, and that the applicants
took steps to secure the necessary funds to pursue their claim.
There election to proceed with the claim to the exclusion of those of
their number who had been unable to contribute to the fund
raising
effort is an indication of their resolve. In these circumstances, the
applicants’ explanation for the delay in referring
the claim is
not unreasonable.
[8]
In so far as the applicants’ prospects of success are
concerned, Mr Crafford
either did not open his file before he came to
court, or he deliberately misled the court when making his
submissions on this issue.
Either way, his conduct is mendacious.
What made matters worse is that when Mr Crafford was confronted by
his own client’s
letters recording the fact of a dismissal for
operational requirements, Mr Crafford could say no more than that the
letters were
not legible. These letters are annexures to the
statement of case, and Mr Crafford no doubt took full instructions
from his client
when he drafted the statement of response which, as I
have indicated, says in as many words that the respondent did not
find alternative
employment for the applicants and that they were
accordingly retrenched. It seems to me that on the respondent’s
own pleaded
version and having regard to the documents filed, the
applicants were dismissed for failing a polygraph test in
circumstances were
they were not suspected of any particular
misconduct, and that they were dismissed for reasons related to the
respondent’s
operational requirements without any of the
procedural requirements prescribed by the LRA being followed. I agree
with them that
on the face of it, their prospects of success are
excellent, and this must weigh heavily in their favour in the
exercise of the
discretion relevant to the present application.
[9]
In so far as costs are concerned, the court has a broad discretion to
make an order
for costs according to the requirements of the law and
fairness. In my view, those interests dictate that the applicants
should
not be deprived of the costs that they have incurred in
bringing this application, and that Mr Crafford’s conduct
deserves
censure.
For these reasons, I make the
following order:
1.
The late referral of the applicants’
statement of claim is condoned.
2.
The respondent is to pay the costs of these
proceedings.
3.
The parties are directed to file a
pre-trial minute within 14 court days of the date of this order.
André van Niekerk
Judge
REPRESENTATION
For the applicants: Ms. F Sithole,
Ndumiso Voyi Inc.
For the respondent: Mr C Crafford,
Crafford Attorneys