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[2019] ZALCJHB 114
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Malefane v Samancor Chrome Ltd (JS303/18) [2019] ZALCJHB 114 (22 May 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
CASE
NO: JS303/18
In
the matter between:
SAMUEL
MALEFANE
Applicant
and
SAMANCOR
CHROME LTD
Respondent
Heard:
22 February 2019
Delivered:
22 May 2019
JUDGMENT
LALLIE
J
[1]
The applicant was employed by the respondent until he was dismissed
for operational
requirements of the respondent (retrenched) on 8
March 2016. On retrenchment the applicant held the position of
Operations Manager
which was a tier below the Chief Executive
Officer. After the retrenchment the applicant referred an unfair
retrenchment dispute
to the Commission for Conciliation, Mediation
and Arbitration (the CCMA). The applicant was informed by the CCMA on
24 May 2016
to apply for condonation of the late referral of his
dispute. As the respondent is a member of the Metal and Engineering
Industries
Bargaining Council (the MEIBC) which encountered problems
of resolving its members’ disputes at the time, the applicant’s
case was moved between the CCMA and MEIBC. The MEIBC eventually
issued the certificate of the non-resolution of the dispute the
applicant had referred (the certificate) on 16 November 2016. The
certificate reflected that the step the applicant had to take
was
referring the dispute to arbitration. The applicant in compliance
with the certificate referred his unfair retrenchment dispute
to
arbitration. On 6 February 2018 the MEIBC issued a ruling in which it
found that it lacked the jurisdiction to arbitrate the
applicant’s
dispute as it fell under the jurisdiction of the Labour Court. On 13
July 2018 the applicant filed the application
at hand seeking
condonation of the late filing of his statement of claim. The
application is opposed by the respondent.
[2]
The late filing of a statement of claim may be condoned on good cause
shown. In
Grootboom
v NPA
[1]
the test for condonation is couched in the following terms:
‘…
I agree
with him that, based on
Brummer
and V
an Wyk
, the
standard for considering an application for condonation is the
interests of justice. However, the concept “interests
of
justice” is so elastic that it is not capable of precise
definition. As the two cases demonstrate, it includes: the nature
of
the relief sought; the extent and cause of the delay; the effect of
the delay on the administration of justice and other litigants;
the
reasonableness of the explanation for the delay; the importance of
the issue to be raised in the intended appeal; and the prospects
of
success. It is crucial to reiterate that both
Brummer
and
Van
Wyk
emphasise that the ultimate determination of what is in the
interests of justice must reflect due regard to all the relevant
factors
but it is not necessarily limited to those mentioned above.
The particular circumstances of each case will determine which of
these
factors are relevant.’
[3]
The applicant submitted that the filing of this condonation
application was unnecessary
because he filed his statement of claim
within 90 days of receiving the jurisdictional ruling from MEIBC
advising him that his
unfair retrenchment dispute falls within the
jurisdiction of the Labour Court. He argued that he therefore
fulfilled the requirements
of section 191(11) of the Labour Relations
Act
[2]
(the LRA). The respondent
differed and argued that the applicant was obliged to seek
condonation as his statement of claim was
filed 14 months late. The
reason for the submission was that the 90 day period envisaged in
section 191(11) was computed form 16
November 2016, the date on which
the certificate was issued.
[4]
The respondent’s argument is correct. Section 191(5)(b)(ii)
read with section
191(11)(a) of the LRA require that an unfair
retrenchment dispute be referred to the Labour Curt within 90 days
after the certificate
has been issued,. The correctness of the
respondent’s version is expressed in the following dictum in
F&T
Electrical CC v MEWUSA obo E Mashatola and Others
[3]
:
‘
Before the Labour
Court may adjudicate a dispute, it, like any other court, should
first satisfy itself that it has jurisdiction.
In this case the
Labour Court failed to do so. The certificate of non-resolution was
issued on 3 March 2009. In terms of section
191(5) of the LRA the
employees were obliged to refer the dispute to the Labour Court or to
the bargaining council or CCMA, as
the case may be, within 90 days
from 3 March 2009. The Labour Court would not have jurisdiction to
adjudicate the dispute if the
dispute was referred to the Labour
Court after the expiry of 90 days from that date unless the employees
applied for condonation
and showed good cause. In this case, the
90-day period expired on or about 2 June 2009. The union referred the
dispute to the Labour
Court only on or about 7 October 2009. That was
a delay of about four months.’
[5]
As the statement of claim was filed over year after the
certificate was issued,
the applicant was obliged to file this
application and show good cause in terms of section 191(11)(b) for
condonation to be granted.
The applicant’s alternative argument
was that the late filing of his statement of claim be condoned. It is
common cause that
the extent of the delay is a year and two months.
The delay is excessive. The applicant gave details of the
difficulties he encountered
form the day he referred his dispute to
the CCMA. The main cause of the delay was that the CCMA and MEIBC
kept changing the forum
for the hearing of the applicant’s
dispute. The relevant period for purposes of this application
commences from 20 November
2016 when the applicant received the
certificate and ends on 2 May 2018, the day before the statement of
claim was filed. As the
certificate reflected that the applicant had
to refer his dispute to arbitration he did so. The delay caused by
the CCMA and MEIBC
endured until 9 February 2018 when he received the
ruing that his dispute had to be adjudicated by the Labour Court and
not arbitrated
by the MEIBC. The period thereafter is attributed to
the applicant’s difficulty to raise fees for his legal team and
waiting
for advice from his counsel.
[6]
The respondent submitted that the explanation for the delay is
unreasonable as the
applicant had no reason to refer his dispute to
arbitration after it was not resolved at conciliation. He knew that
the correct
forum to refer his dispute was the Labour Court as his
retrenchment was part of a large retrenchment as envisage in section
189A.
By virtue of his position and receipt of the retrenchment
notice in terms of section 189(3) which he received on 4 February
2016
he was made aware of the nature of the retrenchment. He was also
legally represented. His legal representative should have referred
his matter to the correct forum notwithstanding the contents of the
certificate. On 4 February 2016 the respondent briefed all
its
employees including the applicant on its operational requirements and
the section 189(3) notice. The applicant even signed
an attendance
register confirming his presence at the briefing. He was also present
at the consultation for non-unionised employees
which was held on 6
February 2016 and at the joint consultation on 10 February 2016. The
respondent submitted that the applicant
was involved in the
retrenchment process until he reached an agreement with it on
severance pay and his last day on duty. He was
legally represented
when he referred his dispute to the CCMA.
[7]
The applicant did not file a replying affidavit. In terms of the rule
in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[4]
I have to prefer the respondent’s version because it is neither
improbable nor far-fetched. The respondent’s version
that the
applicant was aware even before his retrenchment that he was part of
a mass retrenchment was not refuted. The applicant
therefore was
aware of the forum to which to refer his dispute and the period
within which it had to be referred after receiving
the certificate
because he was legally represented. He is the author of the delay
that resulted from referring his dispute to the
wrong forum. He may
therefore not rely on his self created delay. The explanation for the
excessive delay is therefore unreasonable.
[8]
The applicant submitted that he has prospects of success in the main
claim as his
retrenchment was both substantively and procedurally
unfair. He alleged that following a general meeting in which general
operational
requirement issues were mentioned, he was called to a
meeting on 8 March 2016 and retrenched. He denied having received a
section
189 notice and having been informed by the respondent that he
was part of a mass retrenchment process. He further submitted that
the collective settlement agreement reached by the respondent and
trade unions representing some of its employee was not binding
on
him. As already stated, the respondent submitted that the applicant’s
retrenchment was both substantively and procedurally.
[9]
The test for prospects of success in condonation applications is
whether the applicant
has made averments which if proved would lead
to his success in the main claim. In the averments made by the
applicant, other than
alleging that his retrenchment was
substantively unfair he made no factual averments to support the
allegation. He did not allege
that the respondent’s operational
requirements did not justify his retrenchment. He does not deny that
his retrenchment was
part of a mass retrenchment exercise. All he
submitted was that he was unaware of that fact. When the submissions
on the alleged
unfair procedural fairness are considered objectively
the conclusion that the applicant was in fact part of a mass
retrenchment
is inescapable. I have to accept the respondent’s
argument that the applicant was required to have challenged the
procedural
fairness of his retrenchment during the consultation
process in terms of section 189A(13). When the retrenchment process
is over
it is too late for the applicant to rely on the procedural
unfairness of his retrenchment
[10]
Any prejudice the applicant stands to suffer as a result of the
refusal of his condonation application
is self created. He cannot
escape the consequences of the delay which resulted from his
unreasonable decision to refer his dispute
to the wrong forum. The
respondent stands to suffer more prejudice should this application be
granted as the applicant’s
retrenchment resulted from the
redundancy of his position. The respondent’s right to have the
dispute resolved within reasonable
time cannot be overlooked.
[11]
The extent of the delay is excessive. The applicant did not provide a
reasonable explanation
for the late filing of his statement of claim.
He failed to prove that he was prospects of success. In
Grootboom
(supra)
the Constitutional Court emphasized the significance of
the explanation for the delay in condonation explanations. When all
the
circumstances of this matter are taken into account they lead to
the conclusion that the applicant did not show good cause to have
the
delay excused. Granting condonation is therefore not in the interests
of justice.
[12]
In the premises, the following order is made:
Order:
1.
The application for condonation of the late filing of the statement
of claim
is dismissed.
Z.
Lallie
Judge
of the Labour Court of South Africa
Appearances
:
For
the Applicant:
Mr M Thompson of Thompson
Attorneys
For
the Respondent:
Mr S Jamieson of Cliffe Dekker Hofmeyr Inc
[1]
[2014]
1 BLLR 1
(CC) at para 22
[2]
66
of 1995 as amended
[3]
2015
(4) BCLR 377
(CC) at para 29
[4]
[1984] ZASCA 51
;
1984 (3) SA 623
(A)