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[2019] ZALCJHB 307
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Jansen Vuuren v Land and Agricultural Development Bank of South Africa and Another (JS701/16) [2019] ZALCJHB 307 (31 October 2019)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JS701/16
In
the matter between
:
PIERRE-
JAQCE JANSEN VUUREN
Applicant
And
THE LAND AND
AGRICUTURAL DEVELOPMENT
BANK
OF SOUTH AFRICA
First Respondent
SAKHUMZI
DIZA
Second Respondent
Heard:
18 October 2019
Delivered:
31 October 2019
JUDGMENT
LALLIE.
J
[1]
The applicant was employed by the first respondent as a senior
manager. Pursuant to
the termination of the employment relationship
he filed a statement of claim seeking relief based on the manner in
which his contact
of employment was terminated. Part of the relief he
is seeking is an order declaring his dismissal related to the alleged
operational
requirements substantively and procedurally unfair.
[2]
After the first respondent had filed its response to the statement of
claim and the
parties had held a pre-trial conference, the first
respondent sought leave to amend its response to the statement of
claim by adding
a second special plea. In which the first respondent
responds to the applicant's claim that his dismissal for operational
requirements
of the respondent was procedurally unfair. The first
respondent submitted that this Court lacks jurisdiction to adjudicate
the
applicant's claim based on the alleged procedural fairness of his
dismissal for operational requirements as he should have sought
relief for that claim before the dismissal as envisaged in section
189A(13) of the Labour Relations Act
[1]
(the LRA). Section 189A (18) of the LRA expressly precludes this
Court from adjudicating a dispute about procedural fairness of
a
dismissal based on operational requirements referred in terms of
section 191(5) (b) (ii) of the LRA.
[3]
The first respondent opposed the proposed amendment on the grounds
that it does not
disclose a defence to the applicant's claim. He
submitted that the remedy in section 189A (13) was not available to
him and does
not constitute a bar to the proceedings.
[4]
When the application was argued the first respondent conceded that
the claim based
on the alleged procedural unfairness of the
applicant's dismissal for operational requirements falls outside the
jurisdiction of
this Court. The first respondent justified making the
allegations by arguing that some acts of procedural unfairness of a
dismissal
for operational requirements are inextricably linked to its
substantive fairness and others have the effect of rendering the
dismissal
substantively unfair. Based on the concession made by the
first respondent and the correctness of the legal basis of the second
special plea, it must be upheld.
[5]
The first respondent sought a costs order
de bonis propriis
against the applicant's attorneys on the grounds that it asked
them, in a lot of correspondence with its attorney to clarify his
position on the issue addressed in this application. The first
respondent further submitted that had the applicant made the
concession
he made in court on time, the application at hand would
have been avoided. Counsel for the applicant opposed the grant of a
costs
order particularly because the applicant’s attorneys were
not warned beforehand that the order would be sought and placed
in a
position to defend themselves.
[6]
The first respondent's notice of intention to amend is silent on
costs. Section 162(1)
of the LRA provides that this Court may make
costs orders according to the requirements of the law and fairness.
When the applicant
served his statement of claim on the first
respondent it contained the allegations of the procedural unfairness
of his dismissal
for operational requirements. The first respondent
had the right to raise the second special plea in its statement of
defence without
the applicant's approval or consent. The first
respondent overlooked the need to file the second special plea and
realised the
need to file it later. Had the first respondent taken
the decision to file the second special plea when the need first
arose, the
application at hand would have been avoided. Fairness
requires that the first respondent take responsibility for its
omission.
A costs order is, in the circumstances not justified.
[7]
In the premises the following
order is made.
Order
The
application for leave to amend the first respondent's response to
the applicant’s statement of claim is granted.
There
is no order as to costs.
Z.
Lallie
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Mr M. Chavoos of Norton
Rose Fulbright Inc SA
For
the Respondent:
Advocate P. Ellis SC
Instructed
by:
Jordan Inc.
[1]
Act 66 of 1996 as amended