Brief Summary

Labour Law — Automatically unfair dismissal — Protected disclosure — Applicant claimed dismissal was in retaliation for reporting financial irregularities — Respondent contended that the statement of case was delivered out of time and sought condonation for late heads of argument — Court found that both parties had delivered documents late but granted condonation for the respondent's late submission — Applicant's affidavits were also deemed valid despite technical deficiencies — Court ruled that the applicant needed to apply for condonation due to late referral of the dispute to the CCMA, and assessed the merits of the condonation application, ultimately finding that the applicant had not adequately explained the delay or demonstrated strong prospects of success.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an interlocutory proceeding in the Labour Court concerning an application for condonation for the late referral of a dispute to the Labour Court. The substantive dispute (not determined in this judgment) concerned a claim of automatically unfair dismissal on the basis that the applicant alleged he was dismissed for making a protected disclosure.

The parties were Mr James Evans (the applicant, self-represented) and the University of Cape Town (the respondent, represented by counsel instructed by attorneys). The applicant had been dismissed and pursued processes in the CCMA, thereafter filing a statement of case in the Labour Court. The respondent took the point that the Labour Court referral was out of time and that the Court therefore lacked jurisdiction absent condonation.

The procedural history relevant to this decision was that the applicant referred his dismissal dispute to the CCMA, obtained a certificate of outcome, then filed a statement of case in the Labour Court outside the applicable statutory time period. Although the applicant maintained that condonation was not required, he nevertheless brought a condonation application, which itself was also delivered only after the respondent had expressly raised lateness in its response.

The general subject-matter of the dispute was whether the applicant should be granted the indulgence of condonation in circumstances where the delay was lengthy, the explanation was contested in its adequacy, and the applicant relied on prospects of success in an automatically unfair dismissal claim linked to the Protected Disclosures Act 26 of 2000.

2. Material Facts

Certain background facts appearing from the statement of case (and identified by the Court as not disputed in the response) formed the context for evaluating prospects of success. The applicant had been employed as a part-time athletics coach by the respondent since 1993. During 2016 and 2017 he reported financial irregularities to employees of the respondent, including his line manager, implicating (among others) an employee in the sports department and a student. Early in 2017, he instituted grievance proceedings against particular employees within the respondent’s structures.

In November 2017, the applicant launched an application for an interdict against the respondent in terms of the Protected Disclosures Act 26 of 2000. In January 2018, the respondent instituted disciplinary action against the applicant, relying on approximately 40 incidents, including allegations involving the individuals implicated in the applicant’s earlier reports and grievances. The applicant was summarily dismissed on 26 April 2018.

The facts bearing directly on the lateness and the condonation enquiry were gleaned from the affidavits in the condonation application. The applicant referred a dismissal dispute to the CCMA on or about 26 April 2018, characterising his dismissal as retaliation for reporting corruption and as automatically unfair. A certificate of outcome was issued on 16 May 2018, recording (in substance) that the applicant believed his dismissal was linked to reporting fraudulent activities and that he had decided the CCMA should arbitrate the dispute as a “pure dismissal dispute” and not (as recorded by the commissioner) within section 187(1)(h). The Court did not accept that this necessarily meant the applicant had abandoned the automatically unfair dismissal cause of action; on the papers it appeared the applicant attempted to keep both avenues alive.

On or about 18 May 2018, the applicant completed a request for arbitration in which he nevertheless stated that the dismissal was “also” automatically unfair. The Court regarded the applicant’s explanation for proceeding to arbitration as not convincing, although it considered that little turned on this point for the condonation application.

By 9 July 2018, the applicant expressed concern (by email to the respondent) that the matter should be referred to the Labour Court, in circumstances suggesting he was concerned about CCMA jurisdiction. On 20 July 2018, the CCMA ruled that the respondent was entitled to legal representation.

The applicant delivered his Labour Court statement of case (for automatically unfair dismissal) on 21 August 2018. The respondent, in its response dated 4 September 2018, expressly raised that the referral was late and that the Labour Court lacked jurisdiction absent condonation. Despite that express warning, the applicant served the condonation application only on 28 November 2018 (with filing later recorded in the judgment).

As to disputes of fact relevant to the merits, the respondent asserted (in broad terms) that the dismissal was for incompatibility and misconduct, whereas the applicant asserted it was due to protected disclosures. For purposes of the condonation enquiry, the Court treated the applicant’s allegations (supported by the undisputed chronology of disclosures, PDA litigation, discipline, and dismissal) as sufficient to raise a credible possibility of an automatically unfair dismissal, particularly given the respondent’s lack of factual detail in support of its stated reasons.

3. Legal Issues

The central legal questions for determination were, first, whether condonation was required for the late referral of the statement of case to the Labour Court, having regard to the operation of the 90-day period in the Labour Relations Act 66 of 1995 following certification that the dispute remained unresolved.

Second, if condonation was required, the Court had to determine whether condonation should be granted, applying the established condonation discretion (including the length of delay, explanation, prospects of success, prejudice, and the interests of justice). Within that overarching enquiry, the Court identified specific sub-questions, namely the impact of not bringing condonation as soon as the default became known, the adequacy of the explanation for the entire period of delay, what material must be placed before the Court to demonstrate prospects of success, and whether prejudice favoured either party.

The dispute predominantly concerned the application of established legal principles to the facts (a discretionary/value judgment), rather than the determination of the merits of the dismissal claim. However, the assessment of prospects of success required a preliminary evaluative view of whether, on the pleaded and affidavit material, there was a credible basis for an automatically unfair dismissal claim linked to protected disclosures.

4. Court’s Reasoning

The Court first disposed of preliminary procedural skirmishes. It condoned the respondent’s late filing of heads of argument (two court days late) because the error arose from using calendar days instead of court days and there was no prejudice. The Court also rejected the applicant’s objection to the respondent’s affidavits on the basis that they were commissioned by employees of the respondent, pointing out non-compliance concerns with the applicant’s own affidavits and concluding that the relevant prescripts regarding commissioning were directory rather than peremptory, thus admitting all affidavits for consideration.

On whether condonation was required, the Court rejected the applicant’s interpretation of section 191 time periods. It held that the referral was made outside the 90-day period contemplated after the commissioner certified the dispute unresolved, and that condonation was therefore necessary. The Court noted that the applicant preferred his own interpretation without checking decided authority, notwithstanding that section 191(11) clearly required referral within 90 days after certification.

Turning to the principles governing condonation, the Court emphasised that condonation must be sought as soon as a party becomes aware of the default, relying on authority that endorses promptness and, in labour litigation, even bringing the application on the same day the need for condonation is discovered. Applying that principle, the Court treated the relevant delay as encompassing not only the initial late referral but also the further period after the respondent expressly raised lateness in the response. Because the applicant delayed for approximately 15 weeks after being alerted, the Court held he had to explain the entire period, which required a good explanation and/or strong prospects.

As to the explanation, the Court accepted that the initial short period of default was attributable to an incorrect interpretation of the statutory provisions and regarded that as acceptable in itself. The Court was, however, critical of the absence of an explanation for why the applicant did not heed the respondent’s explicit warning that condonation was necessary for jurisdiction. The remainder of the explanation—that the applicant devoted substantial time to preparing other litigation and attempting to secure pre-trial participation—was accepted in general terms, but the Court found it inadequately particularised (for example, lacking detail as to time allocation and why an eight-page affidavit could not be prepared earlier). The Court inferred that the applicant probably delayed because he maintained the view that condonation was unnecessary, and it characterised this as not entirely acceptable but also not mala fide.

On prospects of success, the Court distilled the enquiry to the core basis advanced: the alleged automatically unfair dismissal due to a protected disclosure. It rejected as unmeritorious a contention that the ground for dismissal was not recognised by the LRA and regarded procedural unfairness issues as not warranting focus at this stage if the dismissal was not automatically unfair. The Court then addressed what must be placed before a court in a condonation application to establish prospects. Relying on authority, it held that it is permissible to incorporate other pleadings by reference, and that an applicant must at least set out averments constituting a prima facie basis for relief—facts which, if proven at trial, would entitle success—without having to fully canvass the merits or prove probabilities on affidavit.

Applying those standards, the Court considered that the applicant’s chronology—protected disclosures in 2016–2017, a PDA interdict application in November 2017, disciplinary action in January 2018 with issues related to the disclosures serving before the chairperson, and dismissal in April 2018—was sufficient to raise a credible possibility that the dismissal was linked to protected disclosures. The respondent’s opposing stance was essentially a bare assertion that dismissal was for incompatibility and misconduct, without supporting factual detail. In that context, the Court invoked the approach to evidentiary burdens in automatically unfair dismissal cases: the employee bears an evidential burden to raise a credible possibility of an automatically unfair reason, whereafter the employer must produce evidence showing a permissible reason. On the papers, the Court concluded that the applicant had met the initial evidential threshold and that the respondent had not, in the condonation papers, discharged the obligation to produce supporting facts for its stated reason. The Court therefore found that the applicant had shown reasonable prospects of success.

On prejudice, the Court treated prejudice as neutral. The applicant would suffer the typical prejudice of being shut out of court if condonation were refused. The respondent relied on the cost and effort of defending the matter in the CCMA and the Labour Court, but the Court did not regard this as carrying significant weight in the condonation calculus.

Finally, balancing the factors in accordance with the classic condonation test, the Court held that although the delay (considering both the late statement of case and the late condonation application) was quite long, longer delays had been condoned; the explanation was not totally unacceptable; prospects were reasonable; prejudice was neutral; and the administration of justice had not been materially affected because the trial was unlikely to be significantly delayed by granting condonation.

5. Outcome and Relief

The Labour Court granted condonation for the applicant’s late referral. It further directed the Registrar to enrol the matter for trial on an expedited basis.

No costs order was recorded in the order made.

Cases Cited

Seatlolo and Others v Entertainment Logistics Service (A Division of Gallo Africa Ltd) (2011) 32 ILJ 2206 (LC).

Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A).

Napier v Tsaperas 1995 (2) SA 665 (A).

Allround Tooling (Pty) Ltd v National Union of Metalworkers of South Africa and Others [1998] 8 BLLR 847 (LAC).

National Education Health and Allied Workers Union v Nyembezi [1999] 5 BLLR 463 (LAC).

Librapac CC v Federation of Civil Engineering Contractors and Others (1999) 20 ILJ 1510 (LAC); [1999] 6 BLLR 540 (LAC).

Nature’s Choice Products (Pty) Ltd v Food and Allied Workers Union and Others (2014) 35 ILJ 1512 (LAC).

Mould v Roopa NO and Others (2002) 23 ILJ 2076 (LC).

Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (O).

Brown v Chapman 1938 TPD 320.

Kroukam v SA Airlink (Pty) Ltd (2005) 26 ILJ 2153 (LAC).

Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A).

Legislation Cited

Protected Disclosures Act 26 of 2000 (as amended).

Labour Relations Act 66 of 1995 (as amended), including section 191 and section 187.

Rules of Court Cited

Rule 27 of the High Court Rules (as referenced in the judgment in relation to principles applicable to condonation).

Rule 43 (rescission provision referred to in Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (O), as quoted in the judgment).

Held

Condonation was required because the referral to the Labour Court was outside the statutory 90-day period running from the date the CCMA certified the dispute unresolved. The applicant’s delay in bringing condonation, including the period after being alerted by the respondent, required explanation for the full period and weighed against him, but was not treated as mala fide.

On a conspectus of factors, the Court held that the explanation was not wholly unacceptable, the applicant established reasonable prospects of success on the automatically unfair dismissal claim (by raising a credible possibility that dismissal was linked to protected disclosures), prejudice did not favour either party, and the interests of justice supported granting condonation. The application for condonation was therefore granted, and the matter was directed to be enrolled for trial on an expedited basis.

LEGAL PRINCIPLES

Condonation in labour litigation is a discretionary indulgence assessed on a holistic weighing of factors, classically including the length of the delay, the explanation for the delay, prospects of success, prejudice, and the broader interests of justice, as articulated in the established test in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A).

A party seeking condonation should bring the application as soon as the default becomes known. Where a party delays further after being alerted to the need for condonation, that additional period forms part of the delay requiring explanation, and inadequate promptness may materially weaken the application.

In demonstrating prospects of success for condonation purposes, an applicant must place sufficient factual material before the Court to show a prima facie case: averments which, if established at trial, would entitle the applicant to the relief sought. The applicant need not prove the probabilities on affidavit, but cannot remain silent or merely assert good prospects without a factual foundation. Incorporation by reference to pleadings may be permissible where it provides the necessary factual content.

In automatically unfair dismissal matters, an employee bears an initial evidential burden to produce material sufficient to raise a credible possibility that an automatically unfair reason was the reason for dismissal. Once that threshold is met, the employer is required to produce evidence to show that the dismissal reason did not fall within the prohibited category contemplated by section 187 of the Labour Relations Act 66 of 1995.

Evans v University of Cape Town (C828/2018) [2019] ZALCCT 7 (13 March 2019)