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[2020] ZALCJHB 25
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Chetty v Baker Mckenzie (JS1107/18) [2020] ZALCJHB 25 (4 February 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JS1107/18
In
the matter between:
VANIMALA
CHETTY
Applicant
And
BAKER
MCKENZIE
Respondent
Date
heard: 29 December 2018
Delivered:
04 February 2020
JUDGMENT
CONRADIE,
AJ
[1]
The applicant (Chetty) is an attorney and former partner at the
respondent (Baker McKenzie).
[2]
She resigned from Baker McKenzie on 16 September 2017 and alleged
that her resignation was
in fact a constructive dismissal.
[3]
She referred two disputes to this court. In the one she seeks
an order that her dismissal
was automatically unfair in terms of
section 187(1)(f) of the Labour Relations Act 66 of 1995 (the LRA).
In the other she
seeks an order that she was discriminated against by
Baker McKenzie as contemplated in section 6(1) of the Employment
Equity Act
55 of 1998 (EEA) based on her race and gender.
[4]
The automatically unfair dismissal dispute is late by some 11 months
and requires condonation.
Baker McKenzie opposes the
application for condonation.
[5]
In my view, Chetty has not put up a reasonable and acceptable
explanation for the delay
and I have decided not to grant her
condonation. This judgment therefore only deals with Chetty’s
explanation for the
delay and Baker McKenzie’s response.
Chetty’s
explanation for the delay
[6]
Chetty provided the following explanation for the late filing of her
automatically unfair
dismissal claim:
6.1
She resigned on 16 September 201
7.
6.2
On 16 October 2017
she
referred an unfair
dismissal (constructive dismissal) dispute
to the
CCMA
.
6.3
On 14 November 2017 the
CCMA issued a certificate
of non-resolution.
6.4
The matter was referred to arbitration on
8
February 2018 and was set down for 7 May 2018, but was
subsequently
postponed by agreement.
6.5
The arbitration was set to resume on 20 and 21
June 2018. In preparation for the arbitration it became
apparent to her attorneys
at the time, Hoosen Wadiwala Inc (HWI),
that there was an inextricable nexus between the allegations of
discrimination based on
race and gender and her constructive
dismissal dispute. Prior to this, the unfair dismissal dispute
was pursued on the basis
of “reasons unknown”.
6.6
She was advised that she could not pursue any case of unfair
discrimination
if such a case had not been referred to the CCMA.
Because of this, and with a view to further exploring the possibility
of
settlement, t
he arbitration did not proceed on
20 and 21 June but was postponed by agreement.
6.7
The arbitration was subsequently set down for 31
July 2018.
6.8
The settlement did not
materialize and on 27 July 2018 she referred an additional dispute to
the CCMA in terms of the EEA, alleging
that she was discriminated
against. In her referral, she stated that the dispute arose on
26 April 2018.
6.9
As the EEA discrimination
dispute was late, she applied to the CCMA for condonation. She
did this on 16 August 2018 and at
the same time applied to have the
EEA discrimination dispute consolidated with the constructive
dismissal dispute.
6.10
On 7 September 2018 the CCMA granted
condonation for the late referral of the EEA discrimination dispute
but refused to consolidate
the dispute with the constructive
dismissal dispute.
6.11
On 1 October 2018 the unfair discrimination dispute was conciliated
and a certificate of non-resolution
was issued.
6.12
She was advised that a discrimination dispute and any dismissal
dispute based on discrimination
had to be referred to the Labour
Court for adjudication. She was “then” referred to
Sean Snyman (Snyman) who
advised her that her constructive dismissal
case was founded on the same allegations of discrimination based on
race and gender.
The discrimination was not only a
contravention of the EEA but also the very issue that rendered her
continued employment intolerable.
As such the constructive
dismissal would be an automatically unfair dismissal dispute as
contemplated by section 187(1)(f) of the
LRA and had to be referred
to the Labour Court.
6.13
She was also advised by Snyman that if the constructive dismissal
dispute was to be arbitrated
in the CCMA and if she were to raise
discrimination as it’s basis, the CCMA would lack the
jurisdiction to entertain the
matter. It was apparent to her
that she needed to refer both disputes to the Labour Court.
6.14
As the certificate of outcome in respect of the unfair discrimination
dispute was issued on 1
October 2018 she had until 30 December 2018
to refer this dispute to the Labour Court.
6.15
A statement of case covering both the
automatically
unfair dismissal and the EEA discrimination dispute
was prepared. She claims that it was served and filed on
21 December 2018.
6.16
As Snyman was acting as a Judge in the Labour Court, he was only
available after 14 December
2018 to assist in the finalisation of her
statement of case. In addition to this, the parties were
exploring settlement in
the matter from time to time between June and
November 2018.
Baker
McKenzie’s Response
[7]
Baker McKenzie’s response can be summarised as follows:
7.1
On 16 September 2017, the same day Chetty resigned, it received a
letter from
Chetty’s attorneys at the time, HWI, which
contained the following allegations relating to discrimination:
“
24.6
Regarding the BM Article 11 equity partner evaluation process, our
Client has the impression that the standards and process
applied to
evaluation of Messrs van der Merwe and Du Plessis were different to
and less onerous than those that applied to her
and the refusal to
support a 12 month deferral (usually a formality in the past) seems
both unfair, discriminatory, and part of
a process of victimisation”.
“
24.7 It has
become apparent that our Client has presented both a significant
challenge as well as a threat to the white male leadership
in BMSA by
refusing either to agree or be complicit in decisions of which she is
not supportive as she believed these to be detrimental
to the best
interests of BMSA”.
“
24.8 The
conduct perpetrated against her ignores the key BM values of
promoting racial and gender diversity, inclusion and transformation
and is in fact discriminatory, which leaves our Client to believe
that BM has misinterpreted South African constitutional values
in
similar vein as was evidence in the publicised Bell Pottinger saga”.
“
34 Our client
similarly reserves her rights formally to engage both with the Black
Lawyers Forum as well as the South African Human
Rights and Gender
Commissions regarding the discriminatory manner in which she has been
victimised and mistreated
.
“
37 Our Client
is of the view that the action taken against her is extremely unfair,
discriminatory, highly prejudicial reputationally
and has caused an
irretrievable breakdown in the working relationship”.
7.2
In her condonation application at the CCMA, Chetty alleged that it
had become
apparent to her attorneys that there was an “
inextricable
nexus
” between the allegations of discrimination based on
race and gender and her constructive dismissal dispute. To this
she added that she had a consultation with her attorneys three months
earlier in March 2018 where she was informed that her exit
was
“
maliciously motivated on the basis of race as well as
gender”
and this was later highlighted in a letter to Baker
McKenzie. This proved that Chetty was aware, at the outset,
that she
could have referred the automatically unfair dismissal
dispute to the Labour Court.
7.3
Chetty’s unfair discrimination dispute stated that the
dispute arose
on 26 April 2018.
7.4
Chetty’s statement of case was only served and filed on 7
January 2019
and not on 21 December 2018 as claimed by Chetty.
7.5
There was a significant delay between the filing of the statement of
case and
the subsequent application for condonation for the late
filing on 1 March 2019.
7.6
In the condonation ruling of 7 September 2018,
Chetty was once again alerted to the fact that the unfair dismissal
dispute should
be referred to the Labour Court if she were to allege
the reasons were due to discrimination, as the CCMA would then lack
jurisdiction
to entertain the matter.
7.7
Chetty’s reliance on the fact that her new attorney, Snyman,
was unavailable
till 14 December 2018 is no excuse. She could
simply have sought the assistance from another available attorney
from the
same “
law firm and consultancy with multiple
practitioners”
. There is no explanation for her not
doing so.
7.8
Although sporadic settlement discussions took place between June 2018
and November
2018, this was not an overriding or acceptable
explanation for Chetty’s failure to refer the matter to the
Labour Court since
the settlement discussions were a parallel process
and did not affect the referral process.
7.9
In the same vein, on 20 November 2018 it sent Chetty a without
prejudice letter
informing her that the settlement attempts did not
affect any time periods in respect of claims. Additionally, it
raised
the same point in its opposing affidavit in the application
for condonation for the late filing of the discrimination dispute in
the CCMA.
Analysis
[8]
Whether I accept Chetty’s date or that of Baker McKenzie in
respect of when the automatically
unfair dismissal dispute was
delivered to this court does not really matter. On either
version the delay is more than 11
months, which is excessive.
[9]
It is clear from the letter from HWI to Baker McKenzie dated 16
September 2017 that Chetty
was of the view that she was the victim of
discrimination.
[10]
Even though discrimination was not the sole cause for Chetty’s
complaint it loomed large. Yet
she proceeded to refer an
ordinary constructive dismissal dispute on 16 October 2017 and only
pursued an unfair discrimination dispute on
27
July 2018. In my view, Chetty did not require legal
advice to tell her that she was the alleged victim of unfair
discrimination. As early as 16 September 2017 she had a clear
sense that she was discriminated against. This is a matter
of
fact and not law. The role of her attorneys would have been to
advise her on whether or not what she experienced amounted
to
discrimination in the legal sense and what legal options were
available to her in order to seek redress.
[11]
In addition to Chetty being aware of potential discrimination and not
requiring legal advice to tell her
this, I find it highly unlikely
that HWI would not have discussed a discrimination based claim with
her and the legal requirements
for such a claim. It is apparent
from the 16 September letter that HWI had detailed instructions from
Chetty. The letter
is 11 pages long and meticulously details
the circumstances in which Chetty joined Baker McKenzie, her
commitment to the values
of the firm, her contribution to growing the
firm in the area of competition law, the circumstances surrounding
the “administrative
leave”, the attempts to “exit”
her, the threatened disciplinary process and of course the
overarching complaint
of discrimination. The letter is not the
product of an inexperienced labour lawyer. In fact, it is not
in dispute on
the papers that Mr Wadiwala of HWI is as an experienced
labour lawyer who would have knowledge and experience of the
appropriate
forums and procedures for the hearing of labour
disputes.
[12]
It is telling that Chetty at no point deals with the termination of
HWI’s mandate and the reasons for
the termination. We
know that it was HWI that advised Chetty, in preparation for the
arbitration which was scheduled for
7 May 2018, of the inextricable
link between her allegations of discrimination based on race and
gender and her constructive dismissal.
This advice must have
given rise to the decision to refer the unfair discrimination dispute
to the CCMA which happened on 27 July
2018 along with a condonation
application. The referral was done by HWI. After
condonation was granted the unfair discrimination
dispute was
subjected to conciliation on 1 October 2018. HWI seems to
disappear somewhere around this point because the next
thing that
Chetty says in her papers is that she was advised that an unfair
discrimination dispute had to be referred to the Labour
Court.
The origin of the advice and when it was received is not disclosed
although she says that she was “then”
referred to Snyman
for assistance.
[13]
According to Chetty, “
Following consultation with Snyman, he
advised me, which advice I accepted, that my constructive dismissal
case was founded on the
same allegations of discrimination based on
race and gender. In simple terms, the discrimination was not
only a contravention
of the EEA, but was also the very issue that
rendered my continued employment to be intolerable”
.
Two things stand out for me. Firstly, Chetty does not tell us
when she consulted Snyman. Baker McKenzie alludes
to this in
its answering papers, but Chetty still does not clarify this in her
replying papers. Secondly, the advice from
Snyman quoted above
is the exact advice which HWI gave her in the lead up to the 7 May
2018 arbitration.
[14]
The only date which Chetty does give us in respect of Snyman is 14
December 2018 which is when his acting
stint in this court ended.
It was only after this date that he could assist her with the final
completion of the statement
of claim which was filed within a week
thereafter. The words “final completion” are
noteworthy. Does it
mean that Snyman worked on the statement of
case prior to the commencement of his acting term? If so, the
date of the consultation
or consultations with Snyman are once again
important, as well as the date on which he commenced his acting
term. Does it
mean that someone else prepared a draft statement
of case for Snyman to settle? As Baker McKenzie has argued,
Snyman is part
of a large firm and someone else in the firm could
have assisted Chetty. In any event, an appropriate counsel
could have
been briefed by Snyman’s firm or another firm of
attorneys could have been approached. However, for reasons that
have
not been provided, Chetty chose to wait for Snyman.
[15]
It should also be mentioned, although the decision which I have
reached does not depend on it, that Chetty
is an attorney and
although her area of expertise is not labour law she must have
appreciated the need to refer her automatically
unfair dismissal
dispute to this court without delay given the circumstances. In
addition to this, one would have expected
Chetty to have been even
more diligent on the issue of condonation, given that shortly before
approaching this court she had to
apply for condonation in the CCMA,
which was opposed, for the late referral of the unfair discrimination
dispute.
[16]
The delay in bringing this condonation application is also cause for
concern. This delay was occasioned
by Snyman’s
non-availability as he was on leave and his desire to amend the
statement of case. He returned from leave
on 21 January 2019
and the amended statement of case and condonation application was
only filed on 1 March 2019. I can see
no reason why the
condonation application was not submitted along with the original
statement of case. The fact that there
was an intention to
amend the statement of case is no justification for not timeously
bringing the condonation application.
Nothing in the
condonation application was dependant on the contents of the amended
of statement of case.
[17]
The settlement negotiations between June 2018 and November 2018 are
also not of assistance to Chetty.
Settlement negotiations are a
parallel process and are by their very nature uncertain. There
is no guarantee that parties
will settle. Time limits
prescribed by the LRA are not simply overridden on the basis that
there are settlement discussions.
In any event, Chetty herself
stated in her affidavit of 15 August 2018, in support of her
condonation application for the late
referral of her unfair
discrimination dispute to the CCMA, that she “
realised that
settlement was not a serious prospect in the near future.
”
[18]
Everything said and done, although Chetty knew prior to 7 May 2018
that the constructive dismissal dispute
was founded on allegations of
race and gender discrimination she chose to only file her
automatically unfair dismissal dispute
at the end of December 2018 or
beginning of January 2019 on the respective versions. She has
failed to put up a reasonable
and acceptable explanation for this.
[19]
While there are
numerous cases dealing with condonation, the following cases are
particularly appropriate to the current case.:
a.
In
Collett
v Commission for Conciliation, Mediation & Arbitration
[1]
the
LAC stated that:
“
There
are overwhelming precedents in this court, the Supreme Court of
Appeal and the Constitutional Court for the proposition that
where
there is a flagrant or gross failure to comply with the rules of
court, condonation may be refused without considering the
prospects
of success. In NUM v Council for Mineral Technology
(1999)
3 BLLR 209
(LAC)
at para 10, it was pointed out that in considering whether good cause
has been shown the well-known approach adopted in Melane
v Santam
Insurance Co Ltd
1962
(4) SA 531
(A)
at 532 C-D... should be followed but:
‘
There
is a further principle which is applied and that is without a
reasonable and acceptable explanation for the delay, the prospects
of
success are immaterial, and without good prospects of success, no
matter how good the explanation for the delay, an application
for
condonation should be refused.’
The
submission that the court a quo had to consider the prospects of
success irrespective of the unsatisfactory and unacceptable
explanation for the gross and flagrant disregard of the rules is
without merit.”
[2]
b.
“
In eThekwini
Municipality v IngonyamaTrust
[3]
,
the court said the following where the explanation furnished did not
cover the entire period and part of the delay was unexplained:
As
stated earlier, two factors assume importance in determining whether
condonation should be granted in this case. They are
the
explanation furnished for the delay and prospects of success. In a
proper case these factors may tip the scale against the
granting of
condonation. In a case where the delay is not a short one, the
explanation given must not only be satisfactory but
must also cover
the entire period of the delay. Thus in Van Wyk v Unitas
Hospital and Another (Open Democratic Advice Centre
as Amicus
Curiae), this Court said in this regard:
“
An
applicant for condonation must give a full explanation for the delay.
In addition, the explanation must cover the entire period
of delay.
And, what is more, the explanation given must be reasonable...”
[4]
“
Strictly,
according to the applicable authorities, in the absence of a
satisfactory explanation for an unreasonable delay,
it is not
necessary for the court to embark on an inquiry into the prospects of
success. (See Collett v Commission for Conciliation,
Mediation &
Arbitration (supra)”.
[5]
[20]
In the circumstances, the condonation application must fail.
Order
1. The
condonation application is dismissed.
2. There is
no order as to costs.
_________________
BN Conradie
Acting Judge of the
Labour Court of South Africa
Appearances:
Applicant:
RJC Orten of Snyman Attorneys
Respondent:
A Redding SC
Instructed
by: Adams & Adams
[1]
[2014]
6
BLLR
523 (LAC).
[2]
At
para 6.
[3]
2013
(5)
BCLR
497
(CC)
at para 28.
[4]
At
para 11.
[5]
At
para 12.