J2085/00-mc
Sneller Verbatim/mc
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J2085/00
2001-10-11
In the matter between
NUMSA Applicant
and
CONSOLIDATED METALLURGICAL INDUSTRIES Respondent
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J U D G M E N T
__________________________________________________________
LANDMAN J: Ten individual applicants who were members of NUMSA were
selected for retrenchment on the basis of merit or the lack of merit by the
Consolidated Wire Metallurgical Industries Limited (Extra SA (Pty) Limited) their
employer. They were advised that should they not accept voluntary severance
packages they would be placed in a labour pool and ultimately be retrenched
compulsory. They were also advised that their positions were redundant. No prior
notice was given to them and no consultations were held with NUMSA.
It is alleged that faced with these alternatives, the individuals accepted the
inevitability of their retrenchment and volunteered for this and therefore resigned
and were retrenched with effect from 30 October 1998.
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JUDGMENT1
Subsequently they discovered that their positions were being advertised.
Initially the employer denied that such an advert had been placed, but later
admitted that this was the case.
Thereafter a dispute was referred to the Metal and Engineering Industries
Bargaining Council for conciliation. This referral took place on 1 December 1998.
The dispute remained unresolved. On 17 February 1999 a certificate of outcome
was issued which indicated that the dispute had not been resolved.
NUMSA then referred the dispute to the CCMA for arbitration as the
Bargaining Council was not permitted to arbitrate such dispute. The referral took
place on 11 March 1999, well within the time period provided for in the Labour
Relations Act 66 of 1995. In its referral, NUMSA allege that the dismissals were
constructive dismissals and that the individual applicants were coerced into
accepting voluntary retrenchment.
The CCMA convened an arbitration meeting on 1 June 1999. At that meeting
the employer objected to the jurisdiction of the CCMA on the basis that the referral
to the Bargaining Council had been made late. The CCMA found this to be a good
argument and said that it would wait for an application for condonation. No formal
ruling was made but later inquiries elicited a formal finding by the ar bitrator
requiring NUMSA to make a formal application for condo nation. This application
was to be made to the CCMA and not to the Bargaining Council.
On 1 November NUMSA applied for condonation and in February 2000 it was
advised that the case had been closed. Subsequently a ruling was handed down.
NUMSA's regional legal unit took over the matter and decided that the
matter involved retrenchment, that the CCMA did not have jurisdiction to deal with
it, and that the matter should be referred to the Labour Court.
An application for condonation for the late referral to the Labour Court was
J2085/00-mc
made to this court on 22 June 2000. However the statement of case in respect of
which condonation was sought, was not filed with the application. The statement
of case was filed together with the replying affidavit some months later. The
replying affidavit itself was out of time. No application for condonation was made
for the late filing of that affidavit.
It was submitted that the requirements for condonation are met. A dispute
was timeously referred to the CCMA for arbitration. But because of the employer's
inappropriate objection and the CCMA's incorrect response, there were delays.
Otherwise this matter would have been decided by the CCMA in June 1999. Well,
this may be so, but in regard to the present matter where the cause of action is
said to be retrenchment and the matter has been referred to this court, the prior
history is relevant only to show that the dispute was kept alive and it is
tangentially relevant to the long period which it has taken NUMSA to file the
statement of claim.
Mr Schottler who appeared on behalf of the employer, sub mitted that the
statement was 730 days late. It was submitted on behalf of NUMSA that there was
strong prospects of success. Having regard to the facts which had been set out
above, I come to the conclusion that the applicants are not without prospects of
success. Insofar as the importance of the case is concerned, the case, as is
every case, is important to the applicants. The case is marginally of importance to
other litigants. I say this because the matter regarding the selection of employees
for voluntary retrenchment has al ready been dealt with in at least one other
decision of this court and therefore the matter is not res nova.
In my opinion the delay is considerable. The negligent conduct of the Union
is serious. I do not know what the individual appli cants have done to prod the
Union to look after their interest. There is no affidavit filed by them. I presume
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JUDGMENT3
that they elected to let the Union to look after their case.
However, the circumstances of this case is such that I cannot look to their
interests and overlook the conduct of their representative. Although the prospects
of success are not unfavourable, so much so that one could say that there is a
reasonable prospect of success, I have a discretion to exercise in regard to all
these matters, taking into account the possibility of prejudice to the respondents.
The difficulty that this court would have should the matter even tually come
to trial, which would probably be at least six months to a year hereafter, would
compound the difficulties for both the parties, particularly the respondent. I am of
the opinion that the application for condonation should be refused.
The application is accordingly dismissed and the first applicant only, is
ordered to pay the respondent's costs.
______________________
A A Landman
Judge of the Labour Court of South Africa
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