Sneller Verbatim/HVDM
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JS214/01
2003-03-25
In the matter between
NEHAWU
obo MOFEKENG AND OTHERS Applicant
and
CHARLOTTE THERON CHILDREN'S HOME Respondent
_______________________________________________________________
_
J U D G M E N T
_______________________________________________________________
_
BARRIE, A J:
[1] The respondent in this matter is a children's home in
Bethlehem, Free State Province. The second, third and fourth
applicants ("the individual applicants") used to be employed by the
respondent as cleaners. Their services were terminated for
operational reasons in 1999. There is a dispute about when exactly
that occurred. According to the applicants it occurred on
29 November 1999. According to the respondent it only gave notice
of termination of the individual applicants' services on 1 December
1999.
[2] The first respondent ("the union") referred a dispute to the
Commission for Conciliation, Mediation and Arbitration ("the CCMA")
for conciliation. The dispute that was referred was connected to the
dismissal of the individual applicants. On the papers before me,
however, the dispute that was referred did not relate to dismissal
but to a claim made by the union that, in not agreeing to the
individual applicants being trained as housemothers for children in
the children's home the respondent had unfairly discriminated
against them on racial grounds.
[3] It is not apparent on the papers exactly when the dispute was
referred. According to the respondent it happened on 30 November
1999 in terms of a document dated 29 November 1999. However,
the "Certificate of outcome of dispute referred to conciliation" that
the CCMA subsequently issued on 17 July 2000 states that the
dispute was referred on 9 December 2000. Even at that stage i.e. in
July 2000 when the certificate was issued the dispute was still
described as a dispute concerning "unfair discrimination i.t.o. SCH 7,
item 2(1)", no doubt referring to the residual unfair labour practices
that were referred to in schedule 7 to the Labour Relations Act 66 of
1995 ("the LRA"), prior to the enactment of the Employment Equity
Act 55 of 1998 and subsequent amendment of the LRA by Act 12 of
2002.
[4] A statement of claim was delivered to this court on behalf of
the applicants on 2 March 2001. In it the union on behalf of the
individual applicants referred a dispute regarding not only alleged
unfair discrimination to this court for adjudication, but also an unfair
dismissal dispute. Affidavits from the individual respondents, a
union organiser of the union in Phuthaditjhaba, and a legal officer of
the union accompanied the statement of claim. The affidavit of the
legal officer was presented under the heading "Condonation" and
was clearly intended to serve as the foundation for an application
for the condonation of the late referral of the dispute to this court.
[5] The respondent received the referral on 2 March 2001. It
delivered a statement of case to this court on 16 March 2001. The
statement of case was accompanied by a detailed affidavit from a
member of the respondent's management board.
member of the respondent's management board.
[6] In its statement of defence the respondent in limine raised
that the alleged unfair dismissal dispute that had been referred to
this court had never been referred to conciliation in terms of section
191(1) of the LRA. The point in limine raised a jurisdictional issue
(see National Union of Metal Workers of SA and Others v Driveline
Technologies (Pty) Ltd and Another 2000 21 ILJ 142 (LAC)).
[7] The respondent opposed the application for condonation with
reference to the issues that are usually primarily relevant in this
regard, i.e. the duration of the delay, the explanation for the delay
and the prospects of success.
[8] The matter was set down in the opposed motion court. It
served before me on Wednesday, 19 March 2003. In terms of the
heads of argument the parties intended to argue the point in limine
as well as the condonation application. I declined the hear the
former issue. Whether the dispute that was referred to and served
before the CCMA eventually encompassed a dismissal dispute is a
question of fact that should not necessarily be decided with
reference to the contents of the CCMA's certificate of outcome alone
(see the Driveline Technologies judgment paragraph 63 at page
158A-C of the reported judgment). It is a matter that has to be
determined by the trial court whether separately in limine, or
whether during the course of the trial. I accordingly heard
argument regarding the condonation application only.
[9] The case for condonation is made in the affidavit of the
union's legal officer. It is supported by the affidavits from the union
organiser in Phuthaditjhaba, in so far as that affidavit traverses the
merits of the dispute. Only the latter affidavit is confirmed by the
individual applicants in their affidavits. In other words the
explanation for the delay that has been put forward by the union's
legal officer is not confirmed under oath by either the union's
organiser in Phuthaditjhaba, or the individual applicants.
[10] In the affidavit of the union's legal officer he accepts that the
statement of case should have been delivered by 17 October 2000,
i.e. 90 days after the CCMA's certificate of non-resolution had been
issued. His explanation for the delay until 2 March 2001 is that:
"The applicants were scattered over an inaccessible places
after they were dismissed and it was difficult for me to consult
with them and get the proper instructions. The applicants,
with them and get the proper instructions. The applicants,
including their representative at the workplace were/are lay
persons in law and could not understand nor appreciate the
consequences of the delay."
[11] It is quite apparent from a letter dated 13 September 2000
that the union's Phuthaditjhaba's office sent to the union's legal
officer on that day that the legal officer operates out of the union's
Johannesburg office. The letter was annexed to the applicants'
founding papers. Arising from the contents of the letter one can
also conclude that it is highly likely that the union in Phuthaditjhaba
was in contact with the individual applicants at the time.
[12] The contents of the affidavit of the union's legal officer, as I
have stated, is not confirmed by the individual applicants or the
union organiser in their affidavits. The legal officer moreover does
not state on what basis he professes to have the knowledge that he
attests to in his affidavit. This applies not only to his explanation for
the delay, but also to his version of the merits of the dispute, which
is characterised by hyperbole.
[13] Mr Boda, who represented the applicants, readily and properly
conceded that the explanation for the delay was unsatisfactory.
However, he argued that I should not attach overriding importance
to it, in any event not to the exclusion of an assessment of the
applicants' prospects of success. Regarding the latter aspect he
argued that even on the respondent's own papers it is apparent that
the individual applicants' race played a role in the decision that they
were unsuitable to be trained as housemothers. He also pointed out
that the referral of the unfair discrimination dispute to conciliation
and then for adjudication did not occur in terms of schedule 7 of the
LRA, but in terms of section 10 of the Employment Equity Act 55 of
1998 ("the EEA"). That act came into operation on 7 August 1999.
It allows six months after the act or omission that allegedly
constitutes unfair discrimination for the referral to conciliation. It
does not provide that a dispute can be referred for adjudication or
arbitration without an attempt at conciliation under the auspices of
arbitration without an attempt at conciliation under the auspices of
the CCMA having taken place (as opposed to section 191(5) of the
LRA). It also does not stipulate any time period within which the
matter has to be referred to adjudication or arbitration. Mr Boda
submitted that it can be accepted that a party nevertheless has to
refer a dispute for adjudication within a reasonable time, but argued
that the fact that the legislature allowed six months for the referral
to conciliation must be regarded as an indication that the 90 day
time period stipulated in section 191(11) of the LRA should not
necessarily be regarded as a prima facie indication of what a
reasonable time is to refer an unfair discrimination dispute for
adjudication. Mr Boda suggested that the legislature intended that
greater latitude should be afforded to the referring party in the case
of an unfair discrimination dispute.
[14] Ms Da Costa, on behalf of the respondent, submitted that on
any interpretation the referral of the dispute, both in regard to the
alleged unfair dismissal (which she did not concede was valid) and
in regard to the alleged unfair discrimination, occurred well outside
any time period that can be regarded as reasonable, more so as the
dispute had arisen in December or November 1999 already. She
argued that, taking into account the length of the delay, the
unsatisfactory explanation for it and the case that the respondent
has put forward in its papers in answer to the charges of unfair
dismissal and racism, fairness dictates that the respondent should
no longer have to defend itself against a suit that has been so
tardily prosecuted.
[15] The first question that I need to address is what should be
regarded as a reasonable time after conciliation for an unfair
discrimination dispute to be referred for adjudication or arbitration
in terms of section 10(6) of the EEA.
[16] The EEA has to be read in conjunction with the Labour
Relations Act and the Basic Conditions of Employment Act 75 of
1997. In
fact it would be difficult to make sense of the EEA without doing so.
There are a number of instances of cross references in the EEA to
the LRA and the BCEA, and in present context more importantly, the
EEA utilises the same institutions for dispute resolution than the
LRA.
[17] Chapter 2 of the EEA is a replacement and refinement of the
portions of the prior items 2, 3 and 4 of schedule 7 to the LRA that
previously, before the EEA was introduced, addressed unfair
discrimination against employees. The remainder of the residual
unfair labour practice provisions in schedule 7 have now been
moved into the main body of the LRA in terms of the amendments
to section 186, 191 and 193 of the LRA by Act 12 of 2002.
Previously, item 3(4) of schedule 7 to the LRA also did not stipulate
any time limit for the referral of disputes about unfair labour
any time limit for the referral of disputes about unfair labour
practices to conciliation or to adjudication or arbitration.
[18] The re-enacted unfair discrimination provisions in chapter 2 of
the EEA imposes the six month time limit for a referral to
conciliation, but, as I have already mentioned, still does not specify
any time limit for a subsequent referral of the dispute to
adjudication or arbitration. The re-enacted residual unfair labour
practice provisions in terms of the amendments of section 186, 191
and 193 of the LRA imposes a 90 day time period for referrals of
disputes about unfair labour practices for conciliation. Section
191(5A) of the LRA now provides that the CCMA must in principle
arbitrate a dispute immediately after certifying that a dispute has
remained unresolved. A further referral or request for arbitration
has accordingly become unnecessary, unless the matter has to be
heard by the labour court, in which event the 90 day time period
specified in section 191(11) of the LRA applies.
[19] The present section 191 of the LRA does not bear out the
proposition that because a longer period is allowed to refer an unfair
labour practice dispute to conciliation than an unfair dismissal
dispute, an unfair labour practice dispute, once referred, does not
need to be addressed with the same urgency as an unfair dismissal
dispute.
[20] To my mind the longer time period that is granted to refer
unfair labour practice disputes for conciliation, rather relates to the
fact that, as opposed to a dismissal, which is final and is usually
preceded by some form of disciplinary or consultative process, the
introduction of a labour practice that is perceived to be unfair is
often succeeded by a consultative or grievance or dispute
procedure. It is also not necessarily characterised by the same
finality as applies to a dismissal. Employees, once they become
aware of the practice, and their employers should be afforded
sufficient time to attempt to resolve the dispute domestically
amongst themselves, before the dispute resolution mechanisms of
the LRA should be burdened. This would also apply to unfair
discrimination, with the even longer time period possibly
explainable with reference to the fact that an act or omission at a
particular time may only subsequently, once it takes effect, be
particular time may only subsequently, once it takes effect, be
susceptible of identification as unfair discrimination. In all cases
however, because the facts and circumstances governing
relationships between employers and employees are dynamic, once
it is apparent that a dispute cannot be resolved by agreement, it is
imperative that it be resolved by adjudication or arbitration as soon
as possible thereafter. As was stated by Kennedy AJ in Mothibela v
Western Vaal Metropolitan Substructure 2000 1 BLLR 85 (LC) at 86:
"The fair and meaningful resolution of labour disputes
ordinarily requires that they be resolved expeditiously."
(Emphasis added).
[21] It is not necessary to explore all the fairly self-evident reasons
why the employment field is in this regard distinguishable from
other areas of human endeavour that regularly give rise to disputes.
(See however Chemical Workers Industrial Union v Darmag
Industries (Pty) Ltd 1999 20 ILJ 2037 (LC) at 2042A-2043B.)
[22] The legislature has allowed a 90 day time period for unfair
dismissal disputes to be referred to the labour court for
adjudication. Arguably that period is too long. However, it would be
sensible to apply the same period to unfair discrimination disputes.
[23] Any delay beyond 90 days in referring an unfair discrimination
dispute to the labour court is prima facie unreasonable and needs to
be fully explained to the court in a condonation application that will
also need to traverse all other relevant facts.
[24] This conclusion is also supported by the wording of section
136(1)(b) of the LRA. It provides that:
"(1) If this Act requires a dispute to be resolved through
arbitration the commission must appoint a commissioner to
arbitrate that dispute if
(a) a commissioner has issued a certificate stating that the
dispute remains unresolved; and
(b) within 90 days after the date on which that certificate was
issued any party to the dispute has requested that the dispute be
resolved through arbitration. However, the commission on good
cause shown may condone a party's non-observance of that time
frame and allow a request for arbitration filed by the party after the
expiry of the 90 day period."
Section 10(7) of the EEA provides that:
"(7) The relevant provisions of parts C and D of chapter 7 of the
Labour Relations Act, with the changes required by context,
apply in respect of a dispute in terms of this chapter."
Accordingly, if parties agree in terms of section 10(6)(b) of the
EEA that an unfair discrimination dispute should not be
referred to the labour court, but should be resolved by
arbitration, it has to occur in terms of part C of chapter 7 of the
LRA. Section 136(1) would apply and a 90 day time limit
would need to be complied with when the matter is referred to
the CCMA for arbitration.
[25] In the present case the time period that it took the applicants
to refer their alleged unfair dismissal dispute and their unfair
discrimination dispute to this court extended four and half months
beyond 90 days. The explanation for the delay is poor and has been
deposed to by a person who, on the face of it, does not have first
hand knowledge of the facts he deposes to. The explanation is in all
probability false.
[26] Mr Boda referred me to the reported case of Toyota SA
Marketing v Schmeizer 2002 12 BLLR 1164 (LAC) at 1169B-F as
authority for the proposition that even a wholly unacceptable
explanation for a delay is not necessarily the end of the matter.
That proposition is correct. However, what the judgment also bears
out is that an unacceptable explanation for the delay, of itself, can
nevertheless justify refusal of condonation. If an explanation for the
delay is unacceptable the other facts that could influence the court
when considering to grant the indulgence must be of considerable
moment.
[27] In the Schmeizer judgment the LAC reaffirmed the established
principles regarding the assessment of condonation application.
Van Dijkhorst AJA stated:
"The legal principles applicable to applications for condonation
for non-compliance with the time limits laid down in rules are
well known. A reference to the abundance of authority is not
necessary. The appellant had to show sufficient cause for the
relief sought. The decision is to be based on fairness having
regard to all the relevant facts. These are usually the degree
of lateness, the explanation therefore, the prospects of
success and the importance of the case. Ordinarily they are
interrelated and not individually decisive. But if there are no
prospects of success the granting of condonation would be
pointless. ( Melane v Santam Insurance Co Ltd 1962 4 SA 531
(A) at 432C). To these four categories of relevant facts may be
added the convenience of the court, the avoidance of
unnecessary delay in the administration of justice and the
respondent's interest in the finality of a judgment. ( United
Plant Hire (Pty) Ltd v Hills and Others 1976 1 SA 717 (A) at
720E). And still this list is not a numerus clausus. The present
case demonstrates that as set out hereunder."
[Paragraph 15 at 1168I-1168B of the reported judgment.]
[28] In assessing the applicants' prospects of success I take into
account that the respondent has answered the applicants'
allegations fully and that the applicants have made no reply thereto.
More particularly, while it is apparent that the applicants do not
contest that the respondent no longer had a need for the individual
applicants' services as cleaners, they do not provide any particulars
of why they should have been regarded as suitable for the
alternative positions they suggest, why the respondent's
assessment that they were not, was wrong, or why the respondent's
actions lacked a commercial rationale.
[29] On the papers before me I assessed the applicants' prospects
of success on both the alleged unfair discrimination and the alleged
unfair dismissal disputes as poor. There are no other facts before
me that persuade me that the applicants should still be permitted to
prosecute claims that were initially pursued with so little urgency.
To the contrary, it would be highly unfair to expect of the
respondent to have to contest claims that resurfaced in March 1999,
four and a half months after the respondent was entitled to assume
that finality had been reached and a year and three months after
the issues that were allegedly the subject matter of the dispute had
arisen.
[30] In all the premises the application for condonation is
dismissed.
[31] No reasons have been advanced to me why costs should not
follow the event. Accordingly the applicants are ordered to pay the
respondent's costs, jointly and severally, the one paying the others
to be absolved.
[32] I have been urged by Ms Da Costa to make an order, if I were
to dismiss the application for condonation, dismissing the
applicants' case for the relief that has been sought in this court.
That is not necessary. Because the application for late referral of
the dispute has been dismissed, the matter has been finalised and
is no longer pending in this court.
_____________________________
__
F G BARRIE
Acting Judge of the Labour
Court
REPRESENTATION:
ON BEHALF OF APPLICANTS: ADV. F A BODA
ON BEHALF OF RESPONDENT: ADV. M B G DA COSTA