I N T H E L A B O U R C O U R T O F S O U T H A F R I C A
H E L D A T D U R B A N
CASE NO: D518/04
In the matter between:
NUMSA First Applicant
CHERYL JOSEPH Second Applicant
and
HILLSIDE ALUMINIUM Respondent
JUDGMENT
MURPHY, AJ
1. The second applicant seeks condonation for the late referral to the
Labour Court of a dispute regarding her dismissal. The dispute has
been referred in terms of section 191(5)(b)(i) alleging that the dismissal
was automatically unfair because the reason for the dismissal was that
she took action or indicated an intention to take action against her
employer by exercising certain rights conferred on her by the Labour
Relations Act. In particular, her pursuit of a claim of sexual harassment.
2. Section 191(11) of the Labour Relations Act provides that the referral of
a dispute to the Labour Court for adjudication in terms of subsection (5)
(b) must be made with 90 days after the bargaining council or (as the
case may be) the commissioner has certified that the dispute remains
unresolved. In terms of section 191(11)(b) the Labour Court may
condone nonobservance of the time frame on good cause shown.
3. The second applicant was dismissed by the respondent on 4 August
2003. She then referred a dispute regarding her alleged unfair dismissal
to the Metal and Engineering Industry’s Bargaining Council (“the
MEIBC”) on 4 October 2003. The dispute was not resolved at conciliation
and the MEIBC issued a certificate of nonresolution on 12 December
2003. On 18 December 2003, the first applicant, (NUMSA) referred the
dispute to arbitration at the instance of MEIBC.
4. On 17 February 2004, the respondent made application to the MEIBC to
be allowed legal representation at the proceedings. This was opposed by
NUMSA, acting on behalf of the second applicant. A ruling was made in
favour of the respondent and legal representation was granted.
Thereafter, NUMSA brought an application for a postponement in order
that the second applicant could instruct attorneys. This too was granted.
5. In correspondence addressed by the respondent’s attorneys to NUMSA
on 18 February and 9 March 2004, the respondent’s attorneys requested
NUMSA to indicate which legal representative would be appearing on
behalf of the second applicant. NUMSA replied on 10 March 2004
indicating that Mr. S Khanyile, a legal officer of NUMSA, would be
appearing on behalf of the second applicant.
6. The matter was then subsequently set down for arbitration on 29 April
2004.
7. Some time after this, it is not clear when, the second applicant
instructed a firm of attorneys to represent her. On or about 19 April
2004 the second applicant’s attorney telephoned the respondent’s
attorneys and requested a postponement because having recently
come on record they required further time to prepare for the
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arbitration. The respondent consented to the postponement. The
matter was subsequently set down for arbitration on 14 June 2004.
8. At the proceedings of 14 June 2004, the second applicant’s attorney,
despite being the referring party, raised a point in limine that the
MEIBC lacked jurisdiction to arbitrate the dispute. In an arbitration
award dated 24 June 2004, the arbitrator upheld the point in limine
that the MEIBC did not have jurisdiction because the matter
concerned an alleged automatically unfair dismissal and thus ought
properly to have been referred to the Labour Court.
9. About six weeks later, on 4 August 2004, the second applicant filed a
statement of case with the Labour Court in terms of Rule 6.
10. Given that the MEIBC issued a certificate declaring the dispute to
remain unresolved on 12 December 2003, it was incumbent on the
second applicant to refer the dispute to the Labour Court in terms of
section 191(11)(a) on or before 11 March 2004. The applicant’s
statement of case, as already stated, was only filed at court on 4
August 2004. This means that the statement of case was delivered
approximately 146 days late. Accordingly, the second applicant was
obliged to make application for condonation in terms of section
191(11)(b), which she has done.
11. In determining whether good cause exists, a court is enjoined to have
regard to the degree of lateness; the explanation for the lateness; the
prospects of success; and the importance of the case Melane v
Santam Insurance Company Ltd 1962(4) SA 531(A) at 532CF. The
court has a discretion to be exercised judicially upon a consideration
of all the facts, and essentially it is a matter of fairness to both sides.
Ordinarily the considerations, which are taken into account, are seen
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as interrelated. No single consideration is individually decisive.
Where, as in this case, one is dealing with a lengthy delay, the
applicant for condonation is obliged to give a full and extensive
account of the delay to assist the court determine whether the
explanation for it is reasonable or not. The explanation must be
sufficient to enable the court to determine how the delay came about
and to allow an assessment of the applicant’s motives and conduct
for the purpose of making a finding of reasonableness.
12. Additionally, there should be an acceptable explanation tendered in
respect of each period of delay. Condonation is not there simply for
the asking. Applications for condonation are not a mere formality. The
onus rests on the applicant to satisfy the court of the existence of
good cause and this requires a full, acceptable and ultimately
reasonable explanation. One of the primary purposes of the Labour
Relations Act is to ensure that disputes are resolved expeditiously,
especially dismissal disputes. The intention is that disputes alleging
unfair dismissal should be referred to conciliation within 30 days of
the dismissal (section 191(1)(b)(i)); that the conciliation process be
completed within 30 days (section 191(5)) and that disputes for
adjudication by the Labour Court should then be referred within 90
days of the end of the conciliation process. For a variety of reasons
these time periods are often not complied with in practice.
Nevertheless, to do justice to the aims of the legislation, parties
seeking condonation for noncompliance are obliged to set out full
explanations for each and every delay throughout the process. An
unsatisfactory and unacceptable explanation for any of the periods of
unsatisfactory and unacceptable explanation for any of the periods of
delay will normally exclude the grant of condonation, no matter what
the prospects of success on the merits. The latter principle was
stated by Myburgh, JP in NUM v Council for Mineral Technology
[1999] 3 BLLR 209 (LAC) at 211GH:
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There is a further principle which is applied and that is that without a reasonable
and acceptable explanation for the delay, the prospects of success are
immaterial, and without prospects of success, no matter how good the
explanation for delay, an application for condonation should be refused.
13. Similarly, in Chetty v Law Society of Transvaal 1985(2) SA 756(A) at
765 the then Appellate Division confirmed that good prospects of
success alone are not enough in the absence of a reasonable
explanation for the default.
14. The applicant was dismissed from her employment on 4 August
2003. It took a year to the day before she filed a statement of case
with the Labour Court on 4 August 2004. The referral to conciliation
took place 2 months after the dismissal namely on 4 October 2003.
The second applicant tenders no explanation for this delay of 30 days
in her founding affidavit. Initially she claimed that the reference to
conciliation and the conciliation meeting took place within the time
limits prescribed by the Act and the rules of the bargaining council.
The respondent has denied this in its answering affidavit and
submitted that the referral for conciliation to the MEIBC was 35 days
late. In her reply the second applicant merely notes the contents of
this averment and offers no explanation whatsoever for the delay. Nor
is it clear from the papers whether the late referral was condoned and
hence whether the bargaining council complied with the necessary
jurisdictional preconditions before attempting to conciliate the dispute.
Nothing turns on this from a jurisdictional point of view, in that this
court, in the absence of any challenge to the certificate of non
resolution, is entitled to assume it has jurisdiction in regard to the
resolution, is entitled to assume it has jurisdiction in regard to the
referral for adjudication provided, of course, that all the other
jurisdictional preconditions are met. Nevertheless, before I can decide
whether good cause exits for condonation of the late referral to
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adjudication, there must be some explanation for the delay leading up
to conciliation. A full picture of the manner in which the dispute has
been processed is required.
15. Moreover, and perhaps most importantly, the second applicant’s
explanation for the overall delay as set out in her papers falls woefully
short. She states simply that conciliation occurred, that she was
represented by a union official who subsequently left the employ of
the union and that the matter was then referred to her attorneys
during May 2004. Her attorney was of opinion that the dismissal
constituted an automatically unfair dismissal and accordingly decided
to argue the point of jurisdiction on 14 June 2004.
16. Accepting that the second applicant may have been poorly advised
by her representative on the question of jurisdiction, which may to
some extent justify the failure to refer the dispute to the Labour Court
before the matter was handed to her attorneys in May 2004, there is
no explanation at all on record for why the second applicant’s
attorney waited until 14 June 2004 to raise the jurisdictional point. No
attempt was made by the second applicant to remedy the defect by
an immediate referral to the court once she (through her attorneys)
became aware that the MEIBC most probably lacked jurisdiction.
Instead, the second applicant waited until 14 June 2004 and argued
the point of jurisdiction before the arbitrator. Why she preferred to
seek a ruling from the arbitrator is not clear. There was no need to do
so. The second applicant had a right to refer the matter directly to the
Labour Court without waiting for a ruling from the arbitrator, unless
there was a costs issue involved. No explanation has been offered in
this regard. It is also not clear from the papers at which point in time
the applicant became aware of the jurisdictional issue. What is more
the applicant became aware of the jurisdictional issue. What is more
there is no explanation for the 6 week delay in referring the matter to
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the Labour Court after receiving the arbitrator’s ruling on 24 June
2004. By preferring to seek a ruling from the arbitrator, which
arguably was entirely unnecessary, the second applicant effectively
delayed the referral of the matter to adjudication for a period of 3
months and essentially has given no explanation for following that
particular course.
17. Accordingly I am in agreement with the submission made by Mr.
Alexander, who appeared on behalf of the respondent, that the
second applicant’s explanation for the late referral of the dispute to
adjudication is not suitably full to evaluate the second applicant’s
motives and conduct in relation to the various delays. To recap:
there is no justification at all of the delay in bringing the conciliation
proceedings; there is no affidavit from any official of NUMSA
explaining the reason for the delay from 12 December 2003 until April
2004 when the matter was referred to the applicant’s attorneys; the
period from April 2004 until 14 June 2004 is also not adequately
explained, in that there is no account as to when the issue of
jurisdiction became apparent and why the attorneys chose the course
of conduct which they did; and finally there is no account whatsoever
for the delay from the receipt of the arbitrator’s ruling on 7 July 2004
until the filing of the statement of case on 4 August 2004.
19. The difficulties is in this regard are compounded by the unusually cryptic
manner in which counsel for the second applicant, Mr. Bingham, chose
to deal with the condonation application in his heads of argument. For
reasons best known to him, he limited his submission to a single
paragraph, which reads:
The merits are so overwhelmingly in the applicant’s favour that on the
The merits are so overwhelmingly in the applicant’s favour that on the
principle set out in Melane v Sanlam Insurance Company Ltd 1962(4) SA
531(A), the respondent’s point in limine falls to be dismissed with costs.
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20. In his appearance before me, Mr. Bingham added little to his heads
of argument with regard to the explanation for the delay and instead
focused entirely on the applicant’s assumed prospects of success.
In the circumstances, the conclusion is inescapable that the
applicants have failed to provide a reasonable explanation for the
delay and therefore did not satisfy the requirements for granting
condonation. On that ground alone the application must fail. Again it
deserves emphasis, condonation is not there for the asking.
Applicants have an onus which they are obliged to discharge by
way of sufficient evidence. Should they fail to make out a proper
case, by failing to offer a reasonable explanation for all the periods
of delay in making the referral, they risk being unsuccessful in their
condonation application, no matter how strong the prospects of
success on the merits.
21. Despite the totally deficient rationalization for the delays, Mr.
Bingham has prevailed upon me to make an exception in this
instance because, so he claims, the applicant’s prospects of
success are overwhelmingly in her favor and the nature of the
dispute is of particular importance. The applicant’s case is that she
was a victim of unwelcome sexual advances by one of her
superiors. Thereafter, she lodged a grievance internally resulting in
a disciplinary hearing at which led to the alleged culprit was
acquitted on the sexual harassment charges. The applicant was
aggrieved by this outcome and referred the dispute to the CCMA in
terms of item 7(7) of the Code of Good Practice on the Handling of
Sexual Harassment Cases, issued in terms of section 203 of the
Labour Relations Act. The applicant claims that as a result of her
Labour Relations Act. The applicant claims that as a result of her
referral of the dispute to the CCMA she was charged with breaching
the respondent’s sexual harassment policy. And this then led to her
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unfair dismissal.
22. The respondent avers that the second applicant was dismissed for
having committed the following offences:
• She acted in breach of the confidentially
requirement (clause 5.6) contained in the respondent’s
sexual harassment policy by persisting with allegations
of sexual harassment against her superior at her
workplace after the finalization of the disciplinary
hearing.
• She further allegedly acted in breach of clause
5.1 of the policy in that she made unfounded and
frivolous allegations against her superior to the effect
that he had arranged for her to be transferred to another
department because she had resisted his sexual
advances.
23. Accordingly the respondent denies that it dismissed the applicant
because of her refusal to withdraw her complaint against her
superior.
24. In regard particularly to the second charge against the applicant it
was contended that she was aware that her transfer had been
initiated by the Human Resources Services: Superintendent and
had nothing to do with the superior against whom she had lodged
the complaint. This much was evident from documentation that was
in her possession and accordingly the allegations that her transfer
had been effected by the superior concerned were false and made
knowingly.
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25. Sexual harassment is a scourge in the workplace and courts should
naturally proceed cautiously, but sympathetically, towards applicants that
allege being a victim to it. Moreover, the dismissal of a complainant who
has made allegations of sexual harassment should be approached with
extreme circumspection and even suspicion, especially when, as in this
case, there are indeed indications on record that the employer appears
to have taken umbrage at the applicant’s referral of the dispute to the
CCMA. By the same token, there is also evidence on record that the
respondent unquestionably informed all parties throughout that every
effort should be made to ensure confidentiality during the further
investigations of the alleged sexual harassment and that perhaps the
second applicant had not been as circumspect as she ought to have
been. For that reason, while I have some sympathy with the second
applicant and her attempts to prosecute her complaint, I am not
persuaded that the prospects of success are overwhelmingly in her
favor. Whether or not she was the victim of sexual harassment and
subsequent victimization is not possible to say. From the limited
information available, her prospects of success, at best, can be
described as reasonable. Had she clarified the delays in referring the
matter to adjudication, the importance of the issue and her reasonable
prospects of success most likely would have compensated for the long
delay. However, unfortunately, as I have said, absent any explication
whatsoever for some of the periods in issue, it is regrettably not possible
to grant condonation.
26. In the final result, the second applicant may not have been as well
served by her representatives as she might have hoped. Still, any lack of
diligence on the part of her representatives of itself does not justify the
granting of her condonation. There is a limit beyond which a litigant
cannot escape the results of her representatives lack of diligence or the
inconsistency of the explanation tendered Saloojee & Another NNO v
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Minister of Community Development 1965 (2) SA 135 (A) @ 140H141D.
Such, nonetheless, does militate against making a costs award against
the second applicant.
27. In the premises, I make the following orders:
1. The application for condonation in terms of section 191(11)(b) of the
Labour Relations Act is refused.
2. The application in terms of section 191(5)(b)(i) is dismissed.
3. There is no order as to costs.
MURPHY, AJ
Date of Hearing: 17 March 2005
Date of Judgment: 20 April 2005
APPEARANCES:
For the Applicant: Adv. M. Bingham
Instructed by: Brett Purdon Attorneys
For the Respondent: Mr. M. Alexander
Deneys Reitz Attorneys
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