AMCU obo Members v Village Main Reef (Pty) Ltd - Kopanong (JS667/21) [2021] ZALCJHB 360 (22 October 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JS 667/21

In the matter between:

AMCU OBO MEMBERS Applicant

and

VILLAGE MAIN REEF (PTY) LTD - KOPANONG Respondent

Heard: 21 October 2021 (on paper)

Delivered: 22 October 2021 (This judgment was handed down electronically by emailing a copy to the parties. The 22 October 2021 is deemed to be the date of delivery of this judgment).

Summary: Due to Covid19 lockdown, this application was determined by having regard to the papers and the parties agreed to this arrangement. Condonation – delay not excessive – explanation adequate – no prejudice demonstrated. Held: (1) Condonation granted. Held: (2) There is no order as to costs.

JUDGMENT

MOSHOANA, J

Introduction

[1] This is an application seeking to condone the late filing of the statement of claim. The respondent opposes the application.

Background facts

[2] On or about 1 December 2020 members of AMCU embarked on an underground sit in. approximately 1700 employees were engaged in the industrial action and were dismissed. The employees were called upon to make representations to appeal their dismissal. All the dismissed employees were reinstated and issued with final written warnings, barring six of the dismissed employees. A dispute alleging unfair dismissal was referred to the CCMA in time for conciliation. On 15 March 2021, a certificate of non-resolution was issued. As required by the LRA, referral to this Court ought to have happened on 14 June 2021. The certificate of resolution did not indicate where the dispute should be referred. For that reason, the dispute was referred to the CCMA for arbitration. The jurisdiction of the CCMA was challenged. On 7 July 2021, the CCMA commissioner declined jurisdiction. A view was taken that the ruling declining jurisdiction was challengeable. However, after obtaining legal opinion to the contrary, the contemplated cause to review the ruling was jettisoned.

[3] On 28 July 2021, the statement of claim was lodged. On or about 2 August 2021, the present application was launched.

Evaluation

[4] The basis for the opposition is that the extent delay is more as opposed to what the applicant contends it is. The 90-day period is reckoned from the date of the certification as opposed to the date of condonation application. Thus, the contention that the delay is 136 days is wrong. The delay of 46 days is not excessive. The explanation is reasonable and acceptable. The applicant possess reasonable prospects of success. In terms of section 186 (1) (d) of the LRA, it is a dismissal where an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another. It is apparent from the statement of response that the reason for refusing to re-employ is that on 4 – 5 January 2021 these employees partook in a further industrial action, which intimidated and endangered the lives of other employees.

[5] Prima facie, this is not a justification to not re-employ the dismissed employees but it is a generation of another distinct reason for the second dismissal. Accordingly, the initial dismissal, which is one that is being attacked, is potentially unfair. In any event, condoning the late referral shall not prejudice the respondent since they have answered to the statement of case.

[6] For all the above reasons, the late filing of the statement of case is condonable. The issue of costs must stand for determination at the end of the adjudication of this dispute.

[7] In the result the following order is made:

Order

1. The late filing of the statement of claim is hereby condoned.

2. There is no order as to costs.

Graham Nasious Moshoana

Judge of the Labour Court of South Africa

Appearances:

On paper.