Moloi v Macsteel Services Centres SA (Pty) Ltd (JS 993/2019) [2022] ZALCJHB 12 (8 February 2022)

IN

THE LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

Case No: JS 993/2019

In the matter between:

LUI

DAVID

MOLOI

Applicant

and

MACSTEEL SERVICES CENTRES SA (PTY) LTD Respondent

Hearing: 28 January 2022

Date of judgment: 8 February 2022

JUDGMENT

VAN

NIEKERK J

[1] The applicant seeks condonation for the late filing of a statement of claim.

[2] The applicant was employed by the respondent in September 1992. He was charged with misconduct during May 2017 and issued with a final written warning. The applicant contested the fairness of the warning and referred the dispute to the bargaining council. A settlement agreement was reached in terms of which the respondent agreed to withdraw the final written warning that it has issued and to reconvene the disciplinary hearing to be chaired by an independent person.

[3] In October 2017, a disciplinary hearing was convened in terms of the settlement agreement at which the applicant was found guilty of gross insubordination. The applicant was offered a sanction of the final written warning, together with two weeks’ unpaid suspension, as an alternative to dismissal. After the hearing, and despite his written agreement to the sanction and serving the period of suspension, the applicant again referred a dispute to the bargaining council, alleging that the respondent had committed an unfair labour practice. At the conciliation, the respondent took the view that the applicant had reneged on the agreement between them, and advised the applicant of its intention to revert to the original sanction issued

on 19 October 2017, i.e. dismissal. The sanction was accordingly withdrawn and the applicant was paid for the two weeks of unpaid

suspension that had been applied. In January 2018, the respondent issued a letter confirming the applicant’s dismissal.

[4] The dispute was referred to the bargaining council and ultimately to arbitration. At the hearing, and in the absence of any contention by the applicant that his dismissal was automatically unfair, the presiding arbitrator ruled that the dispute was one that related to dismissal for a reason that was automatically unfair since the reason for dismissal was the applicants exercise of his statutory rights, and that he therefore had no jurisdiction to entertain the applicant’s claim. A review of that ruling remains pending.

[5] Be that as it may, on 3 December 2019, the applicant filed a statement of claim in terms of Rule 6. The statement of case ought to have been filed within 90 days of the date of the certificate of outcome of the

unfair dismissal dispute referred to the bargaining council. The certificate was issued on 21 February 2018. The statement of claim ought therefore to have been served and filed by 22 May 2018. As I have indicated, the statement of claim was filed only on 3 December 2019, the delay in excess of 18 months.

[6] The general principles to be applied are well-established. Condonation is not there merely for the asking, nor are applications for condonation a mere formality (see NUMSA v Hillside Aluminium [2005] ZALC 25; [2005] 6 BLLR 601 (LC); Derrick Grootboom v National Prosecuting Authority & another [2014] 1 BLLR (CC)). A party seeking condonation must make out a case for the indulgence sought and bears the onus to satisfy the court that condonation should be granted.

[7] This court is required to exercise a discretion, having regard to the extent of the delay, the explanation proffered for that delay, the applicant’s prospects of success, and the relative prejudice to the parties that would be occasioned by the application being granted or refused.

[8] In this court, that formulation, which has its roots in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A), has long been qualified by the rule that where there is an inordinate delay that is not satisfactorily explained, the applicant’s prospects of success are immaterial. In National Union of Mineworkers v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) the LAC said the following:

… 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 the delay, an application for condonation should be refused.

[9] The application for condonation must offer an explanation for the full length of the delay (see Independent Municipal and Allied Trade Union obo Zungu v SA Local Government Bargaining Council and others (2010) 31 ILJ 1413 (LC)). In eThekwini Municipality v Ingonyama Trust 2013 (5) BCLR 497 (CC), the Constitutional Court said the following:

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 the delay. And, what is more, the explanation given must be reasonable.’

[10] In the present instance, the delay is excessive, to say the least. The essence of the applicant’s explanation for the delay is that he was prosecuting his unfair dismissal dispute and that it was only when he received the ruling by the arbitrator to the effect that the bargaining council had no jurisdiction, did he file the statement of claim. It warrants observation that the jurisdictional ruling was issued on 26 September 2019, and the statement of claim was filed on 3 December 2019, 68 days later. In regard to his prospects of success, the applicant submits, without any elaboration, that he was dismissed solely on account of him exercising a right under the LRA.

[11] Even if I accept that for the period that the applicant was prosecuting his unfair dismissal dispute in the bargaining council, he was of the fide belief that he had instituted proceedings in the correct forum, the applicant has failed to explain the full period of the delay, and in particular, the period between the date of the ruling and the filing of the statement of claim. That delay is in itself significant, and it was incumbent on the applicant to explain why the statement of claim was not filed immediately on receipt of the arbitrator’s ruling.

[12] Insofar as the applicant’s prospects of success are concerned, to the extent that they are relevant and as I have observed, the applicant simply states that his dismissal was effected for a reason that was automatically unfair. The reference to’ paragraphs 26 -31’ in paragraph 28 of the founding affidavit is meaningless, and fails to establish any facts as the applicant asserts. It was never the applicant’s case during the course of the arbitration, at which

the applicant was represented by counsel, that he was dismissed on account of having referred a dispute to the bargaining council. In short, the applicant’s assertion, as a matter of fact, that he has demonstrated that his dismissal was effected consequent on his having exercise the right under the LRA, is simply not substantiated. The applicant does not even contend let alone reducing effects to establish, even on a prima facie basis, that there is a causal nexus between his having referred the dismissal dispute to the bargaining council on the one hand, and his dismissal on the other. The respondent avers that the chairperson acted in terms of its disciplinary code and dismissed the applicant for misconduct. The agreement reached with the applicant was should he agree to a lesser sanction, the penalty of dismissal would not be imposed but that should he failed to agree, the decision of dismissal would stand. Both the applicant and respondent performed in terms of that agreement. The respondent clearly decided that he would no longer be bound by the agreement, and referred a dispute to the bargaining council. The respondent, as it was entitled to do, restored the status quo ante. These facts are not disputed by the applicant. On the evidence before me, the applicant’s dismissal had less, if anything, to do with the applicant exercising a right under the LRA but rather his repudiation of an agreement, which repudiation is accepted by the respondent. To the extent that the applicant’s prospects of success or even relevant, these are not such so as to begin to outweigh a poor explanation and a significant delay.

[13] What weighs heavily against the applicant is his failure to file the condonation application within a reasonable time. The application was filed only on 12 March 2020, some 3 ½ months after the statement of claim was filed. There is no explanation for this delay.

[14] Finally, it should be recalled that the incident that gave rise to the applicant’s dismissal occurred in May 2017, almost 5 years ago. To permit this matter to proceed to trial would frustrate the statutory purpose of expeditious dispute resolution.

[15] Having regard to all of the relevant facts and circumstances, I am persuaded that the application for condonation for the late filing of the applicant’s statement of claim should fail.

[16] In regard to costs, this court has a broad discretion in terms of section 162 of the LRA to make orders for costs according to the requirements of the law and fairness. The respondent has made a with prejudice offer to settle the matter by way of an award of compensation to the applicant. The applicant has refused the offer. Ordinarily, this would attract an adverse order for costs. However, I must necessarily have regard to the fact that the applicant is an individual employee, who is assisted in these proceedings by the Wits Law Clinic. In these circumstances, the requirements of the law and fairness are best served by each party bearing its own costs.

I make the following order:

1. Condonation for the late filing of the applicant’s statement of claim is refused.

André van Niekerk

Judge of the Labour Court of South Africa