National Union of Metalworkers of South Africa and Others v Operational Risk Technologies (Pty) Ltd (JS105/18) [2021] ZALCJHB 166 (22 June 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JS105/18

In the matter between:

NATIONAL UNION OF METALWORKERS OF

SOUTH AFRICA

First Applicant

MAKU, L AND ANOTHER

Second and Further Applicants

And

OPERATIONAL RISK TECHNOLOGIES (PTY) LTD

Respondent

Heard: 05 March 2021

Delivered: 22 June 2021

In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be on 22 June 2021.

JUDGMENT

VAN AS, AJ

Introduction

[1] This is an application to condone the late filing of the applicants’ statement of claim.

[2] The respondent opposes the condonation application.

[3] Despite a video conference link being sent to the first applicant, there was no appearance for the applicants at the hearing of the matter.

[4] Mr Bester, who appeared on behalf of the respondent, asked this Court to nevertheless determine the condonation application on the merits.

The factual background

[5] The second and further applicants (“the Individual Applicants”) were dismissed on or around 13 February 2017. The first applicant (“NUMSA”) thereafter referred an unfair dismissal claim to the CCMA in which it was alleged that the Individual Applicants were dismissed for an unknown reason

[6] At the arbitration proceedings on 1 November 2017, the respondent raised as a point in limine that the Individual Applicants were dismissed for operational reasons and that the CCMA therefore lacked the requisite jurisdiction to arbitrate the dispute.

[7] Commissioner Irene Nyathela thereafter delivered a jurisdictional ruling on 15 November 2017 in which the Commissioner found that the CCMA lacks the requisite jurisdiction to arbitrate the dispute because more than one employee was retrenched and that the matter should therefore be referred to the Labour Court for adjudication.

[8] On or about 15 February 2018, NUMSA served and filed the statement of claim. On 18 July 2018, NUMSA sought condonation for the late filing of the statement of claim.

[9] NUMSA contends in the condonation application that the statement of claim was filed 1 day late.

[10] The respondent, on the other hand, contends that the statement of claim was filed 90 days late because the respondent had already disclosed, whilst opposing an application for condonation for the late referral of an unfair dismissal dispute to the CCMA, that the Individual Applicants were dismissed for operational reasons.

Evaluation of the merits

[11] Mr Rhoodie, who appeared for the respondent, submitted that the 90 day period contemplated in section 191(5) of the Labour Relations Act 66 of 1995 (“the LRA”) commenced on 28 August 2017 when Commissioner Paul Phundu delivered his Ruling condoning the late referral of the unfair dismissal

dispute to the CCMA.

[12] Mr Rhoodie further submitted that the Individual Applicants have no prospects of success because the dismissal for operational reasons is not properly pleaded or addressed in the statement of claim.

[13] In my view, the said 90 day ruling commenced on 20 November 2017 when Commissioner Nyathela delivered her jurisdictional ruling. The said 90 day period therefore ended on 18 February 2018.

[14] Since the statement of claim was served and filed on 15 February 2018, there was no need for the applicants to seek condonation for the late filing of the statement of claim.

Costs

[15] Since there was no appearance for the applicants at the hearing of the matter, and the respondent had erroneously opposed the condonation application, there should be no order as to costs.

Order

[16] Accordingly, I make the following order:

1. The statement of claim was served and filed within the 90 day period contemplated in section 191(11)(a) of the LRA;

2. The respondent is to serve and file its response to the statement of claim within ten (10) Court days of the date of delivery of this judgment;

3. There is no order as to costs.

__________________

M J VAN AS

Judge of the Labour Court of South Africa

Appearances:

For the applicants: No appearance

For the respondent: Mr Jan Rhoodie of Bester & Rhoodie Attorneys