Solidarity obo de Beer v Broll Property Group (Pty) Ltd and Others (JS832/19) [2020] ZALCJHB 124 (4 August 2020)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JS832/19

In the matter between:

SOLIDARITY obo JA DE BEER

Applicants

and

BROLL PROPERTY GROUP (PTY) LTD

First Respondent

MOBILE TELEPHONE NETWORKS (PTY) LTD

Second Respondent

FIDELITY SECURITY SERVICES (PTYY) LTD

Third Respondent

Heard: 21 July 2020 (via Microsoft Teams)

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to

be on 4 August 2020 at: 14:00

JUDGMENT

TLHOTLHALEMAJE, J

[1] Solidarity, acting on behalf of its member, Mr De Beer, seeks condonation for the late filing of a Statement of Claim, in which De beer alleged that his dismissal amounted to an automatically unfair dismissal within the meaning of section 187(1)(g) of the Labour Relations Act (LRA)[1]. Only the first and second respondents opposed the application.

[2] The first respondent (Broll), entered into a Master Services Agreement (MSA) with the second respondent (MTN) on 23 October 2014, in terms of which the Facilities Management Division of MTN were outsourced to Broll. De Beer was initially employed by Broll with effect from 7 August 2015 as a National Security Manager to render his services at Broll’s client, MTN. It is alleged that De Beer was dismissed on 31 August 2018, ‘alternatively on 10 September 2018’.

[3] In accordance with the provisions of Clause 34 of the MSA (‘The Consequences of termination of agreement on Personnel’), upon termination of the three – year MSA, the services of personnel would automatically be transferred to MTN (The new employer) as envisaged in the provisions of section 197(2)(c) of the LRA.

[4] On or about 20 July 2018, letters were sent to personnel by Broll including De Beer, advising that they would be transferred in terms of the provisions of section 197 of the LRA to MTN with effect from 1 September 2018, unless they agreed to conclude an agreement in terms of section 197(6) of the LRA. MTN on 25 July 2018 sent correspondence to Broll advising inter alia that from 1 September 2018, all affected employees were required to report to the premises of its various new suppliers.

[5] The MSA came to an end on 31 August 2018, on which date De Beer was instructed to return all work-related equipment in his possession to Broll. Solidarity had then sent correspondence to Broll and MTN requesting confirmation of where De Beer should report. On 6 September 2018, Broll reiterated that De Beer’s services have been transferred to MTN in terms of section 197 of the LRA. De Beer was also furnished with his UI19 and certificate of service indicating that his services have been

transferred to MTN.

[6] De Beer alleged that he had on 10 September 2018, reported for duty at the offices of MTN and was refused access. Following further correspondence from Solidarity about De Beer’s status, MTN responded on 14 September 2018, indicating that De Beer was transferred to the third respondent (Fidelity Security Services)(FSS). Further correspondence from Solidarity followed on 19 September 2018 wherein it was indicated that a dispute would be referred to the relevant bargaining council if MTN and Broll failed to accept De Beer’s services.

[7] A dispute was ultimately referred to the Commission for Conciliation Mediation and Arbitration (CCMA) on 26 September 2018. In the referral, it was contended that De Beer was dismissed for ‘unknown reasons’, and further that he was uncertain as to whether a section 197 transfer took place or not. Conciliation proceedings held on 18 October 2018 failed to resolve the dispute and it was referred for arbitration.

[8] At arbitration proceedings held on 21 February 2019, several preliminary points were raised, including the non-joinder of FSS, and the triggering of the provisions of section 197 of the LRA. A ruling was subsequently issued on 8 March 2019 in terms of which FSS was joined as a party to the proceedings. Other issues in relation to the preliminary points were reserved for oral evidence.

[9] The arbitration hearing took place on 10 September 2019 after postponements on 6 May 2019 and 27 June 2019. Preliminary points raised at those proceedings were that the CCMA lacked jurisdiction to determine the dispute as it related to an automatically unfair dismissal in view of the application of the provisions of section 197 of the LRA. A ruling was issued on 17 September 2019 in terms of which the preliminary points were upheld, and it was found that the CCMA lacked the requisite jurisdiction.

[10] The applicants filed and delivered a Statement of Case on 22 October 2019. They contend that this Court has jurisdiction under the provisions of section 191(5) (i) of the LRA read with section 77(3) of the BCEA. The legal issues raised are whether De Beer’s dismissal was automatically unfair in terms of section 187(1)(g) of the LRA, and in the in the alternative, whether the dismissal was unfair in terms of section 188 of the LRA.

[11] It is now trite that a party, after conciliation has failed, should proceed directly to the Labour Court for adjudication of the dispute if the dispute requires adjudication. Equally trite is that the time periods for the purposes of a referral under the provisions of sections 191(5) (b)(i) and 191(11) (a) of the LRA are calculated from the conciliation stage, and not the date of the adverse

jurisdictional ruling, to the day of the filing of the Statement of Claim. If ever there was any doubt in this regard, the Constitutional

Court laid the debate to rest in F & J Electrical CC v Metal and Electrical Workers Union of South Africa obo Mashatola and others[2] where it stated that;

“The union contended that the referral of the dispute to the Labour Court was within the prescribed period. It seems that this contention was based on a misconception that the 90-day period was to be reckoned from the date of the ruling of the CCMA. That is not so. In this case the period had to be reckoned from the date when the certificate was issued. In the absence of a finding that there was good cause for the failure to refer the dispute within the prescribed period, the Court had no jurisdiction to adjudicate the dispute.”

[12] In determining whether good cause has been shown, the Court must exercise its discretion judicially, taking into account the facts and circumstances of each case, and determine whether the interests of justice permit that condonation be granted[3]. In this regard, factors to be considered in determining whether the interests of justice dictate that condonation be granted include, but are not limited to the degree of lateness, the explanation thereof, the prospects of success, the prejudice to the parties, the importance of the case, the nature of the relief sought; and the effect of the delay on the administration of justice and other litigants[4].

[13] In this case, the certificate of outcome was issued on 18 October 2018 whilst this Statement of Claim was only filed and delivered on 22 October 2019. The applicants have conceded that the referral is about 332 days or nine months out of time, which delay is excessive in the extreme.

[14] Other than contending that the delay is not excessive, central to the applicants’ explanation for the delay was that they were not in a position to contend which party was responsible for De Beer’s dismissal, and further that they were uncertain whether the provisions of section 197 of the LRA found application.

[15] Clearly the above explanation is devoid of any truth or substance. The explanation is indeed contrived, and cannot by all accounts be regarded as acceptable or satisfactory. At worst, it amounts to no explanation at all in the light of the following facts;

15.1 As at the time of his employment, De Beer was aware of the MSA between Broll and MTN, and the consequences of its termination.

15.2 When the MSA was about to be terminated, De Beer was informed of the consequences thereof and the status of his employment subsequent thereto.

15.3 Any doubt as to the circumstances that led to him being transferred to MTN and subsequently thereto to FSS is dispelled by various correspondence sent to him and further exchanges between Broll, MTN and Solidarity. It was therefore disingenuous of the applicants to refer a dispute to the CCMA based on the allegations that the reason for the alleged dismissal was unknown when the applicants knew as far back as 20 July 2018 with letters from Broll, advising all its employees that they were to be transferred to MTN.

15.4 It is further not in doubt that the applicants were aware at the conciliation meeting what the circumstances leading to the status of De Beer were. The same issues were raised at the preliminary hearings at the CCMA on 21 February 2019 and before the jurisdictional ruling of the CCMA dated 8 March 2019

[16] In the light of the above considerations, I agree with the submissions made on behalf of Broll and MTN that the refusal by the applicants to accept that the services of De Beer were transferred to MTN and subsequently to FSS amounted to recklessness. Clearly the applicants recklessly disregarded the common cause facts, and the applicable provisions of the LRA, and pursued their dispute in a wrong forum after conciliation.

[17] In the light of the common cause facts from 20 July 2018, the applicants could not as they have alleged, been confused about the circumstances surrounding De Beer’s transfer in accordance with the provisions of section 197 of the LRA. If ever there is any semblance of truth in the alleged confusion, the position would have been clearer from at the time of the conciliation

of the dispute and the raising of preliminary points. The mere fact a certificate of outcome was issued directing that the matter be referred for arbitration is not an excuse for pursuing arbitration proceedings, when the facts of the case as known to the parties

pointed to the dispute requiring adjudication by this Court. Furthermore, the mere fact that the arbitration proceedings were postponed on two occasions cannot serve as an excuse, in circumstances where the dispute ought not to have been referred for arbitration in the first place.

[18] In the end, it did not require the CCMA through its jurisdictional ruling to confirm a known and obvious fact, which the applicants had for reasons best known to them refused to accept. There can be no doubt that the applicants knew who De Beer’s employer was and where he ought to have reported for duty with effect from 14 September 2018, specifically after he was informed by MTN to report for duty at FSS, and further what the nature of his dispute was.

[19] It is trite that in the absence of an acceptable and satisfactory explanation for the excessive delay in complying with the time

frames, condonation should be refused without the need to consider other relevant factors related to good cause[5]. Even if the Court was otherwise inclined to consider these factors, it needs to be said without hesitation that De Beer’s prospects of success on the merits are bleak. This is so in that in view of the nature of the MSA and various correspondence sent to him and Solidarity, the applicants have always known what the consequences of the termination of the MSA were.

[20] With effect from 31 August 2018, the applicants knew that an employment relationship no longer existed between De Beer and Broll, and that from 14 September 2018, they knew where De Beer was expected to report for duty. It was submitted on behalf of MTN that since there was no insourcing, it could not have been the employer, as the services in question were outsourced to FSS, which became the employer.

[21] The arguments surrounding the failure to enter into an agreement as contemplated in section 197(6) of the LRA, or the alleged dispute between Broll and MTN as to whether the employees were transferred to MTN as envisaged in the MSA are red herring. Even if De Beer was dissatisfied with his transfer to FSS, nothing prevented him from reporting for duty at that entity, and pursuing a dispute under the provisions of section 187(1)(g) of the LRA. Instead, De Beer deliberately chose not to report for duty at FSS, and imagined himself as dismissed by either Broll or MTN when that was not the case.

[22] Despite not having reported for duty at FSS as it was expected, there was no suggestion before the Court that FSS had as a result, terminated his services. In the end, a case of unfairness cannot be sustained against either Broll or MTN, in circumstances where as a direct result of the provisions of section 197 of the LRA, De Beer has not rendered his services at an entity he was transferred to.

[23] In regards to any potential prejudice to De Beer, clearly this would be self-inflicted. It is not correct as submitted on his behalf, that the termination of his employment was abrupt or amidst confusion. The process of his transfer started as far back as 20 July 2018. He was aware throughout of what his status ultimately would be when the MSA came to an end. Crucially however, is that he finds himself in this predicament, simply because he refused or failed to report for duty at FSS as was expected of him. The fact that a timeous referral of the dispute was made to the CCMA is neither here nor there. This is so in that an incorrect process after conciliation was pursued contrary to obvious facts.

[24] At the opposite side of the scale, it is Broll and MTN that stands to suffer prejudice by having to defend a case against them, that was not only belatedly and recklessly pursued, but which also has no prospects of success. Equally so, the administration of justice cannot be best served by litigants who recklessly pursue their disputes in wrong forums despite obvious facts and what the provisions of the LRA provide.

[25] In the end, it cannot be in the interests of justice to grant condonation in circumstances where the delay in referring a dispute is excessive in the extreme; and where that delay was as a result of recklessness and recalcitrance on the part of the applicants to accept the obvious facts and what the legal position should be; or where the explanation proffered for the delay amounts to no explanation at all; and or where the prospects of success on the merits of the claim are utterly hopeless.

[26] I have had regard to the submissions made in respect of an order of costs as sought by both Broll and MTN. It is my view that the applicants through their conduct as already described, placed themselves in a position where they were required to seek condonation, when this could clearly have been avoided. This is not an instance where unrepresented and unsophisticated litigants pursue a dispute in a wrong forum simply because of lack proper advice or lack of knowledge. Solidarity has throughout and since June 2018, been aware of the circumstances surrounding De Beer’s employment, and the reasons he was transferred to FSS. The reasons the applicants have advanced in pursuing the dispute at the CCMA after conciliation have been found to be contrived and clearly there was no reason ultimately for Broll and MTN to find themselves incurring costs in defending this application, when that could have been avoided. In the circumstances, the requirements of law and fairness dictate that Solidarity be burdened with the costs of this application.

[27] Accordingly, the following order is made;

Order:

1. The application for condonation for the late filing of the Statement of Case is dismissed.

2. Solidarity is ordered to pay to the First and Second Applicants, the costs of this application.

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Representation:

For the Applicants:

Mr. H van der Hoven (Solidarity Official)

For the First Respondent:

Mr D Mer of Fluxmans Incorporated

For the Second Respondent: Adv. AM Mthembu, instructed by Mashiane Moodley & Monama INC

[1] Act 66 of 1995, as amended

[2] [2015] 5 BLLR 453 (CC) at 461, para [30]. See also SATAWU obo Members v South African Airways (Pty) Ltd and Others (JA54/13) [2014] ZALAC 40; [2015] 2 BLLR 137 (LAC) at para 13

[3] See Steenkamp and Others v Edcon Limited 2019 (7) BCLR 826 (CC); (2019) 40 ILJ 1731 (CC); [2019] 11 BLLR 1189 (CC), where it was held that “[36] Granting condonation must be in the interests of justice. This Court in Grootboom set out the factors that must be considered in determining whether or not it is in the interests of justice to grant condonation: “[T]he standard for considering an application for condonation is the interests of justice. However, the concept ‘interests of justice’ is so elastic that it is not capable of precise definition. As the two cases demonstrate, it includes: the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success. It is crucial to reiterate that both Brummer and Van Wyk emphasise that the ultimate determination of what is in the interests of justice must reflect due regard to all the relevant factors but it is not necessarily limited to those mentioned above. The particular circumstances of each case will determine which of these factors are relevant. It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case entitling it to the court’s indulgence. It must show sufficient cause. This requires a party to give a full explanation for the non-compliance

with the rules or court’s directions. Of great significance, the explanation must be reasonable enough to excuse the default. The interests of justice must be determined with reference to all relevant factors. However, some of the factors may justifiably be left out of consideration in certain circumstances. For example, where the delay is unacceptably excessive and there is no

explanation for the delay, there may be no need to consider the prospects of success. If the period of delay is short and there is an unsatisfactory explanation but there are reasonable prospects of success, condonation should be granted. However, despite the presence of reasonable prospects of success, condonation may be refused where the delay is excessive, the explanation is

non-existent and granting condonation would prejudice the other party. As a general proposition the various factors are not individually decisive but should all be taken into account to arrive at a conclusion as to what is in the interests of justice.” [37] All factors should therefore be taken into account when assessing whether it is in the interests of justice to grant or refuse condonation.”

[3] See Steenkamp and Others v Edcon Limited 2019 (7) BCLR 826 (CC); (2019) 40 ILJ 1731 (CC); [2019] 11 BLLR 1189 (CC), where it was held that

“[36] Granting condonation must be in the interests of justice. This Court in Grootboom set out the factors that must be considered in determining whether or not it is in the interests of justice to grant condonation:

“[T]he standard for considering an application for condonation is the interests of justice. However, the concept ‘interests of justice’ is so elastic that it is not capable of precise definition. As the two cases demonstrate, it includes: the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success. It is crucial to reiterate that both Brummer and Van Wyk emphasise that the ultimate determination of what is in the interests of justice must reflect due regard to all the relevant factors but it is not necessarily limited to those mentioned above. The particular circumstances of each case will determine which of these factors are relevant.

It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case entitling it to the court’s indulgence. It must show sufficient cause. This requires a party to give a full explanation for the non-compliance

with the rules or court’s directions. Of great significance, the explanation must be reasonable enough to excuse the default.

The interests of justice must be determined with reference to all relevant factors. However, some of the factors may justifiably be left out of consideration in certain circumstances. For example, where the delay is unacceptably excessive and there is no

explanation for the delay, there may be no need to consider the prospects of success. If the period of delay is short and there is an unsatisfactory explanation but there are reasonable prospects of success, condonation should be granted. However, despite the presence of reasonable prospects of success, condonation may be refused where the delay is excessive, the explanation is

non-existent and granting condonation would prejudice the other party. As a general proposition the various factors are not individually decisive but should all be taken into account to arrive at a conclusion as to what is in the interests of justice.”

[37] All factors should therefore be taken into account when assessing whether it is in the interests of justice to grant or refuse condonation.”

[4] See Melane v Santam Insurance Co. Ltd 1962 (4) SA 531 (A)

[5] NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) at 211G-H: where in was held: “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”

[5] NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) at 211G-H: where in was held:

“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”