South African Transport and Allied Workers Union and Others v JL Excavators (JS 276/2013) [2013] ZALCJHB 245 (7 August 2013)

Not Reportable

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA,

IN JOHANNESBURG

JUDGMENT

Case no: JS 278/2013

In the matter between:

SOUTH AFRICAN TRANSPORT AND ALLIED WORKERS UNION First Applicant RODNEY MOIMA & 11 OTHERS Second and further Applicants and J L EXCAVATORS Respondent

Heard: 07 August

Delivered: 07 August 2013

Summary: (Condonation – delay significant – reasonable and persistent efforts by members to get union to act – prospects moot – condonation granted).

CONDONATION RULING

LAGRANGE, J

The applicants in this matter are applying for condonation for the late filing of their referral of an alleged unfair retrenchment

dispute to court.

The delay of three months after the due date for filing is considerable.

The principal explanation for the delay is the tardiness of the first applicant in processing the dispute referral on behalf of its members, the second to further applicants. Unlike what is encountered in many similar cases where the union is responsible for undue delay, in this instance the second to further applicants made repeated approaches to the union to attend to their dispute.

Accordingly, this is not simply a case where the affected members folded their arms and showed no further interest in the matter. It was suggested in argument that they could have sought outside assistance if the union was not helping them as it should have. It is true that the applicants could have approached an attorney to handle the matter, but obviously that process would have entailed the incurral of legal costs, whereas there is no reason to believe that the union was charging the members for its services. Despite the length of delay, I believe the applicants have given a reasonable explanation for their default in referring the matter.

The applicant’s representative rightly conceded that since the dismissal dispute fell under section 189A of the Labour Relations Act 66 of 1995 ('the LRA'), they can no longer pursue a claim of procedural unfairness against the respondent. Accordingly, their claim is confined to one of the substantive fairness of the retrenchments. The main bone of contention between the parties as to the need for the retrenchments appears to concern the fact that the respondent engaged the services of a labour broker during the time the individual applicants were being retrenched. By implication, the applicants suggest that the retrenchment was not justified since there was still work to be done and the company was recruiting fresh labour to do it, albeit through a contract with a labour broker. It was contended from the bar by the respondent that the services it required at the time was simply to fulfil a short-term contract of limited duration, namely 10 days. The court was also urged to consider the fact that the retrenchments were caused by the loss of a major contract, according to the respondent. On this basis, the respondent submitted that the applicant's prospects of success were slim. It is difficult at this stage to determine with any accuracy the prospects of success of the applicants on the question of whether they could have done the work that was assigned to the labour broker, save to say that it might prove in the end that there was some alternative to their immediate retrenchment. If, on a more extensive examination of the respondent’s defence which might be disclosed in the pre-trial process, it appears that

there were no feasible alternatives to retrenchment at that time, the applicants might decide at that point not to take the matter

further.

However, on the limited information before me there is a possibility that the applicants could establish that the employer failed to adopt feasible alternatives to retrenchment, and accordingly they might be entitled to some relief. Consequently, I believe the applicants do have some prospects of success which are not so slender that they do not warrant to be ventilated in a trial.

I accept that some prejudice was caused to the respondent by the delay in filing the statement of case. However, if the applicants

are ultimately successful and are awarded compensation or retrospective reinstatement or re-employment, the presiding Judge can consider the delay when making any of the order in the applicant's favour. I am also mindful of the fact that the applicants have not had an opportunity to have the substantive fairness of their dismissal determined by any independent body.

Balancing all the factors above, I believe this is a matter where condonation ought to be granted, but the parties should endeavour to explore the factual disputes over the respondent’s use of Labour brokers at the time of retrenchment, with a view to

determining whether the matter should proceed further or should be settled.

On the matter of costs, I believe that the justification for whether or not the applicants should be pursuing their case, which will only be determined at trial, the costs in this matter should follow any award of costs in the trial.

Order

The applicant's late referral of their unfair retrenchment dispute is condoned.

Costs of this application shall be costs in the cause.

The parties are directed to convene a pre-trial meeting within 15 days of the date of this judgment and a concluded pre-trial minute must be filed by the applicants within 20 days of the date of this judgment.

_______________________

R LAGRANGE, J

Judge of the Labour Court of South Africa

APPEARANCES

APPLICANT: D Malope of Mitti Attorneys

FIRST RESPONDENT: J H De La Rey instructed by Albert Hibbert Attorneys.