National Education Health and Allied Workers Union (Nehawu) v Metrofile (Pty) Ltd

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: MV Phatshoane ADJP and Coppin JA and Kathree-Setiloane AJA
• Judgment Date: 29 March 2021
• Docket Number: JA53/2019
• Hearing Date: 19 November 2020
• Court: Labour Appeal Court
• Citation: 2021 JDR 0479 (LAC)

Phatshoane ADJP:

[1]

This is an appeal, with leave of this court, against the whole of the judgment and order of the Labour Court (per Nieuwoudt AJ) dated 08 March 2019 dismissing the application for condonation of the late filing of the first to the sixteenth appellants' statement of claim and their dismissal claim with no order as to costs.

[2]

The second to the sixteenth individual appellants were retrenched on 04 July 2017. There is a dispute of fact on the question whether they were dismissed by Metrofile (Pty) Ltd, the first respondent, or Infovault (Pty) Ltd, the second

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respondent. It suffices, at this point, to state that the appellants referred their dismissal dispute to the Commission for Conciliation Mediation and Arbitration ("the CCMA") in terms of s 191 of the Labour Relations Act, 66 of 1995 ("the LRA") for conciliation.

[3]

Following an unsuccessful attempt at conciliation of the dispute on 01 August 2017 the dismissal claim ought to have been referred to the Labour Court for adjudication in terms of s 191(11)(a) of the Labour Relations Act, 66 of 1995 ("the LRA"). However, on or about 20 September 2017, the appellants referred their dispute to the CCMA for arbitration.

[4]

On 20 November 2017, at arbitration, a commissioner of the CCMA ruled that the CCMA lacked jurisdiction and that the dispute be referred to the Labour Court for adjudication. The appellants failed to lodge their dispute with the Labour Court within the prescribed timeframe. Ms Pumla Nkosi ("Ms Nkosi"), a candidate attorney in the employ of Mdhluli Pearce and Mdzikwa, the attorneys of record for National Education Health and Allied Workers Union (NEHAWU), the first appellant, and the individual appellants, explained the delay as follows. NEHAWU's offices were closed for the 2017 December holiday season and reopened on 10 January 2018. Some of the individual appellants went to their respective hometowns throughout South Africa and, therefore, she could not consult with them or obtain instructions. Mr Lindokuhle Mzimela, NEHAWU's regional organiser, managed to consult with the individual appellants later in January 2018 and gave instructions to the legal representatives on 23 January 2018. On 29 January 2018 counsel was briefed to consider the individual appellants' dispute; to provide legal advice on the process to follow; and to lodge a dispute with the Labour Court. Counsel requested certain undisclosed information and only consulted with NEHAWU and Ms Nkosi on 28 February 2018. Ms Nkosi had a further consultation with counsel sometime in March 2018 following her endeavour to locate some of the individual appellants who had moved out of the Gauteng Province.

[5]

The appellants referred their retrenchment dispute to the Labour Court on 11 April 2018, approximately 163 days outside the time allowed, through motion proceedings as opposed to delivering a statement of claim. On or about 09 May

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2018, Metrofile and Infovault served on the appellants a notice of an irregular step in the proceedings. They contended that rule 6 of the Rules for the conduct of proceedings in the Labour Court provided that the referral of an unfair dismissal dispute, based on operational requirements, in terms of s 191(5)(b) of the LRA, had to be instituted through a statement of claim and not by way of motion proceedings. The appellants were urged to remove the cause of complaint within a period of 10 days.

[6]

Following an exchange of correspondence between the parties the appellants reconsidered their position and withdrew their application on 24 May 2018. They served and filed their statement of claim on 29 May 2018, almost 211 days outside the time allowed, together with the application for condonation. The period of delay is approximately six months calculated from the date the certificate of outcome of conciliation was issued to the date the statement of claim was filed.

The judgment of the Labour Court:

[7]

The Labour Court found that the period within which the referral of the dispute ought to have been made to it, 01 August 2017 to 20 November 2017, was not essential in assessing the delay because NEHAWU had incorrectly referred the dispute to arbitration. The court was also of the view that the inactivity over the Christmas season ought not to be subjected to heightened scrutiny as people do take vacation. The court noted that by 10 January 2018, when NEHAWU reopened its offices for business, it must have been clear to it that its statement of claim was out of time and required urgent attention. A period of three months lapsed before the ill-conceived application in terms of Rule 7 was lodged with the Labour Court. The court found that the explanation for this delay was woefully inadequate.

[8]

The Labour Court noted that the appellants had failed to address their prospect of success in their founding papers. On the basis of the trite principle, that in motion proceedings a party stands or falls by its papers, the Labour Court declined an invitation to consider the statement of claim for purposes of assessing the appellants' prospects of success because the statement was not

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incorporated by reference into the condonation affidavit. The court concluded that the appellants had not shown any prospects of success and that the prejudice that they stood to suffer did not outweigh other factors. As already alluded to, the court refused to condone the late filing of the appellants' statement of claim and dismissed the claim.

The grounds of appeal:

[9]

The appellants attack the judgment of the Labour Court on five primary grounds, namely, that it erred in finding: that the explanation for delay for the period commencing 10 January 2018 to 11 April 2018 was woefully inadequate; that there was inactivity on the part of the appellants during the period in question; that the appellants had no prospects of success; and that it was not pertinent to have regard to the statement of claim. The appellants further argued that insofar as the parties had exchanged pleadings, this signified that...