South Africa: Johannesburg Labour Court, Johannesburg

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no JR 2644/14

Heard: 22 June 2016

Delivered: 28 June 2016

JUDGMENT

VAN NIEKERK J

[1] This is an application filed in terms of s 189A (13) of the Labour Relations Act, in which the applicant seeks relief in respect of what she contends to be a procedurally unfair retrenchment.

[2] The applicant acknowledges that the application ought to have been filed within 30 days of her employer giving notice to terminate her employment. She has filed an application to condone the late filing of the present application. The 30-day period expired on 25 August 2014; the present application was filed only on 6 February 2015.

[3] The applicant initially referred an unfair dismissal dispute to the CCMA. On 23 September 2014, the commissioner dealing with the matter refused to issue a certificate of outcome on the basis that the employer party had previously referred a matter to the CCMA under a different case number, in respect of which a certificate of outcome had already been issued. The applicant contends that this ruling is incorrect. Be that as it may, the applicant’s legal representative thereafter addressed letters to the CCMA in an attempt to have what she considered to be an obvious mistake corrected. When the applicant’s legal representative later considered various options in relation to the review of the commissioner’s ruling, the applicant was advised that the present application ought to be brought, and that it was only at that stage that the representative became a way of the time limits prescribed by s 189A (17).

[4] The present application ought to have been filed within 30 days after the applicant received notice that her employment was to be terminated. That notice is given on 25 July 2014. The 30-day time period therefore expired on 24 August 2012. (The applicant incorrectly records the date as 5 September 2014, obviously ignoring the fact that in the Act, as opposed to the Rules, a ‘day’ is a calendar day). The delay is excessive. The explanation for the delay is curious- it appears to amount to no more than that when the applicant sought advice in relation to her legal options concerning a challenge to the commissioner’s ruling, she was advised to file the present application and are there to legal representative became the way of the time constraints and the at that stage. This is not an acceptable explanation. The time limits applicable to an application in terms of s189A (13) are well known. The fact that the applicant gave consideration to a remedy in terms of s 189A(13) only at a late stage she did, or that she was advised that stage to pursue that remedy, cannot be the basis for an explanation not to have brought the application timeously. Even if I were to grant to the applicant the benefit of the doubt in relation to the explanation for the delay in bringing this application, she has no prospect of success on the merits. This court has made clear on more than one occasion that the purpose of s 189A(13) is one that enables this court to supervise an ongoing retrenchment process or one that has recently been concluded; it is not a remedy that is available well after dismissals have been effected. The section intends to ensure that a fair process is followed; it is not a means to thwart retrenchment itself (see Insurance and Banking Staff Association v Old Mutual Services and Technology (2006) 27 ILJ 1026 (LC)). In the present instance, the applicant’s date of dismissal, as I have indicated, is 25 August 2014, a little short of two years ago. The irresistible conclusion to be drawn is that having abandoned her unfair dismissal claim, the applicant seeks redress in terms of s 189A (13), a provision ordinarily reserved for urgent intervention in a consultation process involving a significant number of employees. There is no basis, in these circumstances, for the court to intervene in the present dispute, and the applicant’s prospects of success are accordingly minimal, if they exist at all.

For the above reasons, I make the following order:

1.    Condonation for the late filing of the s 189A (13) application is refused.

2.    The application is dismissed.

ANDRÉ VAN NIEKERK

JUDGE OF THE LABOUR COURT

REPRESENTATION

For the applicant: Mr H Wissing, Henk Wissing Inc.

For the respondent: Ms V Reddy, Norton Rose Fulbright South Africa Inc.