Borotho v Medical Rescue Inernational (LC 29 of 0) [2002] LSLC 18 (24 October 2002)

IN THE LABO U R COU R T OF LESO T H O CA S E NO LC 29/00 HELD AT MA S E R U IN THE MATT E R OF: CEC IL I A BOR OT H O APPLI C A N T AND MED I C A L RE S C U E INTE R N A T I O N A L RE S P O N D E N T JUD G M E N T This matter concerns the alleged unfair dismissal of the applicant by the respondent on or around the 26th July 1999 for alleged unauthorised absence from work. The matter was launched on the 8th March 2000. Since it was lodged eight months after the dismissal, the Originating Application was accompanied by a condonation application. The respondent did not opposed the condonation application. The relevant law pertaining to prescription of unfair dismissal claims at the time that the cause of action arose was section 70(1) of the Labour Code Order 1992. That section provided that claims for unfair dismissal must be presented within six months of the termination of the contract of employment. Section 70(2) empowered the court to allow presentation of a claim outside the six months period if it is satisfied that the interests of justice so demand. In Khotso Sonopo .v. LTC LC67/95 (unreported) this court held that section 70 of the Code vests it with a discretion whether to condone an applicant’s failure to comply with the prescribed time limit. It is trite that a court vested with a discretion must exercise that discretion judicially. To enable the court to exercise that discretion a party in default must show a good cause why there was a failure to comply. It is for these reasons that the applicant herein accompanied her Originating Application with an application for condonation of the late filing of the Originating Application. It is however, evident from the record that this condonation application was never moved by or on behalf of the applicant. On the scheduled day of hearing the parties proceeded straight into the merits. The court has thus not been able to exercise its discretion whether to condone the late filing of the Originating Application or not. At this point the finding of Ramodibedi J in Lesotho Brewing Co. t/a Maluti Mountain Brewery .v. Lesotho Labour Court President and Another CIV/APN/435/95 (unreported) is relevant. At page 22 of the typed judgment the learned Judge had this to say: “As I read section 70(2) of the Labour Code Order 1992, I am of the firm view that the jurisdiction of the Labour Court in a case where a claim for unfair dismissal has prescribed only arises from that court actually granting condonation if satisfied that the interests of justice so demand. Conversely if no condonation is granted then the Labour Court has no jurisdiction in the matter. Accordingly I consider that by failing to expressly grant condonation in the matter the Labour Court denied itself jurisdiction in the matter and thus committed a gross irregularity by entertaining the matter in the absence of such jurisdiction.” It follows therefore, that in the absence of express condonation of the applicant’s late filing of the Originating application this court has no jurisdiction to determine the matter. This court however had the opportunity of hearing full evidence on both sides. Counsels had undertaken to file written submissions but only the respondent’s counsel obliged. Given that a condonation application has been filed we are of the view that this court should consider it and exercise its discretion accordingly so that substantive justice can be done to the merits of the case. The applicant’s application is supported by a sworn affidavit of the applicant herself. In considering the application for condonation this court is guided by the principles enunciated by Holmes JA in Melane .v. Santam Insurance Co. Ltd 1962(4) SA531(A) which he further developed in United Plant Hire (Pty) Ltd .v. Hills and Others 1976(1) SA717AD. The overriding requirement is that a party must show good cause and this is how Holmes JA stated the principle in Melane’s case: “In deciding whether sufficient cause has been shown, the basic principle is that the court has a discretion, to be exercised judicially upon consideration of all the facts and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive for that would be a piecemeal approach incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation.” In the United Plant Hire Ltd case which was quoted with approval by Ramodibedi J in the Lesotho Brewing Company case supra Holmes JA restated and further developed the principle as follows: “It is well settled that, in considering applications for condonation, the court has a discretion, to be exercised judicially upon consideration of all the facts; and that in essence it is a question of fairness to both sides. In this enquiry, relevant considerations may include the degree of non-compliance with the Rules, the explanation therefor, the prospects of success on appeal, the importance of the case, the respondent’s interest in the finality of his judgment, the convenience of the court and the avoidance of unnecessary delay in the administration of justice. The list is not exhaustive. These factors are not individually decisive but are interrelated and must be weighed one against the other; thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong.” It is common cause that the applicant was dismissed on the 26th July 1999. She filed the present proceedings on the 8th March 2000. This was a delay of under two months. It was not a very bad delay. His explanation is that she first referred the matter to the Labour Department for settlement and that the matter was only finalised there on the 22nd February 2000. According to the record before court the matter was referred to the Labour Commissioner on the 23rd August 1999, almost a month after the termination of the contract. There is no explanation why there was a delay of one month. Furthermore, the applicant proffers no explanation why the Labour Department could not finish its intervention before the lapse of the stipulated period of six months. If anything the record in particular annexure “LC1” to the Founding Affidavit points to the applicant’s union’s blameworthiness as reason for the Labour Commissioner not being able to act on the complaint timeously. It would appear therefore, that the reason for the delay lies solely at the door of the applicant and her union. Having heard evidence on both sides we are in a position to say that applicant has no case on the merits. Applicant was justly charged for absenting herself from work on a Saturday for which she had deliberately not signed for leave of absence. Her contention was that Saturdays do not count as holidays on full pay in terms of the Code and yet the practice at the respondent was to work seven days of the week. The respondent had obtained special permission as an essential service and it had been granted by the Labour Commissioner in terms of section 119(4) of the Code. The applicant had already previously been given final written warning for over staying her offs, which resulted in her being absent from work for two days. Her attempt to challenge the substantive fairness of her dismissal is therefore without merit. There is no point in pursuing her other allegation that the disciplinary panel was improperly constituted because she did not canvass it in her evidence. The totality of the evidence point to the inevitability of applicant’s dismissal this time round as she had previously been given the opportunity to improve. In the circumstances she quite clearly has no prospects of success. It is not, therefore, a matter that can justifiably be condoned. Accordingly, the condonation application for the late filing is refused and the case itself dismissed with costs on account of being time barred. THU S DON E AT MA S E R U THI S 24TH DAY OF OCTO B E R, 2002. L. A LETH O B A N E PRE S I D E N T C. T. POOP A ME M B E R M. MA K H E T H A ME M B E R I AG R E E I AG R E E FOR APPLI C A N T : FOR RE S P O N D E N T: MR PUT S O A N E M S SEP H O M O L O