THE LABOUR COURT OF SOUTH AFRICA,
HELD AT CAPE TOWN

Reportable
CASE NO.: C457/2020

In the matter between:

THEMBAKHAZI MCINZIBA									 Applicant

and

TRANSNET SOC LIMITED								     Respondent

Heard: 7 July 2021

Judgment date: This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 10h00 on 14 September 2021

Summary: Condonation sought for a statement of case filed more than a year late for reasons relating largely to financial constraints. Condonation refused.

JUDGMENT

GANDIDZE AJ

Introduction

[1]	The applicant referred an alleged automatically unfair dismissal case to this court more than a year late and seeks condonation. The respondent opposed the application.

[2]	The condonation application was filed on 3 November 2020 and the Statement of Case was filed on 27 November 2020. In other words, the condonation application preceded the Statement of case. On the papers the respondent argued, in limine, that filing a condonation application in respect of a statement of case yet to be filed constitutes an irregular step and therefore the application was defective and must be dismissed on that ground alone. For this position, reliance was placed on the Uniform Rules of Court which apply in the High Court. In argument the court was advised that the respondent was no longer persisting with this point. I nevertheless deem it fit to deal with this point in this judgment.

[3]	The Uniform Rules of Court provide that where an irregular step has been taken, the remedy available to a litigant is to bring an application to set aside the irregular step. The respondent did not file such an application.

[4]	More importantly, the procedures to be followed in this court are regulated by the rules of this court and only in those circumstances where these rules are silent on a specific issue should regard be had to the Uniform Rules of Court. But even then, this court has the powers to adopt any other procedure that it deems appropriate to ensure the speedy resolution of a dispute.

[5]	The logical sequence of filing ought to have been for the statement of case to be filed first, followed by a condonation application, alternatively for the two pleadings to be filed simultaneously. In this case the condonation application preceded the Statement of Case. To close the door for an applicant simply because the condonation application preceded a Statement of Case is my view an overly technical approach. This court is one of equity. What is trite is that a condonation application must be filed as soon as it is realized that one is required and this is what the applicant did. I have also taken into account that the respondent did not suffer any prejudice as a consequence of the condonation application preceding the statement of case. I would have dismissed the in limine point.

The test in condonation applications

[6]	It is by now established law that in such matters, an applicant is required to specify the degree of lateness, offer a full explanation for the delay, demonstrate prima facie prospects of success, address the prejudice to both parties and in general show good cause for failing to comply with the prescribed time frames. There are further principles that it is a matter of fairness to both parties, that the respondent’s interest in finality should not be overlooked and the court has a flexible discretion in such matters, to be exercised judicially. I will apply these principles to the facts of this case.

The extent of the delay

[7]	Following her dismissal, the applicant referred an unfair dismissal dispute to the relevant bargaining council. The matter was unsuccessfully conciliated on 18 September 2019. Thereafter the matter was referred for arbitration.

[8]	Two days before the set down date for arbitration, the applicant instructed her current attorneys of record who briefed counsel. Counsel advised that the matter ought to have been referred to this court after failed conciliation. The applicant states that the arbitration could not be cancelled at that late hour given the bargaining council’s practice to penalise late cancellations. The consequence was that when the matter was heard on 24 October 2019, there was no opposition to point in limine raised by the respondent that the bargaining council lacked jurisdiction to arbitrate the matter. A ruling to that effect was issued on the same day.

[9]	The applicant submitted that the referral to this court ought to have been made within 90 days calculated from 24 October 2019. The respondent disagreed and submitted that the 90-day period ought to be calculated from 18 September when the certificate of outcome was issued.

[10]	But for the SAMWU obo Manentza v Ngwathe Local Municipality decision, l would have agreed with the respondents submission that the 90 days is calculated from when the certificate of non-resolution is issued. Section s191(11)(a) says so. It provides as follows:

(11)(a) The referral, in terms of subsection (5)(b), of a dispute to the Labour Court for adjudication must be made within 90 days after the council or (as the case may be) the commissioner has certified that the dispute remains unresolved.

[11]	However, in the decision that l have cited above, the court held as follows:

[28]	…. On a proper interpretation, s191(5) of the LRA entitles an employee to refer an unresolved unfair dismissal or unfair labour practice dispute for arbitration to the CCMA or a bargaining council, in terms of subsection (a) thereof, or for adjudication to the Labour Court, in terms of subsection (b) thereof, upon the occurrence of either of two events: the issue of a certificate of non-resolution of the dispute or the expiry of the 30 day period from either the CCMA’s or the bargaining council’s receipt of the referral. The effect of this interpretation is that the occurrence of either of these two events entitles an employee to request the bargaining council concerned or the CCMA to arbitrate the dispute in terms of s191(5)(a) of the LRA or to refer the dispute to the Labour Court for adjudication in terms of s191(5)(b) thereof.

[29]	Section 191(5) of the LRA provides for the occurrence of either of the events: the issue of a certificate or expiry of 30 days from receipt of the referral as an objective fact which founds the employee’s right to proceed to arbitration or adjudication. The employee’s entitlement to refer the matter to arbitration or adjudication as contemplated in s191(5)(a) and (b) of the LRA respectively, does not arise from any election on the employee’s part as contended for by the appellant, but rather from whichever of the two jurisdictional events occurs first in sequence of time. Thus, where conciliation takes place under the auspices of the CCMA or a bargaining council within the 30-day period contemplated in s191(5) of the LRA, and a certificate of non- resolution is issued within that period, the employee’s right to refer the dispute to arbitration or adjudication will be triggered by the issue of the certificate as the jurisdictional event conferring this right. In this case, the subsequent expiry of the 30-day period will play no role in founding the employee’s right to refer the dispute to arbitration or adjudication.

[30]	Similarly, where the 30-day period contemplated in the subsection lapses without the holding of a conciliation proceeding and the CCMA or a bargaining council certifying that the dispute remains unresolved, the lapse of the 30-day period will form the jurisdictional trigger entitling the employee to refer the dispute to arbitration. This right, having accrued to the employee upon the lapse of the 30-day period contemplated in s191(5) of the LRA will not be affected by the convening of any subsequent conciliation proceedings or the issue of a certificate of outcome consequent thereupon. As correctly pointed out by the Municipality, in the latter scenario, the issue of the certificate would have no effect in law as it would be superfluous to the employee’s right to refer the unfair dismissal or unfair labour practice dispute to arbitration since this right would have already accrued to the employee on the lapse of 30 days from the date that the CCMA or the bargaining council had received the referral. (own underlining)

[12]	Later on in the judgment, the court concluded that the 90-day period for referring a matter to this court for adjudication is calculated from whichever of the two jurisdictional events occurs first in sequence of time. To recap, these events are either the lapse of 30 days after the referral of the matter for conciliation (or the extended conciliation period) or the issue of the certificate of outcome. This court being a lower court, l am bound by this decision.

[13]	The next step is to establish which of these two jurisdictional events occurred first.

[14]	The applicant did not specify the date that she referred the matter for conciliation. The referral form itself did not form part of the papers before court. In the answering affidavit to the condonation application, it is stated that the referral for conciliation was made on 17 July 2019. I assume this date was extracted from the certificate of outcome which appears to have been omitted as an attachment to the answering affidavit. In reply, the applicant does not take issue with 17 July 2019 as the date of the referral for conciliation.

[15]	On the authority of SAMWU obo Manentza cited above, and in the absence of any indication that the conciliation period was extended, the 90 (ninety) daysfor referring the matter to this court ought to be calculated from 16 August 2019, which is when 30 days after the referral for conciliation lapsed. 16 August 2019 is earlier than 18 September 2019 when the certificate of outcome was issued. Therefore, the 90 days for referring the matter to this court expired on 14 November 2019. The referral was made on 27 November 2020, and that was more than a year out of time.

[16]	The applicant correctly concedes that the delay is inordinately long.

The explanation for the delay

[17]	In explaining the delay, the applicant states that even though she was dismissed in June 2019, she last earned a salary from the respondent more than a year prior. Following her dismissal, she utilized some of the pension pay out proceeds to pay for legal advice which she sought in the period preceding the set down date for the arbitration. SATAWU, her union, incorrectly referred the matter to arbitration following failed conciliation.

[18]	Even though l have found that the 90 days for referring the matter to this court ought to be calculated from 16 August 2019, I accept as reasonable and acceptable the explanation for the delays up until 24 October 2019. The period that the applicant needs to explain is from October 2019 when she was made aware that the dispute ought to have been referred to this court following failed conciliation. She received this advice 2 (two) days before the arbitration set down date and again on 24 October 2019 when the jurisdictional ruling was issued.

[19]	By then the applicant had lost more than 60 days but she still had about 23 days to refer the matter to this court and that would have been within the 90- day period.

[20]	After the jurisdictional ruling was issued, the applicant consulted with her attorneys of record, who explained the financial implications of pursuing the matter. She states that she was desirous to prosecute the matter in this court but had financial constraints. Her hopes of securing alternative employment which she had hoped would fund the litigation were dashed. The lock down from March 2020 compounded the situation, coupled with the fact that prospective employers have a bias against dismissed employees, especially former employees of the respondent. Realising that the clock was ticking and that she was unlikely to secure other employment in the near future, in October 2020 she resolved to approach the same attorneys who had advised her in the period preceding the arbitration. She was advised to refer the matter to this court on her own. She states that she could not do so as she was suffering from major depression, which she says was brought on by a toxic work environment at the respondent. Ultimately, an agreement was struck that the attorneys would at least file the statement of case and this was done in November 2020.

[21]	In my assessment, the delay has not been adequately or reasonably explained. An explanation that one lacked the financial means to pursue a matter cannot on its own be reasonable and acceptable. As pointed out on behalf of the respondent, most dismissed employees face a similar predicament and granting condonation on that basis will set the precedent that all similarly circumstanced employees must be treated the same. This is untenable.

[22]	This is not to say that indigent litigants are deprived of the right to pursue matters whenever they refer matters late. Each case must be decided on its own facts.

[23]	There are several organisations that assist indigent litigants on a pro bono basis in this country. There is a SASLAW pro bono office at every seat of this court. There is the Legal Aid Clinic. The Law Society (now the Legal Practice Council) also refers indigent litigants to attorneys for assistance on a pro bono basis if they qualify for assistance. In this case none of these organisations or similar organisations were approached for assistance. The applicant had engaged attorneys who would have been aware of these options and ought to have alerted her to these options when she indicated that she did not have the financial means to retain them to advance the matter.

[24]	A further consideration is that the applicant was a member of SATAWU, which assisted her to refer the matter for conciliation. There is no explanation on the papers why the applicant did not request or allow her union to refer the matter to this court, especially in circumstances where she did not have the financial means to fund the litigation.

[25]	There was also the option for the applicant to refer the matter to this court on her own. Even if she suffered from depression, she was well enough to give instructions to her attorneys in the period preceding the arbitration set down date. She consulted with her attorneys again after the jurisdictional ruling was issued. She must have consulted with her attorneys again in October or November to give instructions to facilitate drafting the Statement of Case. In other words, during this period she was not so indisposed that she could not have completed the pro forma Statement of Case which is made available to unrepresented litigants by the officials of this court. She had the benefit of legal advice that her case was one of automatically unfair dismissal on account of having made protected disclosures. In any event, completing the pro forma form does not require one to be well-versed in legal processes and stratagems as submitted on her behalf. She occupied a fairly senior position at the respondent and would have completed this pro forma document with ease. To her own detriment, she elected to sit on her hands until she could find the finances to pursue the matter.

[26]	The applicant states that the matter was referred to this court after she entered into an arrangement with the attorneys who assisted her in October 2019 when the arbitration set down date was impeding. The first problem is that the nature of the arrangement entered into has not been disclosed to this court with the consequence that the court is unable to assess whether that same arrangement could not be entered into in 2019 already.

[27]	But perhaps even more problematic is that the attorneys were approached in October 2020 and yet it took another month for the Statement of Case to be drafted and filed. The same averments made in the founding affidavit in support of the Statement of Case are repeated in the Statement of Case and in my view, there is no reason why both pleadings were not filed simultaneously. The attorneys were already aware that the Statement of Case was long overdue and despite knowing this, it took another month to draft it. This is in my view unreasonable.

[28]	Having considered the explanation, it is fair to say that there is absolutely no information placed before this court to show what attempts or efforts the applicant made, in the 13 months after the bargaining council found that it lacked jurisdiction to arbitrate the matter, to progress the matter.

[29]	In addressing the importance of the case, she states that the matter is of importance as whistle blowers must be protected and that certain individuals at the respondent must be held to account for their irregular conduct. But in the 13 months she took absolutely not steps to ensure that these individuals are held to account for their alleged wrong doing. She states that other employees of the respondent who were subjected to ill-treatment approached the Public Protector and other similar bodies to get justice. She did nothing of the sort.

[30]	The explanation for the delay is vague, unreasonable, unacceptable, and wholly inadequate. There is a reason why the Labour Relations Act sets time limits to refer various disputes to various forums. It cannot be that a litigant who wishes to pursue a matter can take as long as they wish until one day they come up with a plan of action. If this were to be allowed, it would defeat one of the objectives of the Labour Relations Act, which is to have labour disputes resolved speedily. In the absence of a reasonable and adequate explanation for the delay, this should be the end of the inquiry. I nevertheless consider the applicant’s prospects of success in case my conclusions on the explanation for the delay are assailable.

Prospects of success

[31]	The applicant alleges that her dismissal is automatically unfair as she was dismissed for making protected disclosures. To substantiate this case, the applicant set out in great detail her employment history with the respondent, followed by a sequence of events on how the dismissal came about. Only those facts that are germane to the issues to be decided will be related.

[32]	The applicant commenced employment with the respondent in 2008, as a people development practitioner, based in Bellville, Cape Town. In 2013, she moved to East London in the Eastern Cape after she successfully applied for the position of Manager: Recruitment and Training.

[33]	Whilst in East London, in 2015 the applicant reported irregular activities to senior managers. As to the nature of the irregular activities, the applicant states that:

The issues l reported were wide ranging. I raised, among other things, issues pertaining to irregularities and flouting of policies of the employer, the dysfunctionality of the Human Resource Department, the flouting of human resource policies and procedures, the abject poor performance of the port, the lack of strategic leadership, the lack of vision concerning business attraction and retention, the reasons for the delay for certain projects and the tyrannic leadership style of the port manager.

[34]	When nothing was done to address the matters she raised, the applicant escalated matters to then Group Chief Executive (GCE) Mr. Gama (Gama). She did not receive a response.

[35]	Applicant states that she resisted instructions which were given by Brown and Wessel which were contrary to policy. She was subjected to inhumane ill- treatment and was labelled a troublemaker for reporting matters to Gama. She was diagnosed with a major depression disorder, and at some point, she was admitted to a psychiatric hospital for 3 weeks. Her medical reports submitted to the respondent were not confidentially handled. The recommendation of the treating psychiatrist was for a transfer to an alternative work environment to be implemented but this was resisted by the respondent.

[36]	She followed up with Gama’s office in 2016 and she was informed that an investigation had been commissioned. The investigation was conducted and she was informed that she will be transferred to Saldanha. This was implemented in July 2016.

[37]	At Saldanha port, she was not welcomed as no office had been prepared for her. The transfer to Saldanha was Brown’s machination so that she could continue to be ill-treated by people who were acting on Brown’s instructions.

[38]	She quickly realized that the same activities which she had reported to management whilst in East London were prevalent at Saldanha port. The HR Manager lacked work ethics and professionalism and that confidentiality was a non-existent concept to the HR Manager. She also raised concerns against the port manager. She reported all these issues to the HR General Manager, as well as the Wellness Manager.

[39]	Her health further deteriorated within a short time of arriving at Saldanha port.

[40]	At some point her salary was stopped without following any process and it was re-instated after Gama intervened again.

[41]	At another point she acted in a senior position whilst the incumbent was on sick leave but she received no acting allowance in line with the respondent’s policies and this was orchestrated by Brown.

[42]	As far as the applicant is concerned, the persecution was due to the fact that she had reported irregularities to Gama.

[43]	The managers that she had reported these issues to did nothing, prompting her to again escalate matters to Gama in 2017. Another investigation was conducted and the applicant received verbal feedback acknowledging that things were not working well at the Saldanha site. One of the investigation recommendations was for the applicant and one Manuel, a manager in HR, to be sent on a conflict resolution course. The applicant states that she was not satisfied with the outcome of what she refers to as a ‘purported investigation’ as she was not furnished with a written investigation report.

[44]	The applicant states that as nothing had been done to address the issues she raised, in December 2017 to again followed up with Gama. She received no response.

[45]	In January 2018 the applicant applied for income continuation benefits. The parties are in dispute on what the conclusion of that application was (risk pool investigation 2). On the one hand, the applicant understands the conclusion of that investigation to be that she was incapacitated due to the occupational problems that she experienced as a result of a toxic work environment and on the other hand the respondent submits that the risk pool administrators turned down the applicant’s application for further medical observation on the ground that she was fit to continue with her regular duties.

[46]	There is no document that is titled ‘risk pool investigation report’ and l have assumed that the letter from Old Mutual Corporate, dated April 2018, in connection with Income Protection Claim: TF Mcinziba is the report being referenced. It records the following, among others:

According to the insurance policy, to qualify for the disability benefit, the claimant needs to be totally incapable of performing her own or any alternative occupation with her own employer.

We have carefully considered all the medical information received as well as the information received from the employer. The Independent Psychiatrist indicates that the claimant currently has no psychiatric symptoms and that there is no evidence of other psychiatric syndromes. She presents with an excellent prognosis, has been adherent to treatment and has had an excellent response to treatment. The treating Psychiatrist was also of the opinion that the claimant would possibly be capable of returning to work immediately if she is transferred to Cape Town.

The information submitted does not indicate that the claimant’s condition is of such a nature that it renders her unable to perform tasks of her own occupation or an alternative occupation.

The independent Psychiatrist indicates that the claimant has occupational problems which could be resolved within human resource management. The employer may need to follow up on this recommendation and consider addressing this matter in terms of their internal human resource or industrial relation policy.

[47]	The applicant states that the recommendation to be moved to Cape Town was not implemented and instead, there was insistence that she returns to Saldanha port, so that the persecution could continue. At this stage l point out that from what is set out in the letter that l have quoted above, the move to Cape Town was merely a suggestion by the applicant’s treating Psychiatrist. The recommendation of the Independent Psychiatrist was for HR to attempt to address the occupational problems faced by the applicant in terms of their policies and Old Mutual made a recommendation for this route to be explored. I therefore reject the applicant’s version that the only recommendation was for her to be transferred to Cape Town.

[48]	There is a further observation to be made from the contents of the letter quoted above. This is that the applicant had no psychiatric symptoms and that she had respondent excellently to treatment. It was on this basis, among others, that the application for benefits was declined. The applicant was fit to continue with her duties.

[49]	At some point the applicant resolved to escalate matters to the Minister of Public Enterprises but when she did this is in dispute. The date of escalation to the Minister is significant because the applicant contends that she was called to an incapacity inquiry because she contacted the Minister. The respondent denies this and submits that the applicant contacted the Minister after she was served with a notice to attend the incapacity inquiry.

[50]	The applicant states that she contacted the Minister in May 2018. However, even after l invited Mr. Gcelu who argued her case on the hearing date to refer me to the relevant document, he was unable to do so. Instead, he submitted that the applicant referred the matter to the Minister on 21 May 2018 but even then, he was unable to refer the court to the relevant document in support of that version.

[51]	The heading of the applicant’s memorandum to the Minister records the date as 16 August 2018. However, the end of the memorandum records that it was electronically signed on 16 April 2018. Both these dates do not shed light on when the applicant wrote to the Minister. 

[52]	In the replying affidavit filed in support of the condonation application, the applicant states that the 16 August 2018 memorandum was not the first correspondence she addressed to the Minister but she does not give a version on when her first correspondence to the Minister was.

[53]	The respondent’s version is that on 14 September 2018, it again instructed the applicant to report for duty so that the April 2018 risk pool recommendations (referred to above) could be implemented. There was no response from the applicant.

[54]	On 11 October 2018 the applicant was informed that an incapacity inquiry would be convened on 17 and 18 October 2018. On 16 October 2018 the applicant informed the respondent that she would not participate in the inquiry.

[55]	The Minister responded to the applicant in December 2018, informing her, inter alia, that the matter was referred to his office on 16 October 2018, and that the Board of the respondent was invited to respond thereto.

[56]	It cannot be ignored that the Minister placed it on record that the matter was referred to his office on 16 October 2018. This must mean this is the date that the applicant wrote to the Minister attaching the memorandum dated August 2018, otherwise where does the Minister get the 16 October 2018 date? I must also point out that this is the day that the applicant informed the respondent that she would not participate in the incapacity inquiry. In my assessment, the more probable version is that the applicant wrote to the Minister on the same day that she informed the respondent that she would not participate in the incapacity inquiry.

[57]	In making that finding, l am alive to the applicant’s submission that the initiator of the incapacity inquiry and arguably the incapacity inquiry chairperson expressed the opinion that the applicant was called to the incapacity inquiry because she referred an internal matter to an external party. I am not bound by these opinions and am at liberty to make my own findings based on the facts as presented to the court.

[58]	Returning to the Minister’s response to the applicant, she was informed that according to the respondent’s Board, she failed to report for duty on 7 May 2018 to allow for the risk pool recommendations to be implemented. Since she had exhausted all her sick leave days, she had been placed on unpaid leave and that a notice to attend an incapacity hearing will be issued. It is unclear when the Board wrote to the Minister responding to the applicant’s allegations but given my findings above, it could only have been on or after 16 October 2018, which is when the matter was brought to the Minister’s attention. It also appears, from what is set out above, that when the Minister responded to the applicant in December 2018, there was already an outcome of the incapacity inquiry but presumably the Minister was unaware of this.

[59]	The applicant was also informed that documentation proving that remedial action had been taken after she raised issues whilst in East London and at Saldanha were shared with the Minister and that in the absence of additional concrete evidence, the matter could not be taken any further. The applicant interprets this feedback to mean that there was merit to her allegations of irregularities. I return to this issue below.

[60]	The incapacity inquiry report is dated 6 November 2018 but it is common cause that it was only shared with the applicant in June 2019.

[61]	The chairperson of the incapacity inquiry found that the inquiry was convened because the applicant had approached the Minister. At the same time, the chairperson was of the view that the respondent’s case was one of poor performance as opposed to ill-health. The applicant disputes the version that she absented herself from work each time issues about her performance were raised and that the disclosures she made was the main and only charge for purposes of the incapacity inquiry. The incapacity inquiry notice does not form part of the papers before court. Other than to point out that the findings of the incapacity inquiry chairperson on the reasons for holding the incapacity inquiry are mutually exclusive, l will make my own findings, on the facts available, on the applicant’s prospects of success in pursuing the case that she has put up against the respondent.

[62]	Unaware that the incapacity inquiry had been concluded, in December 2018 the applicant wrote to Gama again but received no response.

[63]	On the strength of the incapacity inquiry outcome, the applicant’s employment with the respondent was terminated in a letter dated 20 June 2019, 8 (eight) months after the incapacity inquiry was instituted. The letter of termination was issued 7 months after the incapacity inquiry report had been finalized.

[64]	The applicant submits that she could not return to work due to the respondent’s refusal to transfer her to another site or to a different department. I have already found that there is no merit to this contention by the applicant. Her treating psychiatrist had a view and the independent psychiatrist had a different view. There is no document that l have seen which categorically states that a transfer to Cape Town in 2018 was the only remedy.

[65]	The applicant argues that she was subjected to an incapacity inquiry, an occupational detriment, because she had made protected disclosures. The first problem with this submission is that on her own version, she first made the alleged protected disclosures in 2015, whilst at the East London port. This is also when she reported these issues to senior management at the respondent. On her own version, her persecution started immediately thereafter. She could have invoked the provisions of the Protected Disclosures immediately thereafter to address the victimisation that she alleges she was subjected to. The dismissal was effected in 2019, 3 (three years) later. This lapse in time is not explained by the applicant and is significant for purposes of deciding how her dismissal came about.

[66]	Then the applicant states that she was dismissed because she escalated matters to the Minister’s office, as conceded by the initiator of the incapacity inquiry and confirmed by the incapacity inquiry chairperson. To the extent that the initiator and the incapacity inquiry chairperson made the alleged concession and findings respectively, l disagree. No shred of evidence was placed before this court, even after l probed, on when the applicant escalated the matter to the Minister’s office. The Minister’s response of December 2018 records that the matter was brought to his attention on 16 October 2018. This was 5 days after the applicant was informed of the incapacity hearing. That the Minister informed the applicant in December 2018 that the Board indicated that it would institute an incapacity inquiry does not mean that it had not yet been instituted. As it turned out, the incapacity inquiry report was already in existence at the time that the Minister wrote to the applicant in December 2018.

[67]	The applicant argues that the respondent’s Board admitted to the Minister that the activities complained of were prevalent at both the East London and Saldanha sites. I have carefully looked at the Minister’s communication to the applicant recording the Board’s response to her concerns and cannot find such an admission by the Board. At best for the applicant, which she correctly points out, is that the Board had implemented remedial action at both the East London and Saldanha port following her concerns. It is correct that remedial action was implemented, but this is a far cry from conceding that there were irregularities. But more importantly, the applicant was informed that in the absence of additional information, her concerns could not be taken any further. That was firm confirmation that she had not provided sufficient information to warrant a further investigation. If this response was not satisfactory to her, she could have furnished additional information as suggested to her. She did not do so.

[68]	The applicant complains that she was deprived of an opportunity to state her case on the recommendations of the incapacity inquiry chairperson. She argues that the respondent had an outcome in mind and went through the motions to justify the termination of her employment. I cannot take this complaint seriously considering that the applicant was invited to the incapacity inquiry, to give a version, but she arrogantly chose not to do so. In her own words, ‘I did not attend it because l was fully aware that it was a kangaroo court which was designed to formalize the termination of my employment’. In my view, the applicant was unnecessarily overly suspicious of the process. If one has regard to the contents of the incapacity inquiry outcome, the chairperson in fact sympathized with her case even in her absence.

[69]	Even though good practice required the respondent to consult her on the recommendations of the incapacity inquiry chairperson, on the facts of this case the respondent did not act unreasonably by not consulting her. On the probabilities, she would have snubbed the opportunity in the same manner that she ignored the invitation to participate in the incapacity inquiry.

[70]	In conclusion, the applicant exhorts the court to take into account the information publicly available about the shenanigans that took place at the respondent during the period in question. This is that there was corruption and utter disregard of good corporate governance especially with procurement processes and it is these same issues which she had observed and disclosed. Gama to whom she had escalated matters was himself charged and found guilty of committing gross irregularities and not withstanding this, the Board re- instated him. The chairperson of the Board admitted during the Zondo Commission of Inquiry that the Board acted recklessly in re-instating Gama. In hindsight she realises that the ill-treatment she was subjected to was sanctioned from higher echelons at the respondent as they were all active participants in the irregularities which she reported. I am unable to make findings against the respondent, as l was invited to do, based on such bald statements.

[71]	In addition to the findings l have made above, there is merit to the respondent’s contention that the applicant could not have been dismissed for making a protected disclosure when on her own version she could not attend work over for an extended period due to ill-health. At the time of her dismissal, she had not been at work for a prolonged period. She submitted sick notes to cover the period May 2018 until October 2018 when she was called to an incapacity inquiry. That was more than a year out of work. She was requested and agreed to report for duty but she did not report. The instruction to report for duty was repeated in September 2018 and she did not comply.

[72]	Before the incapacity inquiry was instituted, the applicant was allowed to take paid sick leave and thereafter she was placed on special leave. Even though her salary was stopped at some point, the respondent continued to contribute towards her other benefits. Her work had to be re-distributed to other employees, which according to the respondent had resulted in low staff morale. This situation could not continue indefinitely.

[73]	The applicant confidently and arrogantly submits that she ought to have been transferred to the port in Cape Town. The problem is that the respondents version that there were no suitable positions in Cape Town is uncontroverted. Had the applicant shown interest in the incapacity inquiry, that would have given her the platform to make representations on suitable positions elsewhere, including in Cape Town. She made a conscious decision not to participate in that process. If she was aware of suitable positions in Cape Town, she could have volunteered this information. On the information before court, she made no attempt to follow up with the respondent on the outcome of the incapacity inquiry. She was not interested in that process and was content to be kept on the respondent’s books as an employee even though she was not making contribution.

[74]	The applicant does not take issue with the respondent’s contention that from 2015 to 2018 she was absent from work for a total of 397 days. She accepts that this is an ordinate long period for an employee to be absent from work but somehow argues that the respondent ought to have addressed her concerns as any responsible employer would have done. She was invited to return to work so that the issues could be addressed and she refused.

[75]	She did not report for duty in the 8 months (or even longer) preceding the termination of her employment and in my view, the respondent was entitled to finalise the matter one way or the other. It could not be held at ransom and keep an employee it had last seen more than a year ago on its books. She agreed to return to work in May 2018 but did not report. Instead, she wanted a transfer letter to Cape Town, as of right, which she could not do.

[76]	As to the applicant’s contention that she could not return to work at Saldanha port as her relationship with Manuel had deteriorated, the incapacity inquiry report refers to an arrangement made for the applicant to return to work on 7 May 2018 and to report to Captain Jones instead. The applicant still did not return to work and insisted that she be transferred to Cape Town. This situation subsisted until her dismissal on 20 June 2019 when her employment was terminated.

[77]	The incapacity chairperson recommended that the applicant be removed from Saldanha port to the Cape Town port if a vacancy that matches the applicants’ experience and qualifications exist. A similar recommendation was implemented for the applicant in 2016 when she was transferred from East London to Saldanha port. The further recommendation of the incapacity chairperson was that if no such placement is possible, then the respondent could terminate with immediate effect. The letter of termination sent 8 months later makes reference to the incapacity outcome report and advises of termination with immediate effect. This suggests that placement in Cape Town was not possible.

[78]	In my finding, on those facts alone, this was a clear case of incapacity. Where an employee has not reported for duty for a prolonged period and continuously submits sick notes, an employer may institute an incapacity inquiry. She could have participated in the incapacity inquiry and suggest alternatives. She elected not to do so. The respondent’s version that there were no vacancies in Cape Town remained undisputed.

[79]	The applicant vigorously disputes that she was incapacited as alleged. If that is so, the question that arises is whether the respondent was obliged to keep her on its records as an employee despite the absences for long periods of time. I say not.

[80]	There is another contention by the respondent that warrants consideration. This is that the applicant’s assertion that she made a protected disclosure is superficial and not supported by evidence. The respondent argues that there is a bald assertion that whilst in East London, her supervisor wanted her to enlist the services of a service provider without following a tender process. As regards Saldanha, the details of the alleged wrong doing have not been set out. The memorandum to the Minister lists grievances but does not disclose any wrong doing. The allegation about enlisting the services of a service provider without following a tender process is not contained in the memorandum to the Minister.

[81]	In my assessment, there is merit to the respondent’s contention that the issues raised by the applicants are best described as grievances than irregularities which constitute protected disclosures. Above l reproduced the applicant’s own summation of the issues she raised in East London. She states that the same issues were prevalent at Saldanha port. Other than the allegation that Brown wanted her to appoint a service provider without following procurement procedures, the details of the rest of the alleged irregularities are glaringly missing. The court is unable to make an assessment, prima facie, whether the concerns or issues raised by the applicant constitute protected disclosures.

[82]	That she had provided insufficient information was brought to her attention by the Minister in December 2018. She was informed that unless additional information is submitted, the matter could not be taken any further. It does not appear that she ever submitted additional information to the Minister as requested. The allegations lacked sufficient detail for the matter to be taken further.

[83]	While the applicants claims that she was called to an incapacity inquiry and was later dismissed for making protected disclosures, at the same time she claims that the termination of her employment amounts to a constructive dismissal. The two versions are mutually destructive and cannot co-exist. If she is alleging constructive dismissal, she has come to the wrong forum.

[84]	In conclusion, l am of the view that the applicant has no prospects of success against the respondent in an automatically unfair dismissal case. This is yet another reason to refuse condonation.

Importance of the case

[85]	It was submitted on behalf of the applicant that the case was of importance because whistle blowers deserve to be protected and for this reason, the matter is of wider public significance. The applicant states that other employees of the respondent who were dismissed in similar circumstances will feel vindicated if the applicant gets redress from the court.

[86]	While l accept that whistle blowers are deserving of protection, it cannot be that employees who unreasonably refuse to report for duty for prolonged periods of time should be shielded from dismissal because they will claim to have been whistle blowers. The case that the applicant was subjected to an occupational detriment for making protected disclosures is extremely weak, as l have found. Then there is the problem that the applicant sat on the matter for more than a year and did not take steps to progress it. In my finding, fairness to both parties dictate that condonation should be refused.

Prejudice

[87]	The applicant states that the delays have not prejudiced the respondent which has access to both the documentation and personnel pertaining to the dispute. On the other hand, should condonation be refused, she will continue to be prejudiced.

[88]	The respondent is entitled to finality, which is a consideration not to be overlooked.

Conclusion and costs

[89]	In all the circumstances, l exercise the court’s discretion and refuse condonation.

[90]	In this court, costs do not follow the result and l intend to apply that principle taking into account that the applicant is an individual, coupled with the fact that she genuinely wanted to pursue the matter but that the principles applicable to condonation applications are against her.

[91]	In the circumstances l issue this order:

Order

1.	Condonation is refused.
2.	There is no order as to costs.

T Gandidze 
Acting Judge of the Labour Court of South Africa

Appearances:

For the applicants:		Mr. Gcelu
instructed by De Kerk & Van Gend Inc.

For the respondent:		Mr. Haffegee of Haffegee Roskam Savage Attorneys.