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[2020] ZALAC 44
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Molosioa v Eskom Holdings Limited (Komati Power Station) (JA1/19) [2020] ZALAC 44; [2021] 4 BLLR 368 (LAC) (3 November 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case no: JA1/19
In the matter between:
HILDA
MOLOSIOA
Appellant
and
ESKOM
HOLDINGS LIMITED (KOMATI POWER STATION)
Respondent
Heard (via TEAMS): 3
November 2020
Delivered: By email to
the parties
CORAM: WAGLAY JP,
COPPIN JA et SAVAGE AJA
JUDGMENT
COPPIN JA
[1]
This is an appeal against the
judgment of the Labour Court (Kent AJ) dismissing a condonation
application for the late bringing of an application to review, in
terms of s 145 of the Labour Relations Act
[1]
(LRA),
an award of a Commissioner of the Commission for Conciliation
Mediation and Arbitration (CCMA), effectively, dismissing a
claim of
an alleged unfair labour practice perpetrated by the respondent.
[2]
During about January 2008 the appellant, having applied for an
advertised post, accepted
a written offer made to her by the
respondent of the position off “Business Process Advisor
(T12)”. While working in
the position, and during about June
2012, she became aware of an organogram that had been produced by the
respondent which indicated
that the position of “Business
Process Advisor (P12)” was vacant.
[3]
The appellant perceived this to be a reference to the position that
she had been appointed
to and sought an explanation from the Human
Resources Manager of the respondent. She was, essentially, advised
that the P12 position
was indeed vacant; that it was a different
position from the one she occupied and that it had existed all along;
that it required
registration with a professional body; that the
position she held at grade T12 was actually reflected on the
respondent’s
system as “office of business and
administration”; that she had been appointed to the position
that she had applied
for, which was at the T12 level; and that the
remuneration and benefits were in the line with that grade. She was
then given a
letter stating that she occupied the position of “Senior
Technician Quality Assurance (P12)” and that the conditions
of
service and salary remained unchanged.
[4]
In response, the appellant lodged a grievance, alleging that there
had been a unilateral
change in her terms and conditions of
employment. A meeting where the grievance was dealt with was held on
23 January 2013. The
chairperson of the meeting issued a
recommendation to the effect that the designation of “Senior
Technician Quality Assurance
(D12)” was “the best fit”
for the position occupied by the appellant in terms of job output,
task grade and qualifications.
[5]
Still not satisfied, the appellant launched a stage 2 grievance. The
meeting where
this grievance was dealt with was held on 2 September
2013 and it was chaired by a different person. In summary, the
chairperson
of this meeting concluded that there had only been an
error in the naming of the appellant’s position; that the
appellant
had been appointed to the T12 level as per the offer letter
in which the applicable remuneration and benefits were clearly
stated;
that the appellant received the remuneration and benefits
commensurate with the T12 position; and that the process the Human
Resources
Department followed, after being made aware by the
appellant of the problem, was fair and did not impact negatively on
any of the
appellant’s benefits.
[6]
Still not assuaged, the appellant referred an unfair labour practice
dispute to the
CCMA in terms of section 186 (2)
(a)
of the LRA.
In terms of this section, an “unfair labour practice”
means any unfair act or omission that arises between
and an employee
involving unfair conduct by the employer relating,
inter alia
,
to the demotion of the employee.
[7]
The appellant complained that she was appointed as business process
advisor, but had
been misled and had been appointed to a position
lower than that which she had applied for. It was alleged by her, or
on her behalf,
essentially, that she had applied for a position on
the PAO grade level (this refers to the previous grading system of
the respondent),
but had been appointed to the T12 level on the new
grading system, which, according to her, was lower than the PAO
grade. The appellant
alleged that on the PAO level she would have
been entitled to more benefits, including a higher salary and car
allowance. Essentially,
the further contention was that since the
appellant had been appointed to the position, designated in the offer
as “Business
Process Advisor”, she was actually appointed
on the POA level, or its equivalent, and that she was thus entitled
to the salary
and benefits commensurate with that level.
[7]
The Commissioner had to consider whether there had been an unfair
labour practice
as contemplated in section 186(2)
(a)
of
the LRA, and more particularly, whether the appellant had been
“demoted” as contemplated in that section. Having
heard
the evidence of the parties, the Commissioner concluded in his award
that the appellant had failed to prove an unfair labour
practice;
that it was not a matter within the CCMA’s jurisdiction and
that the written particulars of employment do not constitute
a
benefit within the definition of section 186(2) of the LRA. The
Commissioner also stated that the dispute was one in terms of
section
29 of the Basic Conditions of Employment Act
[2]
which was for the Department of Labour to resolve.
[8]
The appellant brought an application in the Labour Court to review
the Commissioner’s
award, contending, in essence, that the
Commissioner’s award did not fall within the bounds of
reasonableness; that the CCMA
had jurisdiction and that an unfair
labour practice (in this case a demotion) had been proved. Since that
application was brought
late, the appellant sought condonation. She
dealt somewhat cursorily with that aspect in her founding papers that
were initially
filed in the review application and attempted to
elaborate on that aspect in a supplementary founding affidavit which
was subsequently
filed, ostensibly, in terms of Rule 7 of the rules
of the Labour Court.
[9]
The court a quo considered and dismissed the application for
condonation on the basis,
firstly, that the appellant did not give a
satisfactory explanation for the delay in her founding affidavit and
secondly, because
the application for review had no prospects of
success. The court a quo did, however, grant the appellant leave to
appeal to this
Court.
[10]
In this Court counsel for the appellant, instructed by attorneys that
replaced the appellant’s
former attorneys, made submissions
foreshadowed in supplementary heads of argument that had been
submitted. The submissions were,
in essence, that the court a quo had
erred in refusing the appellant condonation; that it ought to have
dealt with the merits of
the review application and ought to have
reviewed and set aside the Commissioner’s award.
[11]
In respect of the condonation aspect, counsel argued that the court a
quo erred, not only concerning
the extent of the delay, but adopted
an inappropriate rigid and formal approach regarding compliance with
rule 7A (8) of the Labour
Court’s rules; that, in the interest
of justice, it ought to have taken into consideration the appellant’s
explanation
for the delay furnished in the supplementary affidavit
deposed by the appellant. Concerning the admissibility of that
affidavit,
counsel, essentially, submitted that since the respondent
had responded to the review application by delivering an answering
affidavit
without first invoking the High Court Rule for setting
aside the filing of the supplementary affidavit as an irregular
proceeding,
the court a quo ought to have found that the respondent
had condoned any noncompliance by the appellant with Rule 7(8).
Secondly,
counsel submitted that the court a quo erred in not finding
that the respondent’s answering affidavit had been delivered
late and that the respondent required condonation in that regard. In
respect of the merits, counsel submitted, in essence, that
the
appellant had established a “demotion” as contemplated in
section 186(2)
(a)
of the LRA and that the contrary finding of
the Commissioner was not reasonable.
[12]
Counsel for the appellant was adamant that this Court should finalise
the matter and not refer
it back to the court a quo to deal with the
merits.
[13]
In light of my view of this matter, it is not necessary to deal in
detail with the technical
issues raised by the appellant, save to
state in that regard that there is merit in the point that,
notwithstanding the wording
of Rule 7(8), a party need not
necessarily have to amend a notice of application in a review in
order to be able to file the supplementary
affidavit contemplated in
that Rule. As a matter of practice, the grounds of review are not
stated in the notice of application,
but are dealt with in the
founding affidavit. The notice relates to the relief or order that is
being sought, while a case for
that relief is to be made out in the
founding affidavit. The rules clearly anticipate, that once the
record of the proceedings
being reviewed, is made available, it may
be necessary to add to, or further refine the grounds, or basis on
which the relief,
stated in the notice of application, is being
sought, albeit without having to amend the notice of application or
notice of motion,
because the relief sought remains the same. Having
said that, in determining whether the filing of a supplementary
affidavit was
justified, every case has to be decided on its own
facts.
[14]
An applicant for condonation must make out a proper case for the
grant of that relief.
[3]
This
includes, not only giving a satisfactory explanation for the delay,
but showing that the applicant has good prospects of succeeding
in
the principal application. It is now trite that a strong explanation
may make up for weak prospects and vice versa, but also
that where
there are no prospects of success , no matter how good the
explanation for the delay, an application for condonation
should be
refused.
[4]
I accept that the
court a quo erred concerning the extent of the delay and that there
was an explanation for the short delay. However,
there would have
been no point in granting condonation if the review itself had no
prospect of success at all.
[15]
The appellant’s claim that she was demoted is misconceived. She
did indeed apply for the
position of “Business Process Advisor
PAO; Komati Power Station”. That is what appears on the
advertisement. The only
requirement for the job, according to the
advertisement, was indeed, “grade 12 +3 (to) 5 years related
experience”.
However, on 11 January 2008 she was, in writing,
offered the position of “Business Process Advisor (T12) in the
Risk Assurance
Group (Business Processors) at Komati Power Station”
and she accepted that offer. The offer gave details of the salary and
benefits that applied to that position. She could have refused that
offer on the basis that it was not the position she applied
for, but
she did not. She was accordingly appointed to the position that she
had been offered, at grade T12 level with the salary
and benefits
commensurate with that level. She in writing accepted that offer on
15 January 2008.
[16]
The appellant was never appointed to the position at POA level, or
for that matter on the P12
level. She never occupied such a position
at any stage and was not “demoted” from such a level to
the T12 level, assuming
that the T12 level is lower than the POA or
P12 level. The appellant always got the salary and benefits that she
was entitled to
on the T12 level, and which she had accepted out of
her own free will. Nothing was taken away from her that she might
otherwise
have been entitled to.
[17]
The conclusion of the Commissioner to the effect that the appellant
did not make out the case
of unfair labour practice, as contemplated
in section 186 (2) (a) of the LRA, clearly falls within the limits of
reasonableness.
The further conclusion by the Commissioner that the
CCMA did not have jurisdiction in those circumstances was perhaps an
unnecessary
one, but that did not detract from the reasonableness of
the main conclusion, namely, that an unfair labour practice, as
aforesaid,
was not proved.
[18]
There was clearly no prospect of the applicant showing that the award
of the Commissioner did
not fall within the bounds of reasonableness
and one cannot conclude that the court a quo erred in those
circumstances in refusing
the appellant the condonation that she
sought.
[19]
In the circumstances, the appeal stands to be dismissed. The
respondent did not seek any costs
from the appellant. Taking the law
and fairness into account this is not a matter where appellant should
be mulcted with costs.
[23]
The appeal is dismissed.
___________________________
P Coppin
Judge of the Labour
Appeal Court
Waglay JP and Savage AJA
concur in the judgment of Coppin JA.
APPEARANCES:
FOR THE
APPELLANT: Adv
Rito Mathevula
Instructed
by Mogale Inc. Attorneys
FOR THE
RESPONDENT: Mr D
Masher
of
Edward Nathan Sonnenberg Attorneys
[1]
Act 66 of 1995.
[2]
Act 75 of 1997.
[3]
See, inter alia
,
Melane v Santam Insurance Co Ltd
1962 (4) SA 531
(A) at 532C-F;
National
Union of Mineworkers v Council for Mineral Technology
[1999] 3 BLLR 209
(LAC) para 10.
[4]
National
Union of Mineworkers v Council for Mineral Technology
(see
previous footnote) para 10;
Colett
v Commission for Conciliation, Mediation and Arbitration
[2014] 6 BLLR 523
(LAC).