THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case No: JR566/23
In the matter between:
ZAMA MASEKO First Applicant
NNYAMBENI PATIENCE VHURUMO Second Applicant
AYABULELE ANDRIES MNCIKANE Third Applicant
SIKHUMBUZO OBED MFAZWE Fourth Applicant
THOKOZANI SIBISI Fifth Applicant
MUSIWA YVONNE RAPHULU Sixth Applicant
MAKOTSETSOANE PAUL RAMOGALE Seventh Applicant
AVUYILE DAMANE Eighth Applicant
XOLANI REFUGE HADEBE Ninth Applicant
TSHILIDZI JOYCE MONAMA Tenth Applicant
and
ISIDINGO SECURITY SERVICES First
Respondent
NATHALIE WILLEMSE N.O. Second Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Third Respondent
Heard: 8 December 2023
Date Delivered: 22 January 2024
This judgment was handed down electronically by circulation to the parties
and legal representatives by email. The date and time for hand -down is
deemed to be 22 January 2024
Summary: Application in terms of section 158(1)(g) – Condonation for late
filing of referral for remuneration in terms of section 198B(10) – principles
distinguishable from decision of Nama Khoi Local Municipality v SA Local
Government Bargaining Council and Others (2019) 40 ILJ 2092 (LC)
JUDGMENT
SAVANT, AJ
Introduction
[1] This is an unopposed application in terms of section 158(1)(g) of the Labour
Relations Act 1 (LRA). The applicant s seek to review and set aside a
condonation ruling issued by the second respondent (commissioner) under
the auspices of the third respondent , the Commission for Conciliation,
Mediation and Arbitration (CCMA).
Background
1 No. 66 of 1995, as amended.
[2] This matter affects approximately 10 former employees of the first
respondent, Isidingo Security Services (Isidingo Security), all of whom earned
below the statutory threshold in terms of section 6(3) of the Basic Conditions
of Employment Act 2 (BCEA). Save for the ninth applicant, the applicants
commenced employment during January 2018 until 30 April 2022.3
[3] Isidingo Security employed the applicants on fixed term contracts in
circumstances contemplated by section 198B (4)(d) of the LRA . Section
198B(4) contains justifiable reasons to keep employees employed for longer
than 3 months without triggering their permanent employment in terms of
section 198B(5). Section 198(B)(4) reads as follows:
“Without limiting the generality of subsection (3), the conclusion of a
fixed term contract will be justified if the employee-
(d) is employed to work exclusively on a specific project that has a
limited or defined duration”.
[4] The applicants claim that following the termination of their employment ,
Isidingo Security did not pay their remuneration in terms of section 198B(10)
of the LRA. Section 198B(10) requires an employer to pay an employee on a
fixed term contract contemplated in section 198B(4) (d) one week’s
remuneration for each completed year of the contract , calculated in
accordance with section 35 of the BCEA upon the expiry of the contract.
[5] Between August 2022 and January 2023, the applicants consulted with their
attorney and submitted claims to the CCMA against Isidingo Security , albeit
for “severance pay” in terms of section 41 of the BCEA. The applicants’
attorney referred claims on different dates on behalf of various of the
applicants until all their claims were referred in terms section 41 of the BCEA
between August 2022 and January 2023.
2 No, 75 of 1997, as amended.
3 The ninth applicant was employed for 2 years and 11 months. His services were also terminated on
30 April 2022.
[6] On 24 January 2023, the first to the sixth applicants ’ matter was enrolled for
arbitration. At the arbitration proceedings Isidingo Security rightly raised a
point in limine , as I understand it, objecting to the CCMA’s jurisdiction to
arbitrate the matter as it was referred in terms of section 41 of the BCEA as
opposed to section 198B of the LRA (for remuneration in terms of section
198B(10)).
[7] Shortly thereafter, on 26 January 2023, the applicants referred a dispute to
the CCMA for a claim for remuneration in terms of section 198B(10). Per
section 198B(3), the applicants ought to have referred their dispute within six
months after the act or omission concerned (in this case, Isidingo Security’s
alleged failure to remunerate the applicants in terms of section 198B(10)
following the expiry of their employment contracts ). The applicants
accordingly ought to have referred their dispute for remuneration by
approximately 30 October 202 2. Having only referred their dispute on 26
January 2023, the applicants were approximately 88 days late. The
applicants therefore applied for condonation for the late filing of their referral,
which Isidingo Security opposed. On 27 February 2023, the commissioner
issued a ruling under the auspices of the CCMA, refusing condonation.
Condonation ruling
[8] The commissioner in dismissing the applicants’ condonation application for
their late filing of their referral for remuneration:
8.1 Noted that whilst the applicants’ delay in referring the dispute to the
CCMA was excessive, their explanation was “substantiated” (or
reasonable as it would appear) . The commissioner was cognizant that
the applicants were not wilful in their delay in referring the dispute and
demonstrated “their active pursuit of the dispute”; and
8.2 With reference to the Labour Court’s decision in Nama Khoi Local
Municipality v SA Local Government Bargaining Council and Others4
held that the applicants “ have very poor prospects, should the main
case be heard…”.
Grounds of review
[9] The crux of the applicants’ ground s of review is the commissioner’s
application of the dicta in Nama Khoi . The applicants aver that the
commissioner committed a fatal error in her application of Nama Khoi and
thus failed to apply her mind by finding that they have poor prospects of
success in their main dispute.
Evaluation
[10] In Nama Khoi the Labour Court correctly held that “reinstatement” is an
incompetent remedy in an order triggering the deeming provision of
employment on an indefinite basis in terms of section 198B(5) of the LRA
absent an unfair dismissal referral .5 In terms of section 198(B)(5) ,
employment is deemed to be on an indefinite basis if it is renewed or
concluded contrary to the provisions of section 198B(3). Section 198B(3)
permits employment on a fixed term contract basis for periods in excess of
three months if the nature of the work for which the employee is employed is
of a limited or definite duration or if the employer can demonstrate any other
justifiable reason for fixing the term of the contract.
[11] Although the court in Nama Khoi was seized with a review application
concerning an arbitration award granting reinstatement after finding that a
former employee was deemed to have been permanently employed in terms
of section 198B, it also made some general remarks in respect of sections
4 (2019) 40 ILJ 2092 (LC).
5 Given that reinstatement is an unfair dismissal remedy.
198A, 198B, 198C and 198D. In this regard, the commissioner quotes the
following excerpt from Nama Khoi6 :
“[35] I consider s 198D to be a process designed to be proactive. It
places an entitlement in the hands of an employee party to
remedy a state of affairs as contemplated by ss 198A, 198B and
198C during the currency of the employment relationship.
Section 198D as a dispute -resolution process is not intended to
be applied once the employment relationship has terminated.
For that, employee parties already have the required protection
in the unfair dismissal provisions of the LRA.”
[12] The statement made by the court in Nama Khoi must be viewed in the context
of the dispute that was before it. The Labour Court in Nama Khoi was not
concerned with a dispute for remuneration in terms of section 198B(10) read
with section 198D(3) of the LRA . Interpreting section 198B in a manner that
requires an ongoing employment relationship would make it impractical and/or
impossible for employees to claim remuneration in terms of section 198B(10).
This is because the remuneration in question only becomes due upon the
expiry of the employment contract and not during its tenure. Such a claim can
therefore only follow after the expiry of the employment relationship.
[13] The commissioner accordingly misconstrued the application for a claim of
remuneration in terms of section 198B(10) and found that the applicants had
“very poor” prospects of success in their main claim . On the contrary
however, it appears that the applicants have very good prospects of success
in their main claim.
[14] That being said, whilst the applicants can be criticised for not having correctly
referred the matter to the CCMA for a remuneration claim in terms section
198B(10) read with section 198D(3) of the LRA, especially because this cause
of action was available to them from the onset and because they had the
benefit of being legally represented , I am inclined to agree with the
6 See: Nama Khoi (Id fn 4) at para 35 and para 21 of the condonation ruling.
commissioner that the applicants’ failure to have correctly referred the dispute
was not wilful and that they have demonstrated an active pursuit of their
dispute. Indeed, shortly after Isidingo Security raised their above point in
limine the applicants properly referred the dispute. These factors ought to tilt
in the favour of providing a reasonable and acceptable explanation for their
delay in filing their dispute. On this score, the record reveals that the
applicants averred that they referred the dispute some 88 days late, whilst
Isidingo Security complained that they referred the dispute 99 days late as the
applicants only served the referral on it on or about 6 February 2023. The
record however contains proof that the referral was emailed, at least on the
face of it, to Isidingo Security 88 days late. In any event, not much turns on
this discrepancy, given that the applicants have referred their dispute to the
CCMA for remuneration shortly after Isidingo Security’s point in limine
whether or not it was referred 88 or 99 days late. Even if the explanation for
the late referral of the dispute is unreasonable and unacceptable, I do not
believe that the interests of justice would have required the dismissal of the
condonation application, especially in circumstances which involves
vulnerable (former) employees, where it appears that they have very good
prospects of success in the main claim and where it cannot be gainsaid that
the applicants have actively pursued their dispute.
[15] In summary, whilst the commissioner’s finding that the applicants proffered an
acceptable explanation for the delay in referring the dispute cannot be faulted,
the condonation ruling stands to be reviewed and set aside. The condonation
ruling is not rational and justifiable in light of the commissioner’s
misapplication of the Nama Khoi decision (as outlined above).
[16] I do not believe this matter ought to be re -considered by a different arbitrator.
This court is in as a good a position to determine the matter based on the
record before it. Accordingly, I am satisfied that it would be appropriate to
substitute the finding dismissing condonation.
[17] In the premises, the following order is made:
Order
1. The ruling under case number GAJB2030-23 is hereby reviewed and
set aside.
2. The ruling is substituted by the following:
“Condonation for the late filing of the referral dated 26 January 2023,
under case number GAJB2030-23 is granted”.
MI Savant
Acting Judge of the Labour Court of South Africa
Appearances:
For the applicants : Keamogetse Nwaila, Nwaila Attorneys Inc.