South African Broadcasting Corporation v Commission for Conciliation Mediation and Arbitration and Others (JA29/00) [2002] ZALAC 15 (11 July 2002)

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[2002] ZALAC 15
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South African Broadcasting Corporation v Commission for Conciliation Mediation and Arbitration and Others (JA29/00) [2002] ZALAC 15; [2002] 9 BLLR 824 (LAC); (2002) 23 ILJ 1549 (LAC) (11 July 2002)

IN THE LABOUR APPEAL COURT OF
SOUTH AFRICA
HELD IN JOHANNESBURG
Case no : JA29/00
In the
matter between :
SOUTH
AFRICAN BROADCASTING
CORPORATION
APPELLANT
and
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION FIRST RESPONDENT
ZOLA MKHOSANA N O
SECOND RESPONDENT
ISRAEL
SABATA PAPANE
THIRD RESPONDENT
BROADCASTING, ELECTRONIC MEDIA
AND
ALLIED WORKERS UNION FOURTH RESPONDENT
JUDGMENT
COMRIE
AJA :
The appellant is the South
African Broadcasting Corporation which for convenience I shall refer
to as the SABC. The third respondent
is Mr. I. S. Papane (“
Papane
”)
who was formerly employed by the SABC at Bloemfontein as a senior
production assistant. On 22 September 1999, following a disciplinary
hearing, Papane was dismissed by the SABC for
having failed to comply with his
prescribed duties.
The fourth respondent is the
Broadcast, Electronic Media and Allied Workers Union (the “
union
”).
It is party to a collective agreement, styled the Relationship
Accord (“
accord
”), with the SABC. This accord provides
that a dispute of right, if it cannot be resolved internally, should
be referred to arbitration.
The parties must endeavour to agree upon
the appointment of a mutually acceptable arbitrator, “
failing
which the arbitrator will be appointed by the Director of IMSSA at
the request of the parties
”. IMSSA is the Independent
Mediation Society of South Africa.
Papane was aggrieved at his
dismissal. On his behalf the union, in its Free State region, took
up the complaint. When internal resolution
failed, the Free State
region sought to refer the continuing unfair dismissal dispute to
arbitration in terms of the accord. As
far as the Free State region
was concerned, Papane was not only a member of the union, but also
its regional chairperson.
The SABC was not averse to
arbitration, but subject to an important reservation. In March 1999
it had received written notification
from the union’s national
executive committee and national president (Mr. H.du Buisson) that
Papane had been “
expelled from the union after disciplinary
action”
, and that Papane held no position in the union, not
even as a member. Pursuant thereto the SABC ceased from April 1999
to deduct
union dues from Papane’s salary. When arbitration
loomed, the SABC raised the question of Papane’s membership of
the union,
and voiced its
concern over whether arbitration
in terms of the accord was the correct course to follow. In a letter
to the Free State region dated
3 December 1999 the SABC (per. Mr.
Weber) wrote :
“ The SABC can unfortunately not participate
in setting up any arbitration procedure, unless clarity is
received as far as the
status of Mr. Papane as being a member of
BEMAWU, is concerned”
.
There was in any event no
agreement on the identity of an arbitrator. This was how IMSSA
entered the picture. It appointed Adv.
Osler to arbitrate. The
question of Papane’s membership of the union continued to be
controversial. The Free State region, and
Papane , maintained that
he had not been expelled or properly expelled; that he remained a
member in good standing; and that during
July 1999 he had been
elected regional chairperson. du Buisson , on the other hand ,
persisted in saying that Papane’s membership
had ceased. While
these exchanges were going on, IMSSA proposed a solution, namely a
two - phase arbitration. The first phase
would be between Papane and
the union, to determine if he was a member. If yes, the second
phase would be between the SABC and
the union (on behalf of Papane)
with regard to the dismissal. If no, then implicitly the dismissal
dispute would have to go to
the first respondent
( the CCMA). That was how the SABC
understood the matter. On 8 March 2000 it wrote to Papane’s
attorneys summarising its attitude
and the proposal. The letter
included the following paragraph :
“
The importance of
finalising the issue of your client’s membership to
(sic) the union, is to determine which forum has
the
jurisdiction
to adjudicate the matter i.e IMSSA (in terms of the Relationship
Accord - where your client is a member of the union
) or the CCMA,
where your client is not a member of the union”
.
While the two - phase proposal
was acceptable to the SABC and Papane, it was unacceptable to du
Buisson and the national office
, who refused to participate. As a
result IMSSA found itself unable to proceed with the arbitration.
The SABC and Papane both appear
to have accepted the proposal’s
failure and also the failure of the arbitration process.
Consequently, on 5 May 2000, Papane
referred the unfair dismissal
dispute to the CCMA. But Papane was out of time, so he sought
condonation of the late referral in
terms of
s. 158
(1)(f) of the
Labour Relations Act no. 66 of 1995
. The application for condonation
was opposed by the SABC on two broad grounds : first, want of
jurisdiction; second, undue lateness
and lack of prospects of
success such that condonation should be refused.
On 29 August 2000 a commissioner,
the second respondent, granted condonation for the following
succinct reasons :
“
THE FINDING GRANTED
It is clear to me that there
was confusion over the membership of Mr Papane.
The letter from the president
of the union says that Mr Papane was expelled. It does not indicate
at which meeting the decision was
taken whether Mr Papane was present
or not.
The Free State region denies
the fact that Mr Papane was expelled from the Union. They even
referred the matter to IMSSA on his behalf.
I am of the opinion that Mr
Papane’s delay in referring the matter to the CCMA was caused by
this confusion, not through his negligence.
Condonation granted”.
8. The SABC thereupon reviewed the
commissioner’s decision in the Labour Court upon substantially the
same grounds as it had advanced
before the commissioner. Papane
opposed the review.
Farber AJ
dismissed the review
application with costs, but granted leave to appeal to this Court. I
shall deal in turn with each of the two
broad grounds.
Jurisdiction
If Papane , at the time of his
dismissal, was
not
a member of the union, then his
entitlement to refer his unfair dismissal dispute to the CCMA is
undoubted and undisputed. On the
other hand, if Papane
was
then a member of the union, it was up to the union to pursue his
claim in terms of the accord, if necessary to private arbitration.
The difficulties which faced the commissioner and the Court
a quo
were as follows : In his referral of the dismissal dispute to the
CCMA, Papane claimed to be a member of the union and to have
the
backing of its Free State region. He explained, however, that his
attempts to have the dispute referred to private arbitration
had
come to nought, and that his membership was disputed by the national
office. In these circumstances could Papane, while asserting
membership and a right to arbitrate, proceed in the CCMA?
10. It is not apparent from his
brief reasons how the commissioner viewed the matter.
Farber AJ
rejected arguments for Papane based on
s. 24
and
s. 147
of the LRA.
He found, however, that inasmuch as the agreement to arbitrate had
become incapable of implementation the obstacle to
the CCMA’s
jurisdiction had in the intendment of the law fallen away. It is
unnecessary for us to rule on the correctness or otherwise
of the
learned Judge’s reasoning, because in argument in this Court,
Mr.
Maseremule
( who appeared for the SABC) conceded jurisdiction. He
did so for the reason that at this stage it would be proper to have
regard
to the attitude of the national office. Papane was expelled
from the union ( rightly or wrongly ) in March 1999; union dues were
not deducted from April onwards; and as far as we are aware, Papane (
and the Free State region ) took no legal steps (eg, under
s. 158
(1)(e) of the LRA) to challenge the expulsion prior to his dismissal
in September 1999. His status therefore was then, and still
is, one
of being a non - member, albeit open to challenge and reversal. The
national office was entitled to adopt the standpoint
that Papane was
not a member, unless and until the expulsion was reversed, and it was
accordingly entitled to refuse to be party
to arbitration in terms of
the accord. Once it is accepted that Papane should be treated for the
time being as a non - member, the
jurisdiction of the CCMA is
uncontested.
I think this reasoning is sound
in the special circumstances of this case. It disposes of the
jurisdiction issue.
Condonation
The lateness of the referral to
the CCMA is largely explained by the summary of events which appears
earlier in this judgment. As
I have shown, Papane and the Free State
region were anxious to arbitrate in terms of the accord. The SABC,
for its part, was not
unwilling to arbitrate the dismissal either
via IMSSA or before the CCMA, whichever be the correct forum. But
the SABC understandably
did not wish to be drawn into the dispute
between Papane and the national office of the union, and to this end
expressed its concurrence
in the proposed two - phased arbitration.
That proposal foundered. I find it rather surprising, therefore,
that the SABC should
rely on lateness when it was an active party to
the cause of the lateness. The same contradictory attitude is to be
found in Weber’s
affidavit opposing condonation where, prior to
invoking delay, he states:
“
23. The [SABC] was at any
point in time and still is prepared to have this matter arbitrated
over, on condition that it should happen
in the correct forum”.
What would have happened, one may
ask, if the first phase of the arbitration had gone ahead, and if
Adv. Osler - as between the
union and Papane - had held that Papane
ceased to be a member from March 1999 and remained a non - member?
Such an award would
have compelled Papane to refer the unfair
dismissal dispute to the CCMA, as the SABC expected ( see para. 4 of
its letter dated
8 March 2000 quoted earlier).Could the SABC then
have been heard to complain about lateness when, on this hypothesis,
Papane had
followed the very course to which the SABC was agreeable?
That does not sound fair or right.
Papane was dismissed on 22
September 1999. In terms of
s.191(1)
he had 30 days within which to
refer the consequent dispute to the CCMA ( assuming it had
jurisdiction). The actual referral took
place on 5 May 2000. Papane
was accordingly out of time by about 6 ½ months. While this is a
substantial delay, it is not beyond
the bounds of condonation.
Rademan v. Containerlink
(PA5/00 - LAC, unreported). The
question of delay was addressed by Weber, in his affidavit opposing
condonation, as follows:
“
24(b) ever since the
“dispute” was declared by the Free State Region Bloemfontein (19
November 1999), almost seven (7) months
ago and almost eight (8)
months after termination of the Applicant’s services, the
Respondent was placed in a very difficult position
as to decide at
which forum this dispute should be dealt with, which fact was on
numerous occasions pointed out to the Applicant.
The Applicant remained
steadfast in his approach, claiming to be a member of the union
(BEMAWU), hence the request for arbitration
by IMSSA.
The Applicant did not heed the
request made by the Respondent, at that early stage, to have his
membership status addressed, between
himself and the union.
As a result of the dispute
between the Applicant and the union, which the Applicant never
attempted to resolve before involving IMSSA,
can be attributed to the
Applicant’s own negligence. The Applicant was the creator of his
own misfortune and the Respondent should
not be held liable and
accountable accordingly.
The Applicant had ample time to
address this membership issue, which he recklessly disregarded.
It further needs to be noted
that in terms of the relevant document attached, that he was
considered by the union to have been expelled
before the termination
of his services, yet he did not do anything to rectify the situation,
had it been a problem to him”.
Mr Maserumule
developed
this contention in oral argument. He said there were three periods
of delay: first, from March to September, 1999, when
Papane took no
legal steps to challenge his dismissal; second, from September 1999
to March 2000, when the Free State region sought
to pursue Papane’s
dismissal dispute in terms of the accord; third, from March (
perhaps April) 2000 to 5 May 2000, on which
latter date that dispute
was referred to the CCMA. With regard to the first period, Papane
did not know in advance that he would
be dismissed, although towards
the end he knew that disciplinary proceedings were pending. It would
be unrealistic to expect him
to have instituted proceedings against
the national office and the union’s president in order to cater
for this contingency.
And it is speculative to suppose that such
proceedings, if commenced, would have been concluded by September. I
would not hold
this first period against Papane.
As for the second period, it is
not as though Papane sat idly by. Supported by the Free State
region, he sought to resolve and then
arbitrate the dismissal
dispute in terms of the accord. It appears in retrospect that he
took the wrong road, and perhaps he should
have foreseen that it
would eventually run into a dead end. There were signs along the way
that this is what might happen. But
Papane and the Free State region
were hopeful that the two - phased arbitration would get them home.
I think that was not unreasonable
of them , especially if one bears
in mind that the SABC went along with the proposal and did not tell
Papane that he was wasting
his time.
Coming to the third period,
whether counted from March or April, it was not simply a case of
filing a referral document with the
CCMA. When the two - phased
arbitration fell through, Papane and his attorneys had to consider
what to do. Having decided on the
CCMA, an application for
condonation had to be prepared and served in addition to the
referral. All this would have taken time.
Even allowing for some
urgency, I do not consider that Papane was dilatory during this
period.
It is my view that the delay has
been fully and adequately explained and that such explanation
amounts to what is sometimes called
a “strong” explanation. It
remains to note that the SABC at no stage claimed any prejudice to
it as a result of the delay.
According to the leading cases on
condonation, Papane had also to satisfy the commissioner that he
enjoyed prospects of success
in the unfair dismissal dispute. It is
established as a general rule that the stronger the explanation for
the delay, the weaker
the prospects need to be.
Melane v
Santam Insurance Co.
Ltd
1962 (4) SA 531
(A);
NUM v
Council for Mineral Technology
[1999] 3 BLLR 209
(LAC). It was
urged upon us that in his founding affidavit in support of
condonation Papane said too little about his prospects
of success in
the unfair dismissal dispute. He stated:
“
5. On the 22
nd
of September 1999 a Disciplinary Hearing was held against me pursuant
to which Disciplinary Hearing I was found guilty and dismissed
by the
SABC, such dismissal was effected without any reason and the
procedure followed was accordingly deficient in many respect”.
Later in that affidavit he stated:
“17. I believe that there are strong
prospects of success which in the present case will compensate for
the long delay”.
However, there was more to it
than that; the referral itself was before the commissioner. Although
unsworn, its contents cannot
be treated as irrelevant. It was in
respect of this referral that Papane made the statements in para’s
5 and 17 of his affidavit.
Among the statements in the referral were
the following:
“
SABC unfairly dismissed me
on the 30 September 1999 for alleged non - compliance with the duties
of my Service Contract. I submit
that I complied with the duties
entrusted upon me by SABC”.
and
“ A disciplinary hearing was held but this
had several deficiencies”.
and, in answer to the question why
the dismissal was procedurally unfair:
“
Bias on the part of the
panel, misdirection on the part of the decision makers, disregard of
my version and my evidence completely
and the law”.
and, on substantive issues:
“
No reason was given in
respect of my dismissal hence the dismissal was both procedurally and
substantively unfair”.
On prospects Weber in his
answering affidavit, to the condonation, stated:
“
(c) It is further the
Respondent’s contention that there is no prospect for the Applicant
in succeeding on the merits of this case,
owing to the fact that the
applicant refused to work the scheduled shifts and, therefore, made
himself guilty of non - compliance
of the duties of his contract of
service, indicating a breach thereof. This aspect will further be
explained when arguing this matter”.
Annexed to Weber’s affidavit
was a letter dated 20 September 1999 from the SABC to Papane in
reply to an undated letter ( also
copied of record) from Papane to
the SABC. The effect of this correspondence was that Papane objected
to Mr P. Tati sitting on
the disciplinary panel, and also objected
to Ms H. Mofokeng not being allowed to sit on the panel. The SABC in
its letter of 20
September, just two days before the disciplinary
hearing, overruled these objections. It will be recalled that one of
the allegations
made by Papane in the referral to the CCMA was “
bias on the part of the panel”.
In his replying affidavit ( on
condonation) Papane simply stated:
“
2. I confirm that I have
been unfairly dismissed without any reason whatsoever by the
Respondent and that the procedures followed
was (sic) accordingly
deficient”.
It can be seen from the aforegoing
that Papane at least contended that the disciplinary panel was rigged
and partial, and that this
led to an unwarranted conviction. Further,
this was not an afterthought; he challenged the constitution of the
panel prior to the
disciplinary hearing.
No doubt it would have been
preferable, as
Mr Maserumule
submitted, if Papane had
included more detail about the charges and the hearing and if he had
stated his criticisms and complaints
with more precision. None the
less it seems to me that Papane put enough before the commissioner
to show that he enjoyed some
prospects of success in relation to the
unfair dismissal dispute. Given the strong explanation for the
delay, I consider that those
prospects passed muster for the
purposes of condonation.
For the aforegoing reasons I
conclude that condonation was properly granted by the commissioner
and that the review of that decision
was properly dismissed by
Farber AJ.
The appeal is dismissed with
costs
______________
R.G.
Comrie
Acting
Judge of Appeal
I agree.
_________________
C.R.
Nicholson
Judge of
Appeal
I agree.
_________________
M.T.R.
Mogoeng
Judge of
Appeal
Appearances:
For the
Appellant: Mr P. Maserumule of Maserumule Inc. Braamfontein
For the
Respondent: Ms. V. Phatsoane of Naude Attorneys, Bloemfontein
Date of
Hearing: 10 May 2002
Date of
Judgment: 11 July 2002