Information Trust Corporation v Gous and Others (JA49/2002) [2003] ZALAC 25; (2005) 26 ILJ 2351 (LAC) (23 December 2003)

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[2003] ZALAC 25
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Information Trust Corporation v Gous and Others (JA49/2002) [2003] ZALAC 25; (2005) 26 ILJ 2351 (LAC) (23 December 2003)

IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA
( HELD at JOHANNESBURG )
CASE
NO: JA49/2002
In the
matter between:
INFORMATION
TRUST CORPORATION Appellant
and
H.S.H
GOUS First Respondent
CCMA

Second Respondent
M.S.
SEEDAT N.O.
Third
Respondent
JUDGMENT
WILLIS
JA:
[1]
This is an appeal against a judgment of the Labour Court (
per
Revelas
J.)
The first respondent (to
whom I shall refer as “the employee”) brought an application to
review and set aside the decision of
the third respondent (to whom I
shall refer as “the CCMA commissioner”) refusing condonation for
the late referral of a dispute
concerning her alleged unfair
dismissal to the Commission for Conciliation, Mediation and
Arbitration (“the CCMA”) in terms of
section 191
of the
Labour
Relations Act No 66 of 1995
, as amended (“the LRA”). The employee
made the following allegation in her founding affidavit:
“
Ek
voer aan dat in hierdie omstandighede die Tweede Respondent se
beslissing nie deur die feite geregverdig kan word nie”
Mr
Van Jaarsveld
,
who appears for the employee, submitted, and
Mr
Lagrange
,
who appears for the appellant (to which I shall refer as “ the
employer”) fairly conceded that this meant that the employee
based
her grounds for the review on the fact that the CCMA commissioner’s
decision was “unjustifiable” as that term is understood
in cases
such as
Carephone
(Pty) Ltd v Marcus N.O & Others
1999
(3) SA 304
(LAC), (1998) 19 ILJ 1425 (LAC),
[1998] 11 BLLR 1093
(LAC)
and those which have followed it. Although the section was not
expressly invoked by the employee in her founding papers, it
is clear
that the review was brought in terms of
section 158(1)(g)
of the LRA.
This was accepted as being the position by counsel for both sides.
The Court
a quo
reviewed and set aside the decision by the CCMA commissioner. The
Court
a
quo
granted
leave to appeal to this Court.
[2]
The employee, who had 13 years of service with the employer, and who
was a manager at the time, was notified on 28
th
August, 2000 that she should attend a disciplinary enquiry on 31
st
August, 2000. There were a range of charges against her including
alleged dishonesty, failure to perform her work properly and
nepotism.
She was found guilty on all charges and dismissed on 1
st
September 2000. She was paid until 31
st
August, 2001 which was regarded as her last day of service. The
employee then invoked the employer’s internal appeal procedures.
She lodged an appeal on 13
th
September, 2000. The appeal hearing was held on 11
th
October, 2000. The dismissal was confirmed on 17
th
October, 2000. The employee referred the dispute concerning here
alleged unfair dismissal to the CCMA on 24
th
October, 2000. Advised that her referral to the CCMA was out of time
in terms of the provisions of
section 191
of the LRA, the employee
filed an application for condonation for the late referral of the
dispute to the CCMA on 30
th
October, 2000. The reason given by her for the late filing of the
referral of the dispute was that she had been awaiting the outcome
of
her internal appeal hearing. The CCMA commissioner who had to
consider the application for condonation said:
“
The employee
lodged her dispute with the CCMA 29days beyond the 30-day period
prescribed by section 191(1) of the Labour Relations
Act, No.66 of
1995(‘the Act”). The reason for the late referral is that she was
waiting for the outcome of the appeal hearing.
The Labour Appeal
Court in
Edgars Stores Ltd v SACCAWU
(1998) 19 ILJ (LAC) held that a
dismissal dispute arose on the date when the original dismissal was
communicated to the employee.
This was again confirmed in
SACCAWU
v Shakoane
(2000) 21 ILJ 1963 (LAC).
Thus, the finalisation of the appeal hearing does not extend the date
of dismissal… The explanation for
the delay is not sufficient. The
Labour Appeal Court has on many occasions held that, where the
reasons given for the delay are unacceptable,
this itself would
justify the refusal to grant condonation.
“
[3]
The CCMA commissioner gave no other reasons for refusing the
application for condonation. It is plain that the CCMA commissioner
based his decision on the fact that he considered that it would be
impermissible for him to have regard to the fact that the employee
had waited until the completion of her internal appeal hearing before
she began processing the referral of her dispute to the CCMA.
It is
clear that, if the calculation had been made from the date of the
finalisation of her internal appeal, the employee would have
been within
the time period provided for. The CCMA commissioner found, in effect,
that the employee should have considered the date
when she was first
informed of her dismissal (i.e. 1
st
September, 2000) as the date from which the 30 day period for the
referral of the dispute would begin running and that she could
not
take the date on which she received the outcome of her appeal as the
date from which the 30 day period would run. The CCMA commissioner
also found that it was not a reasonable explanation for the delay
that she was awaiting the outcome of the appeal.
[4]
The employee brought an application before the Labour Court to review
the CCMA commissioner’s decision to refuse condonation.
The court
a
quo
,
as has already been noted, set aside the refusal to grant
condonation. The court
a
quo
considered the cases of
Edgars
Stores Ltd v SACCAWU
(
supra
)
and
SACCAWU
v Shakoane
(
supra
).
The court
a
quo
interfered
with the decision of the CCMA commissioner on the basis that he had
failed to apply his mind to the employee’s prospects
of success
which fairness required he should have done in the circumstances.
[5]
The employer has, at various stages in these proceedings, criticised
the patchiness and sketchiness of the employee’s founding
papers.
There is merit in these submissions. Some, but not all, of these
deficiencies appear in the first paragraph of this judgment.
Nevertheless, there is sufficient before us to make a decision which,
in my opinion, will do justice to the case.
[6]
Subsections 191 (1) and (2) of the LRA at the time when the
commissioner considered the matter, read as follows:
“
(1)
If there is a dispute about the
fairness of a dismissal, the dismissed employee may refer the dispute
in writing within 30 days of
the date of dismissal-
to
a council, if the parties to the dispute fall within the registered
scope of that council; or
the
Commission, if no council has jurisdiction.
(2)
If the employee shows good cause at any time, the council or the
Commission may permit the employee to refer the dispute after
the 30
day time limit has expired.
”
It
is not without significance that subsections 191 (1) and (2) have
been amended by s 46 of Act 12 of 2002 to read as follows:
“
(1)
(a)
If there is a dispute
about the fairness of a dismissal, or a dispute about an alleged
unfair labour practice, the dismissed employee
or the employee
alleging the unfair labour practice may refer the dispute in writing
–
to
a council, if the parties to the dispute fall within the registered
scope of that council; or
the
Commission, if no council has jurisdiction.
(b) A referral in
terms of paragraph (a) must be made within-
30
days of the date of dismissal or, if it is a later date, within 30
days of the employer making a final decision to dismiss or
uphold
the dismissal;
90
days after the date of the act or omission which allegedly
constitutes the unfair labour practice or, if it is a later date,
within 90 days of the date on which the employee became aware of the
act or occurrence.
(2)
If the employee shows good cause at any time, the council or the
Commission may permit the employee to refer the dispute after
the
relevant time limit in subsection (1) has expired.
”
In
National Health & Allied Workers Union v University of Cape
Town & Others
2003 (3) SA 1
(CC); (2003) 24 ILJ 95 (CC);
[2003] 4 BCLR 154
(CC), .the Constitutional Court held that it would
be permissible to refer to the amended version of section 197 of the
LRA to understand
what was meant by the section. This was because the
preamble to the amending Act (The
Labour Relations Amendment Act,
No.12 of 2002
) expressly provided that it was enacted,
inter alia
,
to provide for “the clarification of the transfer of contracts of
employment in the case of transfers of a business, trade or
undertaking as a going concern” (See paras. [65] to [69] of that
judgment.) The same preamble does not expressly provide for the
clarification of the provisions of
section 191.
Nevertheless, these
amendments were presumably designed to avoid the confusion
surrounding the true intentions of the legislature
in regard to the
time limits within which disputes must be referred to the CCMA. This
case demonstrates how easily confusion could
arise in regard to the
interpretation of subsections 191(1) and (2) in their original form.
The recent amendments to
s 191
of the LRA should prevent the kind of
problem which arose in this case.
[7]
In
Edgars
Stores Ltd v SACCAWU
(
supra
)
the unanimous conclusion of the court at para [20] was as follows:
“
Its (i.e. the
union’s) contention was that the dismissal did not become final
until the internal procedure had been exhausted, a
submission which
the commission and the Labourt Court, correctly, rejected.
”
In
SACCAWU
v Shakoane
(
supra
)
the majority came to a similar conclusion to that of the court in the
Edgars
Stores
case. It is important to note that in both these two cases the court
was dealing with the interpretation of items 21 and 22 of Schedule
7
of the LRA. These relate to the transitional provisions which were
applicable in moving from the Labour Relations Act, No. 28 of
1956,
as amended (which was repealed and replaced by the LRA) to the then
new LRA. Not only logic but also fairness to both employers
and
employees requires that the merits of a dismissal of an employee
must be viewed and determined in terms of the law applicable
at
the time when the decision was taken to dismiss him or her.
Moreover, it is important to note that, although in both the
Edgars
Stores Ltd v SACCAWU
and
SACCAWU
v Shakoane
cases,
the
court
was concerned with the meaning of a dispute concerning an alleged
unfair dismissal, it was in each instance really concerned
with the
meaning of the word “dispute” with regard to the transitional
provisions rather than anything else. As Zondo JP said
in the case of
SACCAWU
v Shakoane
at para [10]:
“
In fact
logic dictates that the existence of the need to exhaust internal
procedures itself suggests that a dispute or something akin
to a
dispute must exist before such internal procedures can be invoked.
”
The
CCMA commissioner
understood that the principles applicable in determining whether the
1956 Act or the 1995 Act should apply required him to dismiss
the
application for condonation which was made because the employee
referred the dispute only once she had learned that her appeal
was
unsuccessful.
The
context in which both the
Edgars
Stores Ltd v SACCAWU
and
SACCAWU
v Shakoane
cases
were decided was very different from the issue before the CCMA
commissioner.
[8]
In
Fidelity Guards Holdings (Pty) Ltd v Epstein & Others
(2000) 21 ILJ 2009 (LC) , Pillemer AJ said at para [18]:
“
It
seems to me to be absurd that an applicant who pursues an internal
appeal procedure would be precluded from utilizing the dispute
resolution procedure provided in s 191 of the Act if the decision on
his appeal is delivered more than 30 days after the date of
dismissal
because he believes he was dismissed on the day he is notified that
he has lost his appeal. It is also ridiculous in my
view for an
applicant to have to proceed against his employer in the CCMA while
an appeal is pending or the result thereof is awaited,
when to do so
may well sour the relationship and/or affect the result of the
appeal. The Act prescribes the date of the dismissal
(s 190). The
absurd consequence may be a procedural requisite in cases such as the
present one. Condonation in such a case must inevitably
be granted
and, furthermore, it is perfectly reasonable for the employee to
believe that the date the dispute arose is the date he
is told
finally that his appeal against his dismissal has been refused.
”
On appeal, in the reported case of
Fidelity Guards Holdings (Pty) Ltd v Epstein & Others
(2000) 21 ILJ 2382 (LAC), Zondo JP, delivering the unanimous
decision of this Court said the following of Pillemer AJ’s judgment
at para [21]:
“
In conclusion I am unable to find that the court
a quo
erred in any way
in dismissing the review application.
“. I agree with
sentiments expressed in this judgment.
[9]
T
he CCMA
commissioner based his decision on a misunderstanding of the issues
before him. The employee’s case was based on an acceptance
that she
was dismissed on the date taken by the commissioner as the date of
her dismissal. She also accepted that because that was
the date of
her dismissal, her referral was late. The case which she advanced in
support of her application for condonation was that
because she was
awaiting the outcome of the internal appeal, there was good cause for
her delay. The commissioner seems to have understood
her case to be
that the fact that she had lodged an internal appeal extended the
date of her dismissal to the date of the outcome
of her appeal.
[10]
In
Miladys
v Naidoo & Others
(supra),
Nicholson JA, delivering the unanimous judgment of the court said at
para [30]:
“
Gross
irregularities have been divided into those that occur patently,
where, for example, the right to cross-examination is denied,
or
latently, where the reasoning is so flawed that one must conclude
that there has not been a fair trial of the issues.
”
In
Goldfields Investment Ltd &
Another v City Council of Johannesburg & Another
1938
TPD 551
at 560 Schreiner J, as he then was, said the following in
considering whether a gross irregularity of the latent kind had
occurred
(it being clear that the arbitrator had committed no patent
gross irregularity):
“
In matters relating to the
merits the magistrate may err by taking a wrong one of several views
or he may err by mistaking or misunderstanding
the point in issue. In
the latter case it may be said that he is in a sense failing to
address his mind to the true point to be decided
and therefore
failing to afford the parties a fair trial. But that is not
necessarily the case, it would be straining the language
to describe
it as a gross irregularity or a denial of a fair trial. One would say
that the magistrate has decided the case fairly
but has gone wrong on
the law. But if the mistake leads to the court’s not merely missing
or misunderstanding appoint of law on
the merits, but to its
misconceiving the whole nature of the enquiry, or of its duties in
connection therewith, then it is in accordance
with the ordinary use
of language to say that the losing party has not had a fair trial.
”
This
extract was quoted with approval in the case of
Toyota SA Motors
(Pty) Ltd v Radebe & Others
(2000) 21 ILJ 340 (LAC) at para
[41] (which was, in turn, referred to with approval in
Miladys v
Naidoo & Others
(
supra
) at para [30]) and in a long
line of other cases in other courts and has been endorsed by the
Supreme Court of Appeal, the most recent
case in that court being
Paper Printing Wood & Allied Worlers Union v Pienaar NO &
Others
1993 (4) SA 631(A)
at 638G; (1993) 14 ILJ 1187 (A). That
the employee had waited for the outcome of the internal appeal before
referring her dispute
to the CCMA was far from irrelevant. This was
the very issue that should have weighed with the CCMA commissioner
and which, in my
opinion, should have led to the application for
condonation being granted. The CCMA commissioner mistook or
misunderstood the point
in issue. He misconceived the nature of the
enquiry before him as well as his powers. He failed to address his
mind to the true
point to be decided. His reasoning was so flawed
that the decision warrants interference. If these findings would have
justified
a conclusion that there had been a reviewable irregularity
in the nature of a latent “gross irregularity” then they
certainly
compel the conclusion that a reviewable irregularity had
been committed on the basis that the decision was not “justifiable”.
(See the cases referred to in para [1] of this judgment). It was not
a “rational decision directed to a proper purpose” (See
para [89]
of
Bel Porto School Body v Premier Western Cape
(
supra
)).
Mr Lagrange
conceded, correctly, that if we found that the
CCMA commissioner had misunderstood the point in issue or had
misunderstood the nature
of the enquiry before him or his powers or
had failed to address his mind to the true point to be decided, then
the review would
have to succeed.
For reasons which are
somewhat different from those of the Court
a quo
, I therefore
come to the conclusion that the Court
a quo
was correct in
deciding to set aside the commissioner’s dismissal of the
application for condonation of the late referral.
[11]
There is no reason why costs should not follow the result in this
case.
[12]
The appeal is dismissed with costs.
DATED
AT JOHANNESBURG THIS DAY of DECEMBER 2003.
N.P.
WILLIS
JUDGE
OF THE LABOUR APPEAL COURT
I
agree.
R.M.
M. ZONDO
JUDGE-PRESIDENT
OF THE LABOUR APPEAL COURT
I
agree.
C.
N. JAFTA
ACTING
JUDGE OF THE LABOUR APPEAL COURT
Counsel
for Appellant:
R. Lagrange
Attorneys
for Appellant: Horwitz Inc
Counsel
for Respondent:
S. R. Van
Jaarsveld
Attorneys
for Respondent: Cynthia Du Plessis
Date
of hearing: 11
th
September, 2003
Date
of Judgment: 23 December, 2003