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[2008] ZALAC 23
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Cardoso Cigarette Depot (Pty) Ltd v Da Silva Dias (JA 37/05) [2008] ZALAC 23 (15 May 2008)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
APPEAL COURT CASE NO: JA 37/05
In the matter between:
CARDOSO CIGARETTE
DEPOT (PTY) LTD
.........................
APPELLANT
and
MARIA GUILHERMINA DA
SILVA DIAS
............................
RESPONDENT
JUDGMENT
LEEUW AJA:
Introduction:
[1] This appeal, with the
leave of this Court, is against a judgment of Oosthuizen AJ sitting
at the Labour Court in Johannesburg.
The Appellant (the employer) who
was the First Respondent in the Court
a quo
,
appeals against the following order
granted on 22 February 2005:
“
[1] The award made
by the Third Respondent on 1 June 2003, refusing to condone the
Applicant late referral of the unfair dismissal
dispute initiated by
her, is set aside;
[2] Such award is
substituted by a finding reading as follows:
“
The Applicant’s
failure to refer her dispute within the time period specified in
section 191 (1) (b) (i) of Act 66 of 1995
is condoned.”
[3] First Respondent is
ordered to pay the costs occasioned by its opposition to this
application.”
[2] The Respondent (the
employee) was employed by the appellant as a Manager. She was
dismissed for alleged incompetence. She felt
aggrieved by such
dismissal which she regarded as unfair. A dispute arose between the
two parties about the fairness or otherwise
of the dismissal. The
employee referred the dispute to the Commission for Conciliation,
Mediation and Arbitration (CCMA), for conciliation.
[3] The employee was
dismissed on the 5
th
February 2003. The employee referred
the dispute to the CCMA on 10 March 2003, which was three (3) days
out of the thirty (30)
days period prescribed by section 191 (1) (b)
(i) of the Labour Relations Act No 66 of 1995 (“The Act”)
for the referral
of such a dispute to conciliation.
[4] The employee filed an
application to the CCMA for the condonation of the late referral of
the dispute simultaneously with the
referral on 10 March 2003. A
commissioner of the CCMA (“the commissioner”) refused to
grant the application for condonation
and ordered the employee to pay
costs.
[5] The employee took the
commissioner’s ruling to the Labour Court on review. The
application was launched in terms of section
145 (2) (a) (i) and (ii)
of the Act. The Labour Court, through Oosthuizen AJ, granted the
review application and set aside the
commissioner’s decision
and granted the employee condonation for the late referral of the
dispute to the CCMA. The appeal
is against that order.
The facts surrounding
the delay
[6] In the employee’s
affidavit filed in the CCMA in support of her condonation
application, the reasons advanced for the
late referral of the
dispute were that:
(a) the employee, who
stayed in Polokwane had paid her son a visit in Welkom in the Free
State Province on the 6
th
March 2003;
(b) Whilst in Welkom, the
employee injured her small toe and could not drive herself back to
Polokwane on Monday;
(c) She referred the
dispute to the CCMA on Monday the 10
th
March 2003;
(d) it is not clear
whether she had returned from Welkom before or on the 10
th
March; and
(e) She was not aware of
the fact that in terms of the Act she had to refer the dispute within
a period of thirty (30) days after
her dismissal.
[7] In its affidavit
filed in the CCMA in support of the appellant’s opposition of
the employee’s condonation application,
the appellant’s
answer to the employee’s explanation for her delay was that
between the 5
th
and 27
th
February 2003, the
employee was able to drive, did drive and could have referred the
dispute during that period, that is before
she got injured in her
toe. In other words the appellant was saying that had the employee
referred the dispute between 5 and 27
February 2003, the referral
would have been on time and because she did not do so then, it was no
excuse that she failed to refer
it within the prescribed 30 day
period. The appellant submitted that the employee had failed to show
good cause for her failure
to comply with the 30 days requirement. In
her replying affidavit filed in the CCMA the employee stated that she
was not aware
that she has to refer the dispute within 30 days
although she had intended to refer it to the CCMA as soon as
possible. She submits
that her failure to refer the dispute before 27
February is not relevant “as this application is an application
for condonation
for (sic) the late filing which it has been
established is three days late which three days is calculated from 8
March 2003 to
10 March 2003.
[8] With regard to the
prospects of success, the employee did not say much in her affidavit.
All she said was: “I never did
anything to deserve what I got.”
With regard to prejudice that she would suffer if her condonation
application was refused,
the employee said that she would not have
income and it would be difficult for her at her age to obtain another
job.
[9] In its opposing
affidavit in the CCMA, the appellant made the following points in par
7 thereof regarding the appellant’s
prospects of success:
(a) the employee had been
employed by the appellant as a manager when she was dismissed;
(b) the appellant was
dismissed for “incapacity due to poor performance;”
(c) as at the date of her
dismissal, the employee had a final warning “on 2 October
2002;”
(d) the employee failed
“to comply with directions, instructions, advice and guidance
given to her during the counselling
hearing on 2 October 2002 where
it was agreed that she will (sic) have a period of 3 months to
correct her performance failing
which she would be dismissed;”
and
(e) the final counselling
session had taken place on the 5
th
February 2003 where it
had become evident that the employee “did not comply with any
directions and instructions given to
her previously and that her
performance in fact deteriorated further. Her services were
terminated without notice and she was not
required to continue
working.”
[10] In par 10 of the
appellant’s opposing affidavit in the CCMA, a number of
references are made to occasions when, according
to the appellant,
the employee had been counselled for poor performance without any
improvement on her part. Indeed, it is stated
that she even tried to
avoid inquiries from the Head Office which she knew related to her
performance. Dates are given for some
if not all of those alleged
counselling sessions. It is even stated that in October 2002 it was
agreed with her that she would
have three months within which to
improve but that she had not improved by the expiry of that period.
[11] With regard to the
employee’s case on prejudice if the condonation application was
refused, the appellant pointed out,
in effect that her failure to
improve her performance after she had been given ample opportunity to
improve meant that such prejudice
as she would suffer if condonation
was refused was justified. The appellant pointed out that it would
also be seriously prejudiced,
if it was forced to have to oppose the
employee’s unfair dismissal claim if condonation was granted,
particularly because
it had gone “far beyond the parameters of
fairness” in dealing with the employee.
[12] In response to the
appellant’s criticism that she did not deal with the prospects
of success in any serious way in her
founding affidavit, the employee
states that she was assisted by the CCMA’s staff at the help
desk to prepare her founding
affidavit, that she is a lay person on
legal matters, and that it was her “understanding that the
documentation and specifically
paragraph 4 thereof must be completed
as briefly as possible.” She goes on to say: “The
Commissioner will note that
only two lines is provided in this
respect.” She said that she gave fuller details in the referral
form. She says that in
paragraph 3 of the referral form she had
disputed that she was incapacitated with regard to the performance of
her functions. She
also states that she stated therein that she did
not “agree with the way” in which her “dismissal
was conducted.”
In this regard she clarified that she was
referring to procedural fairness.
[13] The employee denied
that any counselling sessions had taken place but admitted that
normal meetings had been held between herself
and Mr Caradoso, the
appellant’s managing director but that those meetings were “as
in normal course of business”
between the two of them. She says
that those meetings related to the “valuation of the
Pietersburg Branch and not counselling
sessions for her as such.
[14] The employee also
referred to a meeting that was held about 23 April 2002 “to
discuss issues with regard to the sufficient
(sic) running of the
branch, the administration of the branch and service delivery to
clients of the employer” but she says
that that “was in
no way a formal counselling meeting conducted with myself.”
With regard to a statement made in the
appellant’s opposing
affidavit that a Mr Fernandes had to be sent to the Pietersburg
branch to help out, the employee says
that Mr Fernandes was seconded
there as a Trainee Manager and not in any other capacity. She then
says:
“
The specific
reason for his secondment to the Polokwane Branch was due to the fact
that our administrative staff, due to, amongst
others, inexperience,
could not cope adequately with the administrative burden of the
office.”
She denied that she was
given a warning and that she was given three months to improve or be
dismissed. She admits that there was
a counselling session on 5
February 2003. That is the one pursuant to which she was dismissed.
[14] With regard to the
appellant’s case on prejudice, the employee stated that:
(a) she did not
understand how the appellant could be prejudiced by the granting of
condonation particularly if regard was had to
the degree of lateness
and the prejudice that she would suffer if condonation was refused.
(b) She had been employed
by the appellant for over 17 years and the prejudice that she would
suffer if condonation was refused
far outweighed the prejudice that
the appellant could suffer if condonation was granted.
[15] The commissioner
after hearing argument presented by both parties, refused the
condonation application. With regard to the
employee’s
explanation for the delay, the commissioner had the following to say
in her ruling:
“
It is common cause that
Applicant was dismissed on 5
th
February 2003. She referred the dispute to the CCMA on 10
th
March 2003. She furnishes reasons for the delay only in regard to the
period 6
th
to 10
th
March 2003. Applicant does not explain the reasons why she did not
refer the dispute to the CCMA before the 6
th
March 2003 despite that she knew through out that she had been
dismissed. It is not in dispute that Applicant was in Polokwane
on
25
th
February 2003. If she wanted to refer the dispute there is no
explanation as why she did not refer the dispute then. I do not
accept Applicant’s reasons for the delay in the circumstances.”
[16] With regard to
prejudice that either party would suffer it condonation was refused
or granted the commissioner did not say
anything in his award. On the
prospects of success, the commissioner stated that the employee had
not said much in her founding
affidavit but that in her replying
affidavit she had denied that there had been counselling sessions
although she admitted that
certain meetings had taken place but that
those did not relate to her being counselled. The commissioner then
concluded: “Since
both the prospects of success and the
explanation for the delay are not in the applicant’s favour, I
cannot grant condonation
in this matter.” He then refused
condonation and ordered the employee to pay costs because he was of
the view that the employee
had acted frivolously in referring the
dispute for conciliation.
[17] As already stated
earlier, the Labour Court set aside the commissioner’s ruling
and granted the employee condonation.
The Court
a
quo,
gave the following
reasons for its decision:
The fact that the
Respondent was not aware of the requirement that the dispute had to
be referred to the CCMA within thirty
(30) days and this, was not
placed in dispute by the appellant;
17.2 the court a quo
stated that the lack of knowledge of the applicable time period can
be sufficient reason for filing late especially
if the referral was a
few days late as in this case;
the Respondent was
incapacitated by “
a foot injury accounted for virtually
the entire period by which her referral was late”;
and
that
with regard to the
prospects of success on the merits, based on the material presented
before the commissioner, he (the commissioner)
could not have found
that the “
prospects of success were good, or bad.”
The appeal
[18] The question before
us is whether or not the Court
a quo
was
correct in reviewing and setting aside the decision of the
commissioner for refusing to grant condonation for the late referral
to the CCMA of the dispute for conciliation.
[19] I have absolutely no
hesitation in concluding that the Court
a quo
was correct in its decision. This is
so because the dispute was at the stage of conciliation and the
employee was late by only three
days in referring the dispute to the
CCMA for conciliation – a very slight delay –.
Furthermore, she had an explanation
for the delay. That explanation
was not unreasonable. In actual fact it was acceptable. The
commissioner took the view that because
the employee had left the
matter till late in the statutory 30 days period, she ought to have
explained why she had not referred
the dispute during the best part
of the statutory 30 days period. The commissioner refused the
employee condonation because of
her failure to furnish an explanation
for that failure to refer the dispute before the 27
th
February 2003. In my view the
commissioner misconceived the inquiry which he had to make in this
case. I elaborate below.
[20] Sec 191 (1) (b)(i)
of the Act, gives a dismissed employee 30 days within which to refer
her dismissal dispute to the CCMA for
conciliation. That means such
an employee has a right to refer the dispute to the CCMA on the 1
st
or the 15
th
or, the 29
th
or even the 30
th
day of the 30 day period envisaged in sec 191 (1) (b)(i) of the Act.
If the employee refers the dispute on the last day of the
30 day
period, he or she cannot be required to explain why he or she did not
refer it on the 1
st
, 12
th
or 15
th
day of that period. He or she is entitled even to plan to refer it to
the CCMA on the 30
th
day. That is on the last day of the
30 day period. If something happens on the 29
th
day which
prevents him or her from effecting the referral on the 30
th
day, he or she must provide an explanation on what happened on the
29
th
day which caused him or her to be late and need not
explain why he or she had not referred the dispute some days earlier.
She does
not need to explain that because she would have been within
his or her rights not to refer it at that earlier stage and he or she
could not have foreseen that something would happen later and prevent
him or her from referring the dispute on the 29
th
or 30
th
day of the statutory period of 30 days. Of course, I am here not
referring to a situation where there are reasonable grounds for
the
employee to believe that he would probably not have time to refer the
dispute on the 29
th
or 30
th
day of the
statutory period. Obviously, in such a case the employee would have
to explain why he or she did not refer the dispute
earlier in the 30
day period when he or she knew or ought to have known that he or she
would not be able to refer it on the 29
th
or 30
th
day of the period.
[21] In the present
matter, the employee did not have to explain why she had not referred
the dispute earlier than the 7
th
March 2003. This has to
be so because, had she not been indisposed, she would have referred
the dispute on the 30
th
day and that referral would have
been on time. What happened or did not happen before the 7
th
March 2007, has nothing to do with her failure to refer the dispute
on the 30
th
day as she had planned.
[22] With regard to the
employee’s explanation for her failure to refer the dispute to
the CCMA timeously, the commissioner
was required to decide whether
the undisputed fact that the employee injured her foot a day or two
before the expiry of the statutory
30 day period as a result of which
she could not drive herself from Welkom to Polokwane provided an
acceptable explanation for
the employee’s failure to refer the
dispute on the last day or during the last two days of the 30 day
period. The only answer
to that question was that that was an
acceptable explanation because there is no reason to think that the
employee would not have
referred the dispute to the CCMA on the last
day of the 30 day period if she had not injured her foot. The
commissioner rejected
the employee’s explanation because he
focused on the period which was not in issue. In my view the
commissioner misconstrued
the inquiry in this regard and committed a
gross irregularity justifying the reviewing and setting aside of his
ruling.
[23] If the commissioner
had not misconstrued the inquiry, he would have concluded that the
explanation for the delay was acceptable
and, since the delay was
extremely short, namely three days which included a week-end, there
can be no doubt that he would have
granted condonation. It may well
be that the appellant has a strong case against the employee on the
merits but, once the explanation
for the delay is good and the delay
is only one working day and two week-end days, condonation should
clearly be granted. Accordingly,
the Court a quo was right to make
the order that it made.
[24] The commissioner
also considered the prospects of success and concluded that there
were no reasonable prospects of success
and that, for that reason,
the application for condonation fell to be dismissed.
[25] I am sure that the
commissioner considered the issue of prospects of success because
usually that is one of the factors to
be taken in consideration in
condonation applications. I do not think that the commissioner ever
considered whether the issue of
prospects of success was relevant to
a consideration of whether or not to condone the late referral of a
dispute to conciliation.
[26] At conciliation, the
commissioner is not required to, and has no power, to decide whether
dismissal is fair or unfair. For
this reason I doubt that prospects
of success should be considered when dealing with a condonation
application for the late referral
of a dispute to conciliation as
opposed to arbitration or adjudication. Even if such issue was
relevant, I have no doubt that it
should play a very limited role.
The commissioner gave the issue a lot of weight.
[27] In my view, when one
has regard to all of the above, there can be no doubt that the appeal
should fail. The appeal is dismissed
with costs.
______________________
LEEUW AJA
_________________________
ZONDO JP
_________________________
JAPIE AJA
APPEARANCES:
FOR THE APPLICANT:
STEMMET & COETSEE INC
16 Schoeman Street, POLOKWANE 0699
TEL: 015-295 6402 REF : J J
COETSEE/C51
FOR THE RESPONDENT:
JAN SCHOLTEMEYER ATTORNEYS
19A Hans van Rensburg Street,
POLOKWANE 0699
TEL: 015-291 2816 FAX : 015-291 2816/7
REF: Js/nb/D046
Date of hearing : 30 MAY 2007
Date of judgement : 15 May 2008