About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2017
>>
[2017] ZALAC 52
|
|
G4S Secure Solutions (SA) (Pty) Ltd v Gunqubele N.O. and Others (JA86/2016) [2017] ZALAC 52; [2017] 12 BLLR 1181 (LAC); (2018) 39 ILJ 131 (LAC) (5 September 2017)
N
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 86/2016
In the matter between:
G4S SECURE SOLUTIONS
(SA) (PTY) LTD
Appellant
and
COMMISSIONER QUEENDY
GUNQUBELE NO
First respondent
THE COMMISSION FOR
CONCILITATION,
MEDIATION AND
ARBITRATION
Second respondent
GOLI
MALINGA
Third respondent
Heard:
01 June 2017
Delivered:
05 September 2017
Coram: Davis JA,
Landman JA and Phatshoane AJA
Neutral citation:
G4S
Secure Solutions (SA) (Pty) Ltd v G Malinga
(LAC JA68/2016)
JUDGMENT
LANDMAN
JA
[1] G4S Secure Solutions
(SA) (Pty) Ltd, the appellant, appeals against the whole judgment of
the Labour Court (Chaane AJ) delivered
on 25 January 2016. The court
refused to condone the appellant’s late application to review
and set aside an award of a commissioner
acting under the auspices of
the Commission for Conciliation, Mediation and Arbitration (the
CCMA), the first and second respondents
respectively. The award
concerned the alleged demotion of Goli Malinga, the third respondent
(the “employee”). The
appeal is with the leave of the
court
a quo
.
The background
[2] The employee was
employed by the appellant as a Supervisor grade B as from 1 June
2012. During August 2013, he was demoted to
a Supervisor grade D. The
circumstances that gave rise to this are in dispute. The appellant
says that it was by agreement in a
bid to avoid retrenchment. The
employee referred a dispute to the CCMA. When conciliation failed the
matter was enrolled for arbitration
on 20 November 2013. The
appellant did not attend the arbitration proceedings because, it
alleges, it did not receive notice of
the set down. An award was
issued on 26 November 2013. The employee served the award on the
appellant’s receptionist on 13
December 2013. Shortly after
this the appellant’s offices closed for the year.
Application for
rescission
[3] In the following year
the appellant delivered an application to rescind the award. The
general manager says that the application
was delivered on 7 January
2014.
[4] However, there are
several difficulties concerning the date of delivery which I may
mention at this stage. The founding affidavit
was commissioned on 6
January 2014. Mr Hutchinson, who appeared for the appellant, pointed
to a handwritten note on the foot of
the notice reading: “received
9/01/2014” and the name “Mabeki” handwritten on the
top of the page. There
is no indication of who made the note. But the
application bears the CCMA’s date stamp of 19 February 2014. It
also appears
that the employee was not aware of the rescission
application.
[5] The commissioner
dismissed the rescission application on 27 March 2014. The
commissioner noted that the appellant received the
award on 13
December 2013 and applied for its rescission on 7 January 2014. The
commissioner reasoned that the application had
been made after the
expiry of the 14-day period within which the application should have
been brought. Consequently, as the appellant
did not apply for
condonation, the CCMA had no jurisdiction to entertain the
application.
Application for review
of the ruling
[6] The appellant was
dissatisfied with the outcome and on 26 May 2014 the appellant
delivered an application in terms of section
145 of the Labour
Relations Act 66 of 1995 (the LRA) to review and set aside the
commissioner’s ruling. Subsequently, on
8 December 2014, the
appellant delivered an application for the condonation of the late
filing of the review application and an
amendment of the notice of
motion. The employee filed his answering affidavit late.
[7]
The applications were heard on 14 December and judgment was delivered
on 25 January 2015. The court
a
quo
accepted
that although the notice of motion referred to section 145 of the
LRA, it was intended that the application be brought
in terms of
section 158(1)(h) of the LRA. The notice of motion was accordingly
amended. The court relying on
Weder
v MEC for Health, Western Cape
,
[1]
took the view that although an application should be brought within a
reasonable time, an applicant should apply for condonation
if the
application was made after six weeks. The court
a
quo
observed that the appellant had filed an application for condonation
so late that counsel handed up the application in court. However,
both parties urged the court
a
quo
to hear the applications and the court did so. The court
a
quo
declined to condone, what it considered to be the appellant’s
late application, and dismissed the application.
Issues on appeal
[8] This appeal raises
the following issues:
(a)
Should
the appellant’s failure to file the entire record be condoned
and the appeal be reinstated?
(b)
Should
the late filing of the notice of appeal be condoned?
(c)
Was
the application to review the refusal of the commissioner to rescind
the award brought out of time?
(d)
If
so, ought the court
a
quo
to have condoned the late application? And in considering this,
should the court
a
quo
have had regard to the merits of the application for review?
(e)
Should
the court
a
quo
have found that the commissioner ought to have rescinded the award?
Condonation for late
filing in this court
[9] The appellant applies
for the condonation of the late filing of the notice of appeal and
for its failure to file the entire
record (the application to the
court
a quo
for condonation was omitted). The explanation for
appellant’s failure to file the notice of appeal timeously and
its failure
to file the entire record is satisfactory. The
application for condonation and the reinstatement of the appeal thus
rests on the
appellant showing good prospects of success.
Time for filing a
section 158(1)(h) application
[10]
Following
Weder
v MEC for Health, Western Cape (Weder),
the court
a
quo
took the view that the appellant was remiss for not applying for
condonation for the late delivery of its review application. In
the
Weder
judgment, the Labour Court considered the concept of a reasonable
time and remarked:
[2]
‘
What, then,
is a ‘reasonable time’ in the context of s 158 of the
LRA? It is tempting simply to assume that it should
be six weeks, by
analogy to the time period provided for in s 145. At the most, it
cannot be more than the 180 days provided for
in PAJA; in fact, given
that PAJA does not apply and that the process is closely aligned to
that set out in s 145 and rule 7A,
I would suggest that anything more
than six weeks should at least trigger an application for
condonation.’
[11]
It is not permissible for a court to fix a certain time which it
regards as a reasonable time; nor is it permissible to insist
that an
application for condonation should be made after a specific time. An
application for condonation must be made when the
delay is
unreasonable and must be made at the earliest opportunity. The
correct approach is that outlined by Brand JA in
Associated
Institutions Pension Fund v Van Zyl
,
[3]
followed by this Court
in
Collet v Commission for Conciliation, Mediation and Arbitration and
Others
[4]
namely:
‘
[46]
... It is a longstanding rule that courts have the power, as part of
their inherent jurisdiction to
regulate their own proceedings, to
refuse a review application if the aggrieved party had been guilty of
unreasonable delay in
initiating the proceedings…
[47] The
scope and content of the rule has been the subject of investigation
in two decisions of this Court.
They are the
Wolgroeiers
case
and
Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale
Vervoerkommissie, en ’n ander
1986 (2) SA 57
(A). As
appears from these two cases and the numerous decisions in which they
have been followed, application of the rule requires
consideration of
two questions:
(a)
Was there an unreasonable delay?
(b)
If so, should the delay in all the circumstances be condoned?
(See
Wolgroeiers
at 39C–D.)
[48] The
reasonableness or unreasonableness of a delay is entirely dependent
on the facts and circumstances
of any particular case (see eg
Setsokosane
at 86G). The investigation into the reasonableness
of the delay has nothing to do with the Court’s discretion. It
is an investigation
into the facts of the matter in order to
determine whether, in all the circumstances of that case, the delay
was reasonable. Though
this question does imply a value judgment it
is not to be equated with the judicial discretion involved in the
next question, if
it arises, namely, whether a delay which has been
found to be unreasonable, should be condoned (see
Setsokosane
at 86E–F).’
[12] The appellant’s
stance is that the application for review was made timeously and it
was only being cautious when applied
for condonation. Is the
appellant correct? This requires a consideration of all the facts and
circumstances with a view to determining
whether there was any delay
in launching the application and, if so, was the delay unreasonable?
[13] The application for
rescission of the award was dismissed on 1 April 2014. The general
manager: human resources does not say
when he received the ruling but
he says that it seems that the ruling was served on 1 April 2014 and
that by 8 April the appellant
had decided to apply for a review. This
is evidenced by an e-mail sent by Mr Bokaba, a HR official, to
appellant’s attorneys.
While the appellant waited for its
attorneys, the matter received further internal consideration. This
caused the appellant to
ask its attorneys, by e-mail on 15 April
2014, to advise on the prospects of success and the costs involved.
[14] The attorneys
responded on 29 April 2014 by e-mail and provided a founding
affidavit for signature and commissioning. On 5
May 2014, the
attorneys sent a reminder to the HR official. The attorneys followed
this up by attempting to call the HR official.
The HR official
received the attorneys’ message and communicated with the
attorneys. He said that he would verify whether
the general manager
had issued the instructions to the attorneys. It is not clear whether
he did so. On 19 May, the attorneys again
sent an e-mail requesting a
response. The general manager responded on 21 May 2014. He says he
was under the impression that the
issue had already been resolved and
that the HR official furnished necessary instructions because he gave
the go-ahead orally to
the HR official in April. The general manager
says that the appellant failed to respond to the e-mail due to
miscommunication between
the HR official and himself because the HR
official thought that the general manager had issued an instruction
to the attorneys
to proceed with the matter. The general manager
points out that in May 2014 the appellant was involved in a
retrenchment exercise
in its various business units and/or regions,
and that he and the HR official were part of the process. They were
out of the office
and were engaging with the relevant unions and
affected employees and they had limited access to e-mails. The HR
official has since
left the employ of the appellant.
[15] The founding
affidavit was signed on 21 May. As the attorney was only available on
26 May 2014, the application was delivered
on that day.
Evaluation
[16] The LRA places a
premium on the expeditious resolution of labour disputes. The
application to review had to be brought within
a reasonable time and
not within any fixed period. The time taken was a few days short of
two months. I do not think that this
was an unreasonable delay. But
if I am wrong and there was an unreasonable delay, the appellant has
explained the nature of the
delay and why there was a delay. To this
must be added the prospects of success.
[17]
The court
a
quo
was not satisfied with the explanation and did not consider the
prospects of success. In my view, the court
a
quo
applied a too critical an approach to the delay which was, on the
assumption that I have made, a slight one. This is not a case
where,
as it was expressed in
NUM
v Council for Mineral Technology
,
[5]
there is no “reasonable and acceptable explanation for the
delay” so that “the prospects of success are immaterial”.
In my opinion, the court
a
quo
was obliged to consider whether there are good prospects of success.
This needs to be assessed and that depends on whether the
rescission
application should have been granted.
Should the
commissioner have rescinded the award?
[18] The commissioner
declined to rescind the award on the ground that the application for
rescission was late and there was no
application to condone this
defect. On the commissioner’s own finding that the application
being delivered on 7 January 2014,
the commissioner ought to have
found that the application was not late. CCMA rule 3 provides that:
‘
(1) For the
purpose of calculating any period of time in terms of these Rules -
(a) day means a calendar day;
and
(b) the first day is excluded
and the last day is included, subject to sub-rule (2).
(2) The last day of any period
must be excluded if it falls on a Saturday, Sunday, public holiday or
on a day during the period
between 16 December to 7 January.’
[19] The appellant
received the award and thus became aware of it on 13 December 2013.
The 14-day period specified in Rule 32 would
have fallen in the
period 16 December to 7 January, meaning that the last day of the
period fell on 8 January 2014. The appellant’s
case is that the
application was delivered on 7 January ie before the period expired.
There is no need to examine whether the application
was indeed
delivered on 7 January 2014 particularly as the appellant did not
receive notice of the set down for arbitration.
[20] The appellant
provides a good reason for not attending the arbitration proceedings.
The appellant says that it did not receive
the notice of set down.
The appellant points out that the fax number reflected on the default
award was incorrect. Moreover, as
Mr Hutchinson pointed out, the
reference in the default award to the notice of set down being sent
by registered mail on 16 August
2013 cannot be correct. The
conciliation hearing was only convened in September 2013 so that the
notice of set down, if it was
sent to the appellant could only have
been sent thereafter.
[21] I have mentioned
that the appellant says that the demotion was by agreement. The
appellant says that it had conducted a section
189A retrenchment
facilitated by the CCMA and, in order to mitigate the effects of
retrenchment, the appellant offered to retain
the employee at a lower
grade than that on which he was initially employed. The employee
accepted the offer in writing and was
paid partial severance pay. In
addition, the appellant asserts that the default award is not based
on the employee’s correct
remuneration.
[22] The result is that
the commissioner was not justified in her finding that the rescission
application was delivered late and
she should have rescinded the
award. It therefore follows that there are prospects of success as
regards the appeal and the applications
for condonation should be
granted and the appeal reinstated and upheld.
Costs
[23] Taking into account
the injunction to award costs according to law and fairness, I would
make no order as to costs particularly
as the respondent is still
employed by the appellant.
Order
[24] I make the following
order:
1.
The appellant’s failure to file the entire record is condoned
and the appeal
is reinstated.
2.
The late filing of the notice of appeal is condoned.
3.
The order of the Labour Court is set aside and replaced with the
following order:
‘
1. The
dismissal on 27 March 2014 of the applicant’s application to
rescind the award of the Commissioner is reviewed and
set aside and
replaced with a ruling that the arbitration award is rescinded.
2. There is no order as to costs.’
4.
No order is made as regards the costs of the appeal.
______________________
A A Landman
Judge
of the Labour Appeal Court
Davis
JA and Phatshoane AJA concur in the Judgment of Landman JA.
APPEARANCES
FOR
THE APPELLANT:
Adv W J Hutchinson
Instructed by Moodie and
Robertson
FOR
THE THIRD RESPONDENT:
Adv S Saunders
Instructed
by Chiba Attorneys
[1]
[2013] 1 BLLR 94
(LC); (2013) 34 ILJ 1315 (LC).
[2]
At para 8.
[3]
2005 (2) SA 302
(SCA).
[4]
(2014) 35 ILJ 1948
(LAC).
[5]
[1999] 3 BLLR 209
(LAC) at para 10.