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[2019] ZALAC 47
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Khan v Commission for Conciliation Mediation and Arbitration and Others (CA3/2018) [2019] ZALAC 47 (3 May 2019)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
no: CA3/2018
In
the matter between:
BLUMERIUS
LODEWYK EZRA KHAN
Appellant
and
commission
for conciliation mediation
and
arbitration
First
respondent
N
E ISAACS
N.O. Second
respondent
MMI
HOLDINGS
LIMITED Third
respondent
Heard:
14 March 2019
Delivered:
03 May 2019
Coram:
Coppin JA, Murphy AJA and Savage AJA
Judgment
SAVAGE
AJA
[1]
The appellant,
Mr Blumerius Khan, referred an unfair dismissal dispute to the
Commission for Conciliation Mediation and Arbitration
(“CCMA”)
on 24 August 2016 claiming that he had been “forcibly retired”
from his employment with the third
respondent, MMI Holdings Ltd
(“MMI”) on 25 July 2016. The CCMA found that the
appellant’s date of dismissal was
30 June 2016 and the
appellant sought that the late filing of his dispute be condoned.
Condonation was refused by the CCMA and
the appellant applied to the
Labour Court for the review of that ruling. This appeal, with the
leave of the Court a
quo
,
is against the Labour Court’s dismissal of such review
application.
[2]
The appellant
was employed on 2 January 1996 and had more than 20 years’
service with Bankmed before his transfer to Metropolitan
Holdings Ltd
and its merger into MMI. In August 2013, he was appointed Chief
Executive Officer of MMI International. In September
2015, he was
informed by the CEO of MMI, Mr Nicolaas Kruger, of his 2016 salary,
his 2015 bonus award and the long-term incentive
share allocations
which would be payable to him in 2017, 2018 and 2019 provided he
remained in MMI’s employ.
[3]
During April
2016, the appellant’s redeployment back into MMI’s health
company was discussed and negotiations ensued
regarding his new role
in the group. He stepped down as CEO of MMI International and
negotiated a three-year fixed term contract
as an independent
contractor with MMI on the basis that he was “…
going
to stay on…for 3 years on contract
…[but]
had to exit
the share scheme and the pension fund
”.
The appellant ultimately elected not to enter into the contract.
[4]
On 13 May
2016, Kruger informed staff that a new CEO had been appointed to
replace the appellant with effect from 1 July 2016 and
that the
appellant would focus his work on the public health sector in South
Africa and selected African countries. The appellant
assisted Kruger
in drafting this communication. On 30 May 2016, the appellant
received a letter from MMI’s human resources
department
confirming his retirement on 30 June 2016. This accorded with the
company’s retirement fund rules that the “normal
retirement age” was 60 as well as a decision of MMI’s
human resources steering committee in May 2015 that the company
retirement age would remain 60.
[5]
The appellant
did not respond to the letter of 30 May 2016, apparently on the basis
that “
it
was clearly incorrect and not in accordance with my contract of
employment and/or any
[MMI]
policy
…”.
When retirement fund and UIF forms were received by him on 28 June
2016 he again did not respond, apparently as
he “
regarded
these further documents as merely an administrative process regarding
the re-investment of retirement funding
…”.
He was paid out his retirement and UIF benefits and on 30 June 2016
his retirement came into effect.
[6]
In refusing to
condone the late referral of the dispute, the second respondent (“the
commissioner”) noted that the appellant’s
dispute
referral was 65 days late. This was calculated as the period between
the date of dismissal and the date on which the condonation
application was filed. The period between the date of dismissal and
the date on which the dispute was lodged, albeit without the
condonation application required by CCMA Rule 10(2), was 24 days. The
commissioner found that good cause for the late referral
of the
dispute had not been shown since the appellant had been given notice
of his retirement prior to the letter confirming his
retirement on 30
June 2016. Given his seniority, his conduct in waiting to see if he
would be paid on 25 July 2016 was found unreasonable.
Furthermore, in
negotiating a three-year contract, at his request, on the basis that
he would be an independent contractor, his
conduct was found not to
be that of a permanent employee still in the employ of the
respondent.
[7]
The Labour
Court found that the ruling and the discretion exercised by the
commissioner was not open to review in that the conclusion
reached by
the commissioner was reasonable and neither capricious nor arbitrary.
The review application was dismissed and since
the matter was found
voluminous and complex enough, the costs of two counsel was ordered.
[8]
Courts
are slow to interfere with the exercise of a discretion by a
commissioner,
[1]
with a party
seeking to review or appeal the exercise of such a discretion
required to show that the decision-maker “
acted
capriciously, or upon a wrong principle, or in a biased manner, or
for unsubstantiated reasons, or committed a misdirection
or an
irregularity, or failed to exercise its discretion, or exercised its
discretion improperly or unfairly
”.
[2]
[9]
In
NUM
v Council for Mineral Technology,
[3]
this Court made it clear that without a reasonable and acceptable
explanation for the delay, an application for condonation should
be
refused. In finding that the appellant had not put up an acceptable
explanation for the delay, the commissioner relied on
Moila
v Shai N.O
[4]
in which this Court held that where
there
was either no acceptable explanation or no explanation at all for the
delay
the
refusal to grant condonation fell to be dismissed without a
consideration of the prospects of success
.
[5]
[10]
The
commissioner cannot be faulted for concluding that an acceptable
explanation for the delay had not been put up by the appellant.
The
appellant was aware that his services had been terminated on 30 June
2016. He had received notice of his retirement in different
communications from his employer prior to this date, to which he
elected not to respond, and had been paid out the retirement and
other employment benefits due to him. He was aware that the
retirement age reflected in the retirement fund rules was 60 and he
was under no illusion at 30 June 2016 as to his position. The
suggestion by him that it was only when he did not receive his salary
that he became aware of his dismissal is, on the facts, implausible.
He was party to communications that his position had been
filled by a
replacement and it was at his instance that a three-year consultancy
contract with MMI was negotiated, which contract
he ultimately
elected to refuse.
[11]
The
commissioner’s refusal to grant condonation in such
circumstances, having regard to a full conspectus of the facts, was
not unreasonable. This was so even given the commissioner’s
reliance on a 65-day delay. To the extent that this constituted
an
error, it did not alter the explanation put up by the appellant, nor
did it result in a misdirection, irregularity or an improper
or
unfair exercise of a discretion by the commissioner. The prospects of
success also do not aid the appellant. Given the clear
evidence that
the appellant had retired, that his retirement had accorded with the
retirement fund rules and the employer’s
own policy, he had
accepted his retirement benefits, raised no objection to his
retirement and had sought the conclusion of a three-year
contract as
an independent contractor his prospects of proving an unfair
dismissal on the facts were poor. In such circumstances,
the decision
to refuse condonation cannot be faulted.
[12]
It follows
that the review application was correctly dismissed by the Labour
Court and that the appeal must fail. As to costs, there
is no reason
as to why costs should not follow the result. No basis has, however,
been put up to justify the costs of two counsel
and the nature and
complexity of the matter does not warrant such an order.
Order
[13]
For these
reasons, the following order is made:
1.
The
appeal is dismissed with costs.
____________________
SAVAGE
AJA
Coppin
JA and Murphy AJA agree.
APPEARANCES:
FOR
THE APPELLANT:
A
de Wet
Instructed
by Gillian & Veldhuizen Inc.
FOR
THE THIRD RESPONDENT:
G A Leslie & L W Ackermann
Instructed by Louis van
Zyl Attorney
[1]
Seardel
Group Trading t/a Romatex Home Textiles v Petersen
[2011]
2 BLLR 211
(LC) at para 13.
[2]
Masuku
v Score Supermarket (Pty) Ltd
(2013)
34 ILJ 147 (LC) at para 10.
[3]
[1999]
3 BLLR 209
(LAC) at 211G-H.
[4]
[2007]
ZALAC 1; [2007] 5 BLLR 432 (LAC).
[5]
At
para 37.