About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2002
>>
[2002] ZALCJHB 30
|
|
Jayes v Radebe and Others (JR125/01) [2002] ZALCJHB 30 (7 August 2002)
IN
THE LABOUR COURT OF SOUTH BAFRICA
HELD
AT JOHANNESBURG
REPORTBALE
CASE
NO: JR125/01
In
the matter between:
ATHOL
ALISTAIR
JAYES Applicant
and
SIPHO
RADEBE First
respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION Second
Respondent
THE
STANDARD BANK OF SOUTH
AFRICA
LIMITED Third
Respondent
JUDGMENT
MASERUMULE
AJ:
1.
The Applicant seeks an order reviewing and setting aside a ruling
made by the first respondent in terms of which he refused to
condone
the late referral to conciliation of a dispute involving the alleged
unfair dismissal of the applicant. The referral to
the CCMA was 947
days late, although in the first respondent’s ruling, it is
simply sated that the referral is more than
850 days late. The
difference is not material, it being common cause between the
applicant and the third respondent that the period
of delay is long.
2.
The applicant’s employment terminated on 16 January 1998. It is
in dispute whether the termination amounts to a dismissal
or was by
consent. It appears from the applicant’s condonation
application that he claims constructive dismissal.
3.
The applicant referred an alleged unfair dismissal dispute to the
CCMA on 16 October 2000 and applied for condonation for the
late
referral of the dispute. This application was supported by a fairly
lengthy affidavit and annexures. The third respondent
did not file an
answering affidavit within the period prescribed by the CCMA rules.
4.
On 8 December 2000, the first respondent made a ruling dismissing
applicant’s application for condonation. The ruling consists
of
five paragraphs, the material portion of which reads as follows:
“
I have applied
my mind to all the issues raised by the Applicant in its (sic)
support for the application.
S191(2) of the Act,
requires the Applicant to show good cause for its application to be
successful. In addition the purpose of the
Act is to have disputes
resolved as expeditiously as possible. Having applied my mind to all
the issues raised by the Applicant
and (sic) I am not persuade that
the Applicant has shown good cause for his application to succeed. As
a consequence the application
stands to fail.”
5.
The material facts that can be gleaned from the affidavit
submitted by the Applicant in support of his application for
condonation can be summarized as follows:
5.1
he had been in the employ of the first respondent
for some thirty
five years at the time that his employment contract terminated, just
as his father had been employed by the first
respondent for some
forty seven years;
5.2
he served as the managing director of the Stanbic
Bank Zimbabwe for
the period 1995 until September 1997;
5.3
on his return to South Africa, the third respondent
offered him the
position of Divisional general Manger, Homeloans Division, which
required that he should stay in Johannesburg and
work out of the
third respondent’s head office;
5.4
he was reluctant to move from Cape Town, where
his wife and children
were, because his wife was not keen to move. He informed the third
respondent of this fact;
5.5
the third respondent wanted the applicant to move
to Johannesburg
with is wife to commence his new duties in January 1998 and the
applicant kept raising the fact that his wife could
not move with him
at the same time;
5.6
numerous correspondence passed between the applicant
and the third
respondent regarding his move to Johannesburg, and centered on third
respondents apparent insistence that the applicant
should move with
his wife and the applicant’s indication that this was not
possible;
5.7
eventually and in a letter dated 16 January 1998,
the third
respondent wrote a letter to applicant in which it was stated, inter
alia, that
“
..
we
regrettably have come to the point where unless you are able to meet
the Group’s requirements for executive performance
based at our
head offices in Johannesburg, there is no alternative but for you to
leave the Group. You indicated an acceptance
that we have
unfortunately reached this point and I accordingly, with regret, set
out the terms of your termination of service,
which has immediate
effect, as follows:.”
5.8
The applicant took up employment with BOE as Regional
Manager, Cape,
on 28 April 1998, where he remained until June 2000 when he left;
6.
The applicant offered different explanations for the delay in
referring his alleged unfair dismissal dispute to the CCMA for
conciliation. The different reasons offered are as follows:
6.1
he was in deep depression as a result of his sojourn
in Zimbabwe and
the humiliating manner in which he left the service of the third
respondent. The applicant had attached a report
by a clinical
psychologist to his affidavit to support his assertions;
6.2
he was unaware that he could refer a dispute to
the CCMA and was
consequently not aware of the thirty day time-limit, in part because
the CCMA came into existence whist he was
in Zimbabwe;
6.3
he consulted with an attorney, Piet Faber, in June
1998 and was
informed about the need to complete referral forms. He was also
advised that the process would be highly traumatic
and stressful and
he felt that he would not be able to cope with it;
6.4
he accepted and acted on a suggestion from Piet
Faber to seek a
meeting with Dr Strauss, the non-executive chairman of the third
respondent, to discuss the termination of his
employment with him. He
subsequently met with Dr Strauss around June 1998 and later received
a note form the latter that he could
not assist him(the date of the
note is not stated nor is the note attached to the affidavit);
6.5
Piet Faber had advised him that is case was a “50/50”
one, that he would get one year’s salary at most if he pursued
it, which he felt was not sufficient to justify going through
trauma
associated with such litigation;
6.6
He was reluctant to go to court against the third
respondent as he
hoped that there could be a reconciliation and he could resume
employment with the third respondent;
6.7
He consulted with Neil Van Zyl, a labour consultant,
“during
1999” who advised him to propose independent mediation to the
third respondent. He acted on this advice and
sent a letter to the
third respondent with such a proposal but never received a reply;
6.8
He communicated with Van Zyl in June 1998 and the
latter said he
would “apply for condonation and speak to an advocate.’
The applicant states that he never heard from
Van Zyl again, although
he himself does not allege that he made any attempts to get hold of
Van Zyl;
6.9
His wife met with a representative of the third
respondent on 10
August 2000 and discussed applicant’s position, but nothing
came of it;
6.10
His wife phoned Andrew Levy and Associates on 11 September 2000 and
gave
them instructions to pursue the matter. The applicant does not
say whether anything was done and if not, what the problem might
have
been.
7.
The above explanation is what was before the first respondent when he
considered applicant’s application and made his ruling.
The
question is whether the ruling is irrational or not justifiable,
having regard to these facts, see
Shoprite Checkers (Pty) Ltd v
Ramdaw NO & Others
(2001) 21 ILJ 1603 (LAC).
8.
Mr Landman
, appearing on behalf of the applicant,
submitted that apart from emphasizing the fact that the referral was
some 850 days late,
the first respondent failed to provide any other
reasons for concluding that the applicant failed to show good cause
for the late
referral. The failure to provide other reasons, so
submitted
Mr Landman
, gives rise to an inference that the
first respondent did not apply his mind to the facts. He further
submitted that first respondent’s
failure to give reasons for
rejecting applicant’s explanation and the absence of any
comment on the prospects of success,
indicate that the first
respondent did not understand how to exercise his discretion
properly. I pause here to mention that the
review application was
served on the first and second respondents. The second respondent
filed a notice in which it is stated that
the “
First
Respondent stands by the reasons for his decision as furnished in
Condonation Ruling GA118185…and has nothing further
to add
thereto.”
9.
Mr Landman
further submitted that the first respondent
failed to take into account applicant’s prospects of success,
which he submits
are good. In this respect, he submitted that third
respondent’s insistence that applicant’s wife should
immediately
relocate to Johannesburg with him was not only
unreasonable, but also discriminatory. This demand, so he submitted,
made continued
employment for applicant intolerable and constitutes
an unfair dismissal. Had the first respondent applied his mind to
applicant’s
prospects of success, was the further submission,
he would have condoned the late referral, particularly because in the
absence
of an opposing affidavit from the third respondent, it could
not be said that third respondent would suffer any prejudice.
10.
Mr Redding
, appearing on behalf of the third respondent,
submitted that not only is the first respondent’s ruling a
rational one, but
also correct. He submitted that the facts before
the first respondent indicated that the delay was inordinately long,
the explanation
was woeful, and based on applicant’s alleged
depression, in fact bordered on the dishonest, given that the
applicant had
in fact consulted an attorney in June 1998 and was
employed in a senior position from April 1998 until June 2000. As
regards prospects
of success, Mr Redding submitted that the
termination of applicant’s employment was consensual and that
the prospects of
success are thus very slim. Mr Redding submitted
that given the long delay, an inadequate and unacceptable
explanation, coupled
with weak prospects of success, justified first
respondent’s refusal to condone the late referral of
applicant’s dispute
to the CCMA.
11.
I intend adopting the approach of Seady AJ in Moolman Brothers v
Gaylard NO & Others (1998) 19 ILJ 150 (LC). Her remarks at 156A-D
are apposite:
“
This is not an
appeal from the decision of the commissioner. It is an application to
review and set aside her decision on the grounds
that grossly
unreasonable or seriously irregular. I doubt that this court, on the
facts before the first respondent would have
granted condonation.
However, this does not make first respondent’s decision
reviewable.”
12.
Admittedly, first respondent’s reasons are to say the
least, cursory. He simply states that he applied his mind to all the
issues raised by the applicant, without specifying them. Neither does
he make any specific reference to the factors set out in
Melane v
Santam Insurance Company Limited
1962 (4) SA 531
(A), perhaps
save for the period of delay. Having decided not to add anything to
the reasons that he had already given, it is fair
to infer therefrom
that the first respondent has no other reasons to offer for his
decision.
13.
Accepting the submission made on behalf of the applicant that
first respondent put too much emphasis, if not the only emphasis, on
the period of delay, does such an approach justify an interference
with his decision, bearing in mind that he was exercising a
discretion? I do not believe so.
14.
There is no doubt that the period of delay is excessive. A delay
of more than two and a half years is excessive, or as Seady AJ
prefers to call it, egregious, particularly having regard to the fact
that the referral was required to have been made within thirty
days.
As the first respondent correctly pointed out in his ruling, the
Labour Relations Act requires that disputes be expeditiously
resolved. A delay such as the one here does nothing to achieve that
objective.
15.
There is yet another consideration that militates against
interference with first respondent’s ruling, and that relates
to the explanations tendered by the applicant for the delay. Whilst
the first respondent does not directly refer to these explanations,
he does state that he considered all the issues. One of the issues
dealt with at length by the applicant is why he did not refer
the
dispute within the prescribed period. In this regard, I agree with Mr
Redding’s submission that the explanations offered
are woeful.
I would go as far as to say that they are also contradictory and
inconsistent. The applicant relies heavily on the
fact that he was
depressed as a result of what he considered to have been unfair
treatment by the third respondent. It is not difficult
to sympathise
with the applicant in this regard, having regard to his long and
apparently exemplary service with the third respondent.
What is
difficult to understand is how the applicant could be so depressed as
to be unable to refer his dispute for conciliation,
and yet
simultaneously be able to occupy such a senior position as a Regional
Manager of a financial services company for two years,
obtain advice
from an attorney regarding his dispute with the third respondent and
act on such advise. I refer in this regard to
hi meeting with Dr
Strauss.
16.
It is clear from applicant’s own affidavit that one of the
reasons that he decided against pursuing the dispute was because
of
what he considered to be insufficient compensation that he could get,
which is inconsistent with the heavy emphasis that he
has placed on
his depression as the explanation for the delay. It also appears that
the applicant, out of some sense of loyalty,
(it is open to question
whether same was misguided), did not want to litigate against the
third respondent and chose to rather
explore the possibilities of an
amicable solution, which is confirmed by his meeting with Dr Strauss
in June 1998, the letter that
he sent the third respondent proposing
independent mediation and the meeting between his wife and a
representative of the third
respondent on 10 August 2000.
17.
There are also unexplained periods of delay, such as the year
1999. In his affidavit, the applicant refers to being advised b Van
Zyl to refer an unfair discrimination dispute to the CCMA (which does
not appear to have been done as the third respondent is unaware
of
such a referral) and to propose independent mediation. The latter
proposal is contained in a letter dated 14 January 2000, suggesting
that it was made in late 1999. For the whole of 1999, there is no
other indication of what the applicant did to pursue the matter.
18.
In the light of the inadequate and in my view, unacceptable
contradictory and inconsistent explanations offered by the applicant,
I cannot find that first respondent’s ruling is irrational,
having regard to his statement, terse as it is , that he applied
his
mind to all the issues raised by the applicant. First respondent’s
ruling is fully justified, having regard to all the
facts that were
before him. This is a case where the long period of delay, coupled
with an unacceptable explanation far outweighed
whatever prospects of
success the applicant may have,
cf NUM v Council for Mineral
Technology
[1999] 3 BLLR 209
(LAC) at 211G-I.
19.
It needs to be said that in any event, applicant’s
prospects of success cannot be said to be so strong as to outweigh
the
long deal and weak explanation. The applicant relies on alleged
constructive dismissal. There is an indication from the letter of
termination quoted above that there may well have been consensual
termination. It cannot, in the circumstances, be said that
applicant’s
prospects are more than average.
20.
This is a case where even if the court were to consider
applicant’s application for condonation afresh, based on the
same
set of facts that were before the first respondent when he made
his ruling, the outcome would not be any different. In the
circumstances,
applicant’s review application must fail. Both
parties sought costs if successful and in any event, there is no
reason why
costs should not follow the result, having regard to the
requirements of the law and fairness.
21.
The application for review is accordingly dismissed and applicant
is ordered to pay third respondent’s costs.
On
behalf of the Applicant: Adv A Landman, instructed by Joubert
Attorneys
On
behalf of Third Respondent: Adv A Redding, instructed by Deneys Reitz
Inc.
Date
of hearing: 2 August 2002
Date
of judgment: 7 August 2002.
___________________________
MASERUMULE
AJ