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[2002] ZALCJHB 18
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Ncube v CCMA (JR761/02) [2002] ZALCJHB 18 (20 November 2002)
[COMMENT1]
Sneller
Verbatim/MLS
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR 761/02
DATE:
2002-11-20
In
the matter between
T
NCUBE Applicant
and
CCMA Respondent
J
U D G M E N T
LANDMAN
J
:
This is an application which Mr Ncube has brought to review and set
aside a condonation ruling which was handed by a commissioner
of the
CCMA on 28 December 2001.
It appears that Mr Ncube
was dismissed by his employer, Mr Samson. He has filled
in his application form indicating
that he does not know the reason
why he was dismissed.
He has also set out in
his application form for condonation the fact that he presented
himself timeously at the CCMA offices but
that its computer was
down and he was asked to come back. He went back within a
week and filed his referral of
his dispute against his employer.
The CCMA decided that his
referral was late and a commissioner was appointed to consider the
matter. The commissioner
made the following determination
and she did so although Mr Samson, the employer, had not made any
representations.
She says:
"I have considered
the applicants's submissions and I have decided to refuse condonation
in this matter for the following reasons:
1.
The degree of delay in this matter is a substantial one.
2.
The explanation that the applicant had advanced is not acceptable, an
explanation for the
delay of some 30 days while accepted that the
CCMA computers may have been off line when she (sic) returned her
forms on 25 September
2001, however, she could have handed her forms
in. Moreover, she has stated that she filled in the CCMA
forms on 25
September but she has not accounted this as to why it
took her until 25 September 2001 before she approached the CCMA.
The applicant did not
provide any details about the circumstances of her dismissal.
The statement no hearing held is
vague. This submission
has weakened the applicant's chances of showing good cause as to why
the dispute should be condoned
considerably.
I have also consider the
issue of prejudice and I accept that if condonation were refused the
applicant may be prejudiced.
However, in this case these
does not outweigh the substantial delay and the poor explanation for
the delay.
In this matter the
applicant has not shown good cause as to why the dispute should be
condoned. Condonation is refused."
In my opinion the
condonation ruling is reviewable. Firstly, as it is accepted that the
CCMA contributed to the late referral of
the dispute insofar as its
computers were down and it did not accept the documents at that
stage.
What the precise
circumstances are is not known but whatever they were, they were
within the knowledge of the CCMA and they should
have been placed
before the commissioner in some detail.
In addition it is the
applicant's case that he does not know why he was dismissed.
The Act provides that if an employee
has been dismissed and does not
know the reason for the dismissal, the employee may refer a dispute
about this dismissal to the
CCMA. Once this is accepted
then it must follow that an employee whose condonation for
condonation is out of time,
and says that he or she does not know
what the reason is cannot be expected to provide a reason and it
follows in my opinion that
the commissioner overlooked this and that
this constitutes a gross irregularity.
In the circumstances
therefore the commissioner's ruling dated 28 December 2001 is
reviewed and set aside and the CCMA is ordered
to convene an
arbitration hearing within 30 days of today.
Mr Ncube is to obtain a
copy of this award to take it to the CCMA.
[COMMENT1]
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