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[2003] ZALCJHB 2
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Gil and Another v Khuene Nagel SA (Pty) Ltd and Others (JR1549/02) [2003] ZALCJHB 2 (27 March 2003)
[COMMENT1]
Sneller
Verbatim/HVR
IN
THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR1549/02
Date heard: 27/03/03
Date
delivered: 27/03/03
In
the matter between
DOS
SANTOS GIL, ALFREDO JULIO
MATOS Applicant
and
KHUENE NAGEL SA (PTY)
LTD First
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION AND
ARBITRATION Second
Respondent
SICELO MTHETHWA
N.O. Third
Respondent
J
U D G M E N T
PILLAY
J
:
This is an application to review and set aside the ruling of the
third respondent commissioner who refused to condone the
late
referral for conciliation.
The applicant alleged
that he was dismissed on 30 April 2002. The referral to the
CCMA was received on 5 July 2002.
That, the commissioner
calculated to be 35 days outside of the stipulated 30 day
time limit for such referrals.
The
commissioner found that there was insufficient information before him
to make a finding on the prospects of success. The
crux of the
commissioner's reasons for refusing the condonation is as follows:
"The
applicant has failed to give a proper explanation regarding the delay
in referring the matter immediately after his dismissal.
The
Labour Appeal Court has held that where the reasons for the delay are
unacceptable, this in itself would justify the refusal
to grant
condonation...."
The
explanation for the delay given to the commissioner in the
application for condonation was that the applicant had engaged the
first respondent in settlement discussions. In the referral
form under the heading “Reasons for Lateness” the
applicant stated as follows:
"The
reason/s that applicant referred the matter late is applicant was
attempting to negotiate settlement with the respondent
and put
proceedings proceedings on pending. "
The applicant gave no
further details as to when such communications with the respondent
took place. No dates were provided
in that regard in the
referral.
In this application for
review it appears that the applicant made no attempt to contact the
respondent until about 9 May 2002.
However, that
information was not part of the application for condonation before
the Commissioner.
In the absence of
sufficient details relating to the settlement the commissioner was
entitled to come to the conclusion that he
did.
The commissioner further
found that in a letter dated 29 May addressed to the director of the
first respondent the applicant indicated
for the first time that he
was prepared to settle the dispute. The commissioner had
no information that there were negotiations
before 29 May.
On the information before
the commissioner it appears that the applicant only took steps to
challenge his dismissal on 29 May 2002.
The commissioner appears
to have rejected the explanation on the further grounds submitted by
the first respondent namely, that
the applicant had not engaged it in
settlement negotiations and that the applicant was not its employee.
In reviewing his ruling
the court is required to consider what information was before
the commissioner at the time. It is
not based on information that the
court now has.
The
affidavit launching the application for condonation does not make out
a full case. The applicant states in this review
that he was
not aware of the first respondent's attitude as he had not received
the letter dated 3 June 2002, which appears at
page 40 of the
bundle. That letter informed the applicant's representative
namely, M L Consultants that the first respondent
denied that the
applicant was employed by it, that it dismissed the applicant and
that the applicant was owed any money.
The applicant's
representative replied to that letter on 10 June 2002.
When the applicant applied for condonation
on 4 July 2002 he
made no reference to that letter. Nor did he provide any
explanation or response to the first respondent’s
stance.
The probability of the
applicant not being aware of the first respondent’s denial of
the existence of an employment relationship
and that he was dismissed
are remote. If I were to accept the submission made on his
behalf that he was not so aware then
I must also accept that the
representative put his case to the first respondent without having
consulted the applicant. That
is hardly likely.
However, that is not in
itself destructive of the applicant's case. The applicant
failed to make out a full case which set
out clearly and convincingly
that he was entitled to condonation.
It
is submitted in this application for review that he filed a reply to
the first respondent’s answering affidavit
in the
condonation application. Therein he made out a full
case. Even though the reply was delivered three days
late, the
commissioner ought not to have given her ruling without having had
regard to the reply. So it was submitted.
The commissioner made his
ruling on the same day on which the reply was due. There is no
evidence as to time when he made
his ruling, i.e. whether it was made
after hours by which stage the time for filing a reply might have
expired or whether it was
made before that time. In any event,
the fact is that the reply was only filed three days later.
Consequently the court
cannot come to the conclusion that the making of the
ruling on the day on which the replying
affidavit was due was an
irregularity.
The second submission in
that regard was that the applicant ought to have been given an
opportunity to seek condonation for the
late filing of his reply.
The commissioner was
perfectly entitled to make a ruling once the time limit for the reply
had expired.
The commissioner would
obviously have been
functus officio
thereafter and
would not have been able to consider any application to condone the
late reply, even if one had been
made.
The third submission in
that regard was that the new rules of the CCMA which allow the filing
of a reply within seven days instead
of five days should have
applied.
There is no basis in law
on which that submission can be sustained. If the commissioner
applied such time limits as he did
according to the rule then in
force then the award cannot be reviewed.
Consequently, the
commissioner was not obliged to take into account material in the
replying affidavit.
Counsel for the applicant
urged me to hold that the commissioner ought to have called for
further evidence.
The commissioner had
sufficient facts to make a decision. The applicant had a duty
to make out a full case in its founding
affidavit not in the reply.
If he failed to do so, the Commissioner cannot be faulted.
In this case the
applicant also had the opportunity to seek legal and expert advice
before referring the dispute to the CCMA.
In all the
circumstances, the application for review is dismissed
with costs.
---oOo---
________________
JUDGE
D PILLAY
APPEARANCES:
FOR THE
APPLICANT
: ADVOCATE W. DAVEL
INSTRUCTED
BY
: MARQUES ATTORNEYS
FOR
THE RESPONDENT :
DION MASHER
INSTRUCTED
BY
: BELL DEWAR AND HALL
[COMMENT1]
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