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[2003] ZALCJHB 4
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Khumalo v Bargaining Council for the Entertainment Industry of SA and Others (JR1158/02) [2003] ZALCJHB 4 (14 April 2003)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE NO. JR1158/02
In
the matter between:
PATRICK
KHUMALO
APPLICANT
and
BARGAINING
COUNCIL FOR THE
ENTERTAINMENT
INDUSTRY OF SA
FIRST
RESPONDENT
D
J CLAASSEN (Deceased)
SECOND
RESPONDENT
THE
MAGIC COMPANY (PTY) LTD
THIRD
RESPONDENT
JUDGMENT
NDLOVU AJ
[1]
The Applicant was dismissed by his former employer (the Third
Respondent herein) on 4 April 2002 after a misconduct enquiry.
He was
not satisfied with the dismissal, which he claimed was both
substantively and procedurally unfair. Hence, he referred
the
dismissal dispute to the CCMA for conciliation, on the same date,
that is 4 April 2002.
[2]
No conciliation process was conducted by the CCMA when it turned out
that the dispute ought to have been referred to the First
Respondent
(the Council) which was, presumably, the accredited council, in terms
of Section 127 of the Labour Relations Act No.
66 of 1995 (the Act),
to perform conciliation functions and under whose registered scope
the Third Respondent’s industry
fell.
[3]
By the time the Applicant finally referred the dispute to the
Councils it was already late by 27 days, according to the Applicant’s
calculation. In his Statement of Claim, he did not
specify the exact date on which he referred the dispute to the First
Respondent. The Council, however, calculated the lateness as
being 24 days, alleging that the dispute was referred to it
on 27 May
2002. This was also confirmed by the conciliator (the
Second Respondent herein) in his ruling, which is the
subject of this
review.
[4]
In the ensuing application for condonation of the Applicant’s
late referral of the dispute for conciliation, the Second
Respondent
gave a ruling whereby he declined the condonation application.
It is against this ruling that the Applicant
seeks an order reviewing
and setting it aside. The Second Respondent has since
passed away.
[5]
The Applicant contended that he referred the dispute to the CCMA on
10 April 2002, which was within the 30 days’ period
provided
for in the Act. He said he completed the referral forms
which he had taken to Ms Debbie Pauw, the Third Respondent’s
Human Resources Manager, for her attention. He further
alleged that at the time that he took the forms to Miss Pauw,
the
latter was on leave, which resulted to the referral forms lying on
her desk for about two weeks.
[6]
According to the Applicant, when Ms Pauw eventually attended to the
forms she had then pointed out to him that he ought to have
referred
the forms to the First Respondent and not the CCMA. When he came to
the Council’s offices he had encountered a further
delay which
was occasioned by the fact that the Council’s agent, Mr Maleka,
to whom he had been referred for assistance in
terms of filling in
the forms, was on sick leave. He claimed that he had prospects of
success in the main application.
[7]
The Third Respondent opposed the application. Ms Debbie
Pauw, referred to above, deposed to the answering affidavit
on behalf
of the Third Respondent. She admitted, among other
things, that the Applicant approached her with the referral
forms.
She had then referred him to the Council. She denied that the
referral papers lay on her desk for two
weeks as alleged by the
Applicant. However, she did not specifically deny that at some point
she was on leave when the Applicant
might have initially approached
her with the referral forms. She denied that the
Applicant had any prospects of success
in his main application.
[8]
The Court is empowered to entertain this application in terms of
Section 158(1)(g) of the Act.
[9]
In an application for condonation the Court has a discretion, which
it must exercise judiciously. Further, the factors
which must
be taken into account when considering the application are now
settled law. In the well-renown case,
Melane v Santam
Insurance Co Ltd 1962(4) SA 531(A),
the Appellate Division held
as follows:
“
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are
the degree of lateness, the explanation therefor, the prospects of
success, and the importance of the case. Ordinarily
these facts
are interrelated: they are not individually decisive, for that would
be a piecemeal approach incompatible with a true
discretion, save of
course that if there are no prospects of success there would be no
point in granting condonation. Any
attempt to formulate a rule
of thumb would only serve to harden the arteries of what should be a
flexible discretion. What
is needed is an objective
conspectus
of
all the facts. Thus a slight delay and a good explanation may
help to compensate for prospects of success which are not
strong.
Or the importance of the issue and strong prospects of success may
tend to compensate for a long delay.
And the Respondent’s
interest in finality must not be overlooked. I would add that
discursiveness should be discouraged
in canvassing the prospects of
success in the affidavits”.
(at
532 C - F)
[10]
What purports to be the Second Respondent’s Ruling are notes
covering some 4½ pages of a Bench pad.
The heading
of the notes reads: “My reasons for not granting
condonation”. They are in manuscript form.
There is
no signature or name appended at the end of the notes. I
would assume that the intention was to have the notes
typed and then
signed by the Second Respondent. Otherwise there would have
been no sense in Second Respondent writing the
Ruling and not signing
it at the same time. This situation poses a problem for the
Court in accepting an unsigned ruling.
[11]
In the same way as an arbitration award, it seems to me that where a
conciliator has made a Ruling of the nature as in the
present case,
such Ruling must be transcribed
(See
Rule 7(A)(5)-(7))
and be signed by the
maker thereof.
(See Section
138(7)(a) of the Act).
However,
the Second Respondent is now deceased. Therefore,
although the Ruling could be transcribed, it would still
remain
unsigned. In this regard, the Council submitted a copy of its
letter dated 9 July 2002 addressed to the Applicant,
whereby the
Council sought to amplify the Second Respondent’s Ruling and
his reasons therefor. In my view, this attempt
or effort by the
Council is not permissible. To the extent that the letter
purports to verify the Second Respondent’s
reasons for his
Ruling, this is inadmissible hearsay evidence.
[12]
Although I have no reason to disbelive the averment that the Second
Respondent has since passed away, the informtion of this
kind should
be brought to the Court’s attention in a formal manner.
For instance, one would have expected that such
submission was
accompanied by the death certificate of the Second Respondent.
[13]
In the light of the circumstances of this case I decided, however, to
proceed and deal with the application on the basis of
the papers
presented before me, which I propose to do presently.
The degree of
lateness:
[14]
It is common cause that the Applicant was dismissed on 4 April 2002.
The 30-day period envisaged in Section 191(1)(b),
therefore, expired
on 4 May 2002. According to both the Council and the Third Respondent
the referral to the Council was made on
27 May 2002. The
Applicant did not indicate his version in this regard. The
referral forms themselves were not in the
Court file.
[15]
I am inclined, therefore, to accept the Council’s and the Third
Respondents’ version that the referral to the Council
was made
on 27 May 2002. However, I find the degree of lateness to be 23
days, and not 24 days, as submitted by the Council
and the Third
Respondent. The Applicant alleged that the lateness was 27
days, which was way out. In any event, without
indicating the
date when he delivered the referral to the Council, it is not
possible to discern how he came to determine 27 days
lateness.
[16]
It is not disputed that the Applicant initially delivered,
erroneously, the referral forms to the CCMA, instead of the Council.
In his Statement of Claim he stated that this was on 10 April 2002.
However, in his ruling, the Second Respondent held that
the Applicant
referred the dispute to the CCMA on 4 April 2002, the date of the
dismissal. Further, according to the Second
Respondent’s
ruling, on the same day (that is, 4 April 2002) the Applicant
approached Ms Pauw with the referral forms.
[17]
The Applicant averred that the factors which contributed to him
referring the dispute late to the First Respondent included
the
following:
17.1
The initial erroneous referral to the CCMA, already mentioned above.
17.2
Ms Pauw being on leave when the Applicant delivered the CCMA referral
to her, thus causing a 2 weeks’
delay of the referral forms
lying on Ms Pauw’s desk.
17.3
The Council’s agent, Mr Maleka who was to have assisted the
Applicant in completing the referral
forms and who was reportedly on
sick leave when the Applicant went to see him.
17.4
The Applicant had an “ongoing eye infection” which
presented an “acute” condition
during the relevant period
of the referral.
[18]
In his ruling, the Second Respondent’s appeared to have relied
on the information he apparently gathered from Ms Pauw
and Mr
Maleka. However, the ruling did not reflect whether these two
persons testified before him (the Second Respondent)
or whether
someone told him that such were the versions of Ms Pauw and Mr
Maleka. For instance, the Second Respondent stated
that:
“
(Ms
Pauw)
informed
him
(the Applicant) that there is a Bargaining Council and that this
office has jurisdiction to deal with disputes arising in the
industry”; and that “Agent Maleka also
explained
to
the Applicant that the application for referral of dispute has to be
served on the employer within 30 days .....”.
[19]
It is not clear,
ex facie
the
ruling how Ms Pauw
so informed
the Second Respondent and how Mr Maleka
so
explained
to the Applicant”.
The Second Respondent further recorded that Mr Maleka
denied
the Applicant’s allegation that he (the
Applicant) tried on at least two occasions to contact Mr Maleka on
his cellphone,
but in vain. Again, it is not clear how such
denial was obtained from Mr Maleka. In any event, it was
not reflected
in the Ruling why the Applicant’s allegation was
rejected and Maleka’s denial accepted.
[20]
The Applicant’s alleged eye infection testimony was also
rejected, apparently for the reason that he could not produce
“sick
notes” from the doctor or hospital. However, there is no
suggestion that the Applicant claimed to have
gone to hospital or
seen a doctor for his eye ailment.
The prospects of
success:
[21]
The Applicant was charged with 6 counts of misconduct, namely (as
cited from the Ruling):
21.1
Disorderly behaviour;
21.2
Inciting arguments and fights at work;
21.3
Insolence/Rudeness to Management;
21.4
Abusive language;
21.5
Undermining the labour relationship;
21.6
Sabotaging of work in that he allegedly copied invoice numbers
incorrectly and handed them to the data
capture for processing.
[22]
According to the Second Respondent’s Ruling, the Applicant was
convicted on all charges except on the charge relating
to “foul
language”, which was count 4. To the contrary, however,
the Third Respondent, in its answering affidavit,
alleged that the
Applicant was only acquitted on the charge of “Sabotage”
(Count 6). Furthermore, the Third Respondent
averred that there
were in fact 7 charges with which the Applicant was arraigned, the
seventh one being the “Alleged refusal
to work co-operatively
with his colleagues and management”. However, the Ruling was
silent about this charge.
[23]
With the exception of “Sabotage”, there was absolutely no
hint whatsoever in the Ruling of how the offences were
allegedly
committed by the Applicant. What is there are only the names or
nature of the so-called misconduct offences.
Accordingly,
on the basis of the Ruling, it is not possible to know how the issue
of prospects of success was determined.
[24]
At the end of the Ruling the Second Respondent made what appears to
be a conclusive pronouncement:
“
The
Applicant will not be successful if condonation is granted”.
I
do not understand on what basis the Second Respondent reached that
conclusion. Besides, he was not competent to prejudge
the final
outcome of the dispute. This fell outside of his domain.
He, therefore, acted
ultra vires
his powers in this regard. In my view, what
he said did not relate to the issue of prospects of success, but he
went beyond
and prejudged the final outcome of the matter.
The importance of
the case to the parties:
[25]
There is no doubt that the case is particularly important to the
Applicant, who lost his employment and, therefore, his source
of
income from which he supported himself and his family.
[26]
The fact that the Applicant referred the dispute (albeit erroneously)
to the CCMA on 4 April 2002, being the very date of his
dismissal and
thereafter referring the CCMA referral forms to Ms Pauw on the same
day (in terms of the Second Respondent’s
Ruling) is, to me, a
clear indication of how serious and important the Applicant regarded
this case.
Perejudice to
either party:
[27]
Ordinarily, a party to a dispute is entitled to be heard before his
or her fate in the dispute is determined. This is
the position
under common law (the
audi alteri partem
rule) and the Constitution of the Republic of
South Africa Act 108 of 1996.
[28]
On the contrary, the Third Respondent conceded that it would suffer
virtually no prejudice if the condonation application was
granted.
In this regard, the Third Respondent, in its letter of 9 July 2002
(referred to above) stated:
“
With
regard to the prejudice to the other party, Ms Pauw confirmed
that her witnesses involved with this particular matter
are all still
in the employ of the Magic Company (the Third Respondent). The
only possible prejudice that the company could
experience would be
the costs involved should the matter proceed to arbitration or Labour
Court”. (
the
penultimate paragraph
).
[29]
The Third Respondent’s alleged potential prejudice would only
relate to a legal cost factor which, in my view, is not
comparable to
the prejudice already suffered by the Applicant and further prejudice
he stood to sustain if the application was
declined.
[30]
Having analysed the Second Respondent’s Ruling aforegoing, I am
of the view that it was not rationally justifiable in
relation to the
reasons the Second Respondent gave therefor and on the basis of the
material presented before him.
For instance,
ex
facie
the papers before me, he appeared
to have considered matters which were hearsay, as alluded to above.
(See: Carephone (Pty) Ltd vs Marcus N.O.
and Others. [1998] 19 ILJ 1425 (LAC), at 1435 E-F).
[31]
It is also remarkable that the Third Respondent does not seem to have
come to Court with clean hands. The Applicant appears
to have
filed his Notice in terms of Rule 7A(8)(b) on 2 September 2002,
whereby the Applicant stated that he stood by his notice
of motion.
There is no indication when this notice was served on the Third
Respondent by the Applicant. It would, therefore,
not be
possible to compute the time limit by which the Third Respondent was
required to file its answering affidavit, in terms
of Rule 7A(9).
However, by its even conduct, it is apparent that the Third
Respondent filed its answering affidavit out of
time too.
[32]
With respect to paragraph 4.1 and 4.2, in particular, of the Third
Respondent’s answering affidavit, I do not think that
the Third
Respondent was assisting the Court in any way by referring, for
instance, to being “a few days late”, when
it knew, or
ought to have known, how many days late it was in its filing of the
said answering affidavit. I cannot comprehend
why the Third
Respondent did not state the precise date it received the Rule 7A(8)
Notice, to enable the determination of the degree
of its lateness.
All that is known is that the Third Respondent filed its answering
affidavit on 18 September 2002, which
would be 6 days late, if it
received the Rule 7A(8) Notice on 2 September 2002, because in terms
of Rule 7A(9) the answering affidavit
would have had to be filed
within 10 days from 2 September.
[33
I do not know whether the Third Respondent did not regard it as
hypocritical and unfair on its part when it saw fit to oppose
its
opponent’s application for condonation of late filing of a
court process, which opposition was itself filed late (by
the Third
Respondent) and no condonation application therefor having been
properly made (by itself) before the Court. Indeed,
no cogent
explanation for its lateness has been submitted, save to say that the
“
Third Respondent has had to
conduct a search for information relevant to this matter and (that)
this exercise has taken a number
of days to complete”.
To my mind, this was a vague explanation.
It was only intended to evade explaining the real reason for the
lateness.
[34]
Having considered the application, I make the following order:
34.1
The Second Respondent’s Ruling in Case No. 0064/02 whereby the
Applicant’s application
for condonation of his late referral of
the dispute to the Council, for conciliation, was declined, is hereby
reviewed and set
aside; and substituted therefor with the following:
“
The
application for condonation is granted”.
34.2
The Applicant is granted leave to refer the dismissal dispute to the
Council, for conciliation, within
30 (thirty) days from the date of
this Order.
34.3
There is no order as to costs.
______________
NDLOVU
AJ
Appearances:
For
the Applicant
: In
person
For
the Third Respondent
:
Mr F A
Ponelis
Date
of Hearing
: 26
March 2003
Date
of Judgment
: 14 April
2003