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[2008] ZALCJHB 50
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South African Post Office Ltd v CCMA and Others (JR436/2006) [2008] ZALCJHB 50 (28 February 2008)
LOM
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IN THE LABOUR COURT OF SOUTH
AFRICA
BRAAMFONTEIN
CASE
NO:
JR436/2006
2008-02-28
In
the matter between
SOUTH
AFRICAN POST OFFICE
LIMITED APPLICANT
And
CCMA
1
st
RESPONDENT
COMMISSIONER
S
KHOZA 2
nd
RESPONDENT
CWU
obo NDLOVU J
P
3
rd
RESPONDENT
J
U D G M E N T
CELE
J
:
The
applicant seeks to have an arbitration award dated 31 October
2005, issued by the second respondent as the
commissioner of the
first respondent, reviewed and set aside. The applicant wishes to
have the matter thereafter remitted to the
first respondent for a
de
novo
arbitration hearing before a
commissioner other than the second respondent. As an
alternative to the remittal of the matter,
the applicant asked for a
substitution order to declare the reinstatement of Mr Ndlovu as
incompetent in the circumstances.
Mr Ndlovu in whose favour
the award was issued did not oppose the application. The review
application was filed out of the six weeks
period prescribed by
Section 145
of the
Labour Relations Act, 66 of 1995
, hereafter
referred as the Act. The applicant has filed a condonation
application having being granted an indulgence by this
court and this
indulgence was granted on 31 January 2008. Before that date there had
not been any application for condonation for
the late filing of the
review application. The condonation application has been
opposed at the instance of Mr Ndlovu.
Mr Labea appeared as a
union official on behalf of Mr Ndlovu whilst Advocate Lafuane
appeared for the applicant.
It is necessary to
revisit the background facts very briefly, and so the background
first:
Mr Ndlovu started working
for the applicant as a teller in February 1991. In 2002 he
was stationed at Emndeni, Soweto
at a branch known as Zwelithini
which was a pay point built within a supermarket. He
worked under the supervision of
the only colleague he had, one Mr
Xolani Clement Ntombela. A Miss Nancy Seroke operated a post
office savings account with
the applicant. She operated the
account through a savings book on which transactions would normally
be reflected. When
she transacted the account in order to pay
for school fees for her child, she realised that some money had been
unlawfully withdrawn.
In transacting through that savings book,
she would use her identity book in order to identify herself to the
post office tellers.
The discovery made by herself was on
25 November 2002. This is when an amount of R1 100
was according to her, unlawfully
withdrawn. The withdrawal
transaction was executed by Mr Ndlovu at Zwelithini Post Office
branch. He had used what
is referred to as a pin code or
authorisation number of Mr Ntombela in the performance of that
transaction. On that
day, namely 25 November 2002, Mr Ntombela
was off duty. Ms Seroke launched a complaint pertaining to the
unlawful withdrawal
of R1 100 from her post office savings
account.
The applicant
investigated the complaint through its Mr William Henry
Lang, this was his chief investigating officer.
There was
another second investigating officer who was involved in the matter.
Mr Ndlovu was then charged with a misconduct
described as
fraud.
The chairperson of the
internal disciplinary hearing, one Ms Muriel George, found
Mr Ndlovu to have committed the act
of misconduct with which he was
charged. She invited Mr Ndlovu to address her in
mitigation of the sanction. Mr Ndlovu
declined to mitigate.
The applicant’s
code provided for a final written warning sanction in cases of a
first offender where mitigatory factors are
given. Mr Ndlovu
was a first offender. A sanction of dismissal was imposed on him due
to the absence of mitigating factors
being adduced by him as he so
declined. He was aggrieved by the sanction of dismissal and he
referred an unfair dismissal
dispute for conciliation and
arbitration. The second respondent found the dismissal of Mr
Ndlovu to have been substantively
unfair and ordered the applicant to
reinstate him retrospectively. It is that order which is sought
to be reviewed and set
aside.
The arbitration hearing,
Mr Ndlovu put it beyond dispute that he executed the disputed
transaction. Mr Lang testified in the
arbitration hearing and
he said that Mr Ndlovu should have had his pin code as should have
been the case with Mr Ntombela, in other
words Mr Ndlovu should have
used his own pin code and not that of his colleague. According
to him, the use, the mere use
of Mr Ntombela’s pin code number,
was an indication that Mr Ndlovu processed the transaction unlawfully
and therefore in
the absence of the client and her savings book.
He said that no employee was authorised to use the other employee’s
authorisation or pin code number. He said that Mr Ndlovu knew
the procedure as he had been trained on the same. He
testified
that a transaction history showed that Ms Seroke lived in Midrand and
would withdraw money either at Halfway House or
at Marshalltown and
not at Zwelitha in Soweto.
Ms Ausie Swanepoel was
the second investigating officer, testified on the rules which the
applicant put in place for its tellers
to follow whenever they
effected withdrawals. She pointed out that there was a duty to
protect the clients from fraudulent
withdrawals. She really said
nothing particularly incriminatory against Mr Ndlovu.
Ms George said that she
had found, not only that the signature on the withdrawal slip of the
R1 100 transaction and Ms Seroke’s
savings book, did not
correspond but that Mr Ndlovu had used somebody else’s
authorisation number to authorise the transaction.
According to
her Mr Ndlovu had conceded in the enquiry before her that he was
not supposed to have used the same pin code
number and therefore he
could not have explained why he did this to Ms George.
Accordingly Mr Ndlovu, went against the applicant’s
rule which
says nobody may use somebody else’s password under any
circumstances. She said that had Mr Ndlovu given
her mitigating
factors, she would have been in a position to give him the benefit of
doubt and not dismiss him. So much was
that evidence which
unfolded before the commissioner in the sense that Mr Ndlovu did
not really come up with a version that
disputed the execution of this
transaction.
The applicant for the
review canvassed some review grounds in its application, the founding
affidavit was attested to by Selby Labea,
and in that the following
appear as grounds for review: The arbitrator exceeded his
powers as a commissioner as he ordered
reinstated in circumstances
where that was not competent. The problems which the arbitrator
identified with the dismissal
impacted on procedural fairness which
would only warrant compensation. The award was made,
notwithstanding a finding by the
arbitrator that the respondent
indeed committed fraud, which finding denoted that the respondent was
dismissed for a valid reason.
So much for the review grounds
canvassed.
I then come back to the
reasons proferred for the delay. I have pointed out that the
application for review was late, it was
only filed very late, only
after the third respondent had insisted on this and had intimated
that the application was not properly
before court. In fact,
when the matter was last before court on 31 January 2008, it was at
the instance of the third respondent
who sought to have the review
application dismissed because of it not have been properly prosecuted
but the parties agreed that
the application was to be abandoned.
I point out that the
third respondent had initiated an application in terms of
Section
158(1)(c)
of the Act for the award to be made an order of court.
It is apparently in the prosecution of that application that they
came across the application for review. Any party who seeks an
indulgence from court for a late filing of a matter such as
a review
application, needs to profer amongst others three reasons for the
delay, prospects of success, the degree of lateness,
in other words
how far is the deviation from the rule and any prejudice to the other
party, the administration of justice and some
such considerations.
The parties have addressed me on this as these are issues that have
been traversed in their papers.
I look firstly then at
the reasons proferred by the applicant. These appear from
paragraph 10 of the founding affidavit and
this affidavit was
attested to by Nyiko Magayisa who said that it was in his legal
capacity as an employee of the applicant, as
a manager, labour law,
said the following:
“
The
applicant is a nationwide entity which has branches everywhere, in
every corner of this country and employs a huge staff compliment
which has 16 000 employees. The applicant’s head
office is situated in Pretoria. All decisions regarding
the
defense or institution of court proceedings involving the applicant
are made at head office. There is an internal practice
within
the applicant whereby any branches which receive an arbitration
award, have to relay such award to head office and obtain
the
latter’s directive as to the further conduct of the matter.
It is obvious that the
shear size of the applicant and the volume of matters it gets
involved in, dictate that it is not always
possible to seek and
obtain head office’s directive within the stipulated six weeks
for purposes of filing a review application.
In some instances,
the applicant fails to meet the deadline and consequently has to ask
for condonation. The present matter
is one of the matters
wherein the compliance with the six week period, could not be
achieved. In the light of this, an application
for condonation
should have been filed as soon as it became apparent that the
applicant was not going to make the deadline.
It was unbeknown to the
applicant’s head office that an application for condonation had
not been filed until the applicant
was alerted thereto by the third
respondent in May 2007. Up until that point, the file in
this matter was handled by
an employee relations manager in the
relevant branch of the applicant. The employee relations
manager took over the file
in 2006 after it was relayed back to the
branch from head office …”. I stop there.
When the matter was then
argued before me by Mr Lafuana, he struggled for words to try and
support this explanation. I put
a proposition to him that
according to this explanation, it must follow that an entity such a
government or a department of state
which employs much more than
16 000 employees would therefore find so much reliance in an
explanation such as this in not
complying with the timeframes that
are prescribed by the rules of this court. He realised the full
implications of this.
In fact, when Mr Labea took the stand, he
pointed out that this cannot be an acceptable reason for failing to
comply with the timeframe,
to this I agree with him. He quickly
pointed out that there are a number of applications of a similar
nature where the applicant
complies with time where he features or he
has featured. In the one case, he was two weeks late and this court
found against him.
The reason proferred is
not a good enough reason and once it is not a good enough reason, it
bags the question whether I even need
to consider the prospects of
success. There are so many decision of the Labour Appeal Court
that are relevant in this regard.
I want to cite one of
such, it is a decision in
Moale v Shai NO & Others
,
(2007) 28 ILJ 1028 (LAC), that is a decision by
the Judge President of this division. At paragraph 34
he has
this to say, “where in an application for condonation, the
delay is excessive and no explanation has been given for
that delay
or an explanation has been given but such explanation amounts to no
explanation at all, I do not think that it is necessary
to consider
the prospects of success”.
Indeed, this is one
situation when in the absence of a sufficient explanation being
tendered, it becomes really unnecessary to go
so far as looking at
the prospects of success.
In the present case, the
award was issued on 31 October 2005, the review was filed
on 20 February 2006, the
award would have reached the
applicant before the end of 2005 being mindful of the case number
that we have here and one looks
at the period of six weeks expiring
somewhere or elapsing on 9 December 2005 or soon thereafter
if one considers the
fact that perhaps the applicant received it a
little later than the date of issue. It has been conceded by
the parties and
in fact by the applicant that there is a period of
about 10 weeks during which the application is late. The reason
proferred
is indeed far from being good enough.
In that finding alone, I
am persuaded to dismiss the review application. I am mindful of
the fact that in the case that I
have referred to of the Labour
Appeal Court, the period, the longevity of the period there was
excessive. It is more than a year
in fact and the Judge President
weighed that period against the reasons that were proferred and then
made the finding that
I referred to.
In the present case, the
period of 10 weeks or a period thereabout cannot be regarded as
excessive but it is a period long enough
indeed to call for an
explanation. When I look at that period and look at the
explanation, the explanation is as good as
there been no explanation
at all. I am not talking of an explanation that is perhaps just
a weak or flimsy, this one is just
appalling, in fact any court that
would uphold this kind of an explanation, would be inviting the non
compliance of the rules of
this court and therefore creating a very
caotic situation.
In the event I am wrong
in that conclusion, I should go so far as looking at the prospects of
the success. The parties addressed
me, that it is, the chairperson of
the disciplinary hearing who said in her own words that had there
been mitigating factors submitted
before her, she in all
probabilities would have not dismissed Mr Ndlovu. The
commissioner looked at this evidence and
then found that, Mr Ndlovu
was not warned or appraised of the full consequences of failing to
advance mitigating circumstances
and as a result of that, he issued
the award in his favour.
Again,
when one looks at that and indeed Mr Luvuno has conceded that that
being the case, there are indeed no prospects of success.
When one
therefore looks at there being no prospects of success as conceded
against a weak reason given, it is clear in my mind
that indeed
condonation for the late filing of the review application is clearly
not justified. No good cause has been shown.
As a consequence I
am unable to grant this application.
The following order will
issue:
1.
Condonation for the late filing of the
review application is not granted;
2.
The review application is dismissed with
costs;
3.
The award in this matter is made an order
of court in terms of
Section 158(1)(c)
of the
Labour Relations Act.
______________
CELE
AJ
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