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[2008] ZALCJHB 21
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Communication Workers Union and Others v Commission for Conciliation, Mediation and Arbitration and Others (JR1354/03) [2008] ZALCJHB 21 (18 April 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
IN JOHANNESBURG)
CASE
NUMBER: JR1354-03
In
the matter between:
COMMUNICATION
WORKERS
UNION APPLICANT
MK CHABANGU & 4
OTHERS 2
ND
TO 6
TH
APPLICANTS
and
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND
ARBITRATION FIRST
RESPONDENT
ERIC
LOUW SECOND
RESPONDENT
SA
POST OFFICE
LIMITED THIRD
RESPONDENT
JUDGEMENT
AC BASSON, J
[1] The Applicants in
this matter seek to review and set aside a ruling made by the Second
Respondent dated 18 December 2002, in
which the Second Respondent
(hereinafter referred to as “the Commissioner”) ruled
that the First Respondent (hereinafter
referred to as “the
CCMA”) lacked jurisdiction to arbitrate the unfair dismissal
dispute between the individual Applicants
because, in his view, the
individual Applicants were, to “a large extent”,
dismissed for participation in an unprotected
strike rather than for
ordinary misconduct. The Commissioner concluded that the matter
should therefore be referred to the Labour
Court for adjudication.
CONDONATION FOR THE
LATE FILING OF THE REVIEW APPLICATION
[2] The application to
review was brought in terms of section 158 of the Labour Relations
Act 66 of 1995 (“the LRA”).
Although the LRA does not
prescribe any time period within to launch review applications in
terms of this section, the Labour Court
has accepted that review
proceedings brought in terms of section 158 must be launched within a
reasonable time. The Labour Court
has held in numerous decisions that
a period of six weeks from the date of the decision or conduct sought
to be reviewed, is a
reasonable period within which the launch a
review application.
[3] The Applicant brought
a condonation application which was unopposed. The following appears
from the founding affidavit: The
arbitration ruling was faxed to the
union’s offices on 6 January 2003. The review application was
only filed on 11 August
2003. According to the founding affidavit
filed in support of the condonation application, a letter was sent to
the union’s
head office in terms of which head office was
requested to seek a legal opinion on the prospects of successfully
reviewing the
ruling. The individual Applicants had informed a
certain Jeffery Fundama (who was the union official responsible for
the matter)
that they had approached the Legal Aid Board regarding
this matter and that the Legal Aid Board had agreed to take this
matter
on review on their behalf. The individual Applicants therefore
terminated the mandate of the union to proceed with the matter. The
individual Applicants believed that the Legal Aid board would launch
the review application within the required period. In April
2003 the
Legal Aid Board advised the individual Applicants that it was no
longer prepared to launch the review application on their
behalf and
the union was again approached. The union representing the individual
Applicants then instructed the present attorney.
Although the
attorneys were seized with the matter since May 2003, the papers were
only filed on 11 August 2003.
[4] On behalf of the
Applicants it was argued that the individual Applicants have taken
all the steps that they had believed were
necessary to ensure that
the review application was launched within a reasonable time and that
condonation should therefore be
granted.
[5]
Although
the delay in bringing this application to review is lengthy and the
explanation for the delay not entirely satisfactory,
it is
nonetheless acceptable when regard is had to all the relevant
factors. In
Melane
v Santam Insurance Co Ltd
1962
(4) SA 531 (AD)
[1]
the Court sets out at page 532B–E the factors that must be
taken into account when considering a condonation application:
The
court will take into account the degree of lateness; the explanation
therefore; the prospects of success on the merits; the
importance of
the case; and other considerations. These factors are interrelated
and should not be considered separately. The approach
in the
Melane
's
case has been followed with approval in various decisions of this
Court and the Labour Appeal Court. In
NUM
v Council for Mineral Technology
[1999]
3 BLLR 209
(LAC) at paragraph [10] the Labour Appeal Court held that
the absence of a reasonable and acceptable explanation for the delay
was pertinent to the enquiry into whether or not condonation should
be granted. Where no such an explanation is forthcoming, no
examination of the prospects of success needs to be undertaken (see
also
NUM
and others v Western Holdings Gold Mine
(1994)
15
ILJ
610
(LAC) at 613E and
Waverley
Blankets Limited v Sithukuza and Others
(1999)
20
ILJ
2564
(LAC) paragraph [11]). If an applicant for condonation does not
explain the default or tender an unsatisfactorily explanation,
condonation will not be granted (see
Ferreira
v Ntshingila
1990
(4) SA 271
(A)). The mere fact that a party has decidedly
strong prospects of success is not in itself sufficient cause to
grant condonation.
(See
Torwood
Properties (Pty) Ltd v SA Reserve Bank
1996
(1) SA 215
(W) at 230H and
Chemical
Energy Paper Printing Wood & Allied Workers Union & Others v
Metal Box t/a MB Glass
(2005) 26 ILJ 92 (LC).)
[6]
It is clear
from the aforegoing that this Court endorses the approach that
condonation for non-compliance with time limits should
not be granted
lightly. Where the blame may be attributed to the negligence of an
attorney or representative, the Courts will equally
be reluctant to
grant condonation except in exceptional circumstances. Factors that
will be taken into account is the fact that
an applicant is a layman
from a rural environment; the fact that an applicant was misled by
his or her representative; the fact
that the applicant had taken
reasonable steps to ensure that his or her matter is being pursued;
or where the refusal of condonation
will result in the failure of
justice.
[2]
I have
considered all of these factors and despite the fact that the
explanation is not entirely satisfactory it is nonetheless
reasonable
and acceptable. If regard is had to the prospects of success
and the potential prejudice and injustice which the
individual
Applicants will suffer if condonation is not granted, I am satisfied
that condonation for the late filing of the review
application should
be granted.
LATE FILING OF THE
ANSWERING AFFIDAVIT
[7] The application for
review was unopposed when it was first to be considered by this
Court: Despite the fact that the Respondents
were notified in terms
of the Rules of this Court of the date of set-down, the Third
Respondent did not file any opposing papers.
The Third Respondent
appeared in Court on the day of the hearing and opposed the
application resulting in the postponement of the
hearing. The Third
Respondent has since filed its answering affidavit. The Third
Respondent has, however, not filed an application
for condonation for
the late filing of its answering papers.
[8] It appears from the
papers that the Applicant has filed its notice in terms of Rule 7A(8)
of the Rules as far back as 22 April
2004. The Third Respondent’s
affidavit was filed on 11 April 2006. The Third Respondent therefore
filed its answering affidavit
approximately two years late. In the
absence of a condonation application, the answering affidavit is
therefore not properly before
this Court and I have therefore
proceeded to consider the matter without any regard to the Third
Respondent’s papers.
THE RULING
[9] The individual
Applicants were employed as mail handlers by the Third Respondent
(hereinafter referred to as “the Post
Office”) until
their dismissal on 23 April 2002. On 12 April 2002 the individual
applicants were given charge sheets and
called upon to attend a
collective disciplinary hearing. The Applicants were collectively
charged with poor time keeping; delaying
of mail; violence and
refusing to carry out an instruction. They were dismissed following a
disciplinary hearing.
[10] The individual
Applicants referred a dispute about their unfair dismissal to the
CCMA. In the referral the reason for the dismissal
is indicated as
“misconduct”. The matter could not be resolved and
was referred to arbitration. At the commencement
of the arbitration,
the Commissioner intimated of his own accord that he was of the view
that the CCMA did not have jurisdiction
on the grounds that the
individual Applicants’ were dismissed for participation in a
“
wildcat strike
”. No evidence was led in this
regard.
[11] The Commissioner
thereafter issued a ruling in terms of which he ruled that the CCMA
did not have jurisdiction and that the
matter should be referred to
the Labour Court. In the Ruling the Commissioner points out that
there were “
indications
” that the dismissal was
for a “
wildcat strike”
rather than dismissal for
misconduct and that both parties had agreed that such indications
existed and that the matter should
be referred to the Labour Court.
The Commissioner concluded as follows:
“
Prior to the
start of the arbitration proceedings the parties submitted various
documents which they intended using in support of
their respective
cases. A reading of those documents clearly indicated that there were
various indications that the members of
the applicant were perhaps
and to a large extent dismissed for participating in unprotected
industrial action which, at some
stage at least, occurred in
the form of a so-called wildcat strike rather than mere misconduct in
the strict sense of the word.
Both parties agreed that such
indications exist and that the matter should be referred to the
labour court for adjudication.”
[12] The deponent to the
founding affidavit, a one Mr. Fundama, who is the full time
shopsteward of the Communication Workers’
Union (hereinafter
referred to as “the CWU”) at the SA Post Office, states
that he was present at the arbitration hearing
and that no agreement
was reached between the parties to the effect that there were
“
indications
” that the individual Applicants were
dismissed for participation in an unprotected strike and that the
mater should be referred
to the Labour Court.
[13] It was therefore
submitted on behalf of the Applicants that the Ruling should be
reviewed,
inter alia
, on the basis that the Commissioner had
failed to apply his mind properly to the issues before the
arbitration and had taken into
account an alleged agreement that had
not been reached.
[14] This review hinges
on two points. Firstly, the question whether or not an
agreement was reached in terms of which it
was agreed between the
parties that the dispute related to a dismissal on the basis of
misconduct or whether or not the issue to
be determined was in
respect of an unprotected strike action. Secondly, whether
there were “
indications
” that the dismissal was
for unprotected industrial action as opposed to misconduct. The
Applicants allege that the Commissioner
had misdirected himself in
describing the referral as one pertaining to “
an
unprotected industrial action”
instead of one dealing
with “
misconduct
” and that it is clear from the
papers that the individual Applicants were never charged with
participation in an unprotected
industrial action. Furthermore,
no evidence was led during the disciplinary hearing that they were
engaged in unprotected
strike action. It was also submitted that the
dispute that was referred to the CCMA was on the ground that the
reason for the dismissal
was “
misconduct”
.
REVIEW
[15]
A
Commissioner is enjoined to determine the “
real
”
or “
true
”
nature of the dispute that was referred to the CCMA. See in this
regard
Wardlaw
v Supreme Mouldings (Pty) Ltd
(2007) 28 ILJ 1042 (LAC) where the Labour Appeal Court pointed out
that, although the “
formalistic
school”
of thought - which holds that the jurisdiction of a forum is
determined by the reason for the dismissal as alleged by the
employee,
has merits, the substantive school of thought which holds
that the Labour Court has jurisdiction only provisionally until it
has
made a finding as to what the true reason for the dismissal is -
is the correct approach.
[3]
Up
until this decision, the Labour Court was divided on the issue
whether it is the employee who designates the nature of the dispute
or whether it is the actual forum that should determine the nature of
the dispute. This controversy has now been clarified.
The
Labour Court (and by implication the CCMA Commissioner) must
determine the true nature of the dispute irrespective of the
characterization of the dispute in the referral form. See also
Future
Mind (Pty) Ltd v CCMA & Others
[1998] 11 BLLR 1127
(LC) where the Court pointed out that arbitrators
are obliged to determine the real issue in dispute when considering
jurisdiction.
Where there is uncertainty as to whether the CCMA (or
the Labour Court) has jurisdiction to hear a matter, the CCMA must
determine
the issue and in doing so may well have to hear sufficient
evidence in order to identify the true reason for the dismissal if it
is not possible to determine this question in light of, for example,
documentation or even the opening statements of the respective
parties. If it then appears that the dispute was erroneously referred
to the CCMA, then only may the arbitrator with the consent
of the
parties proceed with the matter. If such consent cannot be obtained,
then the matter should be referred to the Labour Court.
[16] In respect of the
present (jurisdictional) ruling two points should be made: Firstly,
it appears from the award that the Commissioner
was of the view that,
where parties agree that a dispute should be referred to the Labour
Court because there are such “
indications
”, then
the matter should be referred to the Labour Court. This is clearly a
misconception of his duties as an arbitrator.
It is the duty of the
Commissioner to determine the true nature of the dispute not the
parties. At best the parties can consent
to the jurisdiction of the
CCMA where it appears that because of the nature of the dispute the
CCMA does not have jurisdiction.
The referral form and the
characterization of the dispute therein will likewise not be
conclusive in determining the true nature
of the dispute. Where doubt
exists, the Commissioner must, if necessary, hear evidence before a
proper determination of the true
nature of the dispute is made. In so
far as the Commissioner had relied on an agreement (the existence of
which the Applicant disputes),
the Commissioner’s award should
be reviewed and set aside. Secondly, in so far as there are “
various
indications that the members of the applicant were perhaps and to a
large extent
” dismissed for participation in unprotected
strike action, I am also of the view that the award should be
reviewed and set
aside. A perusal of the charge sheet reveals that
the employees were charged with: (i) poor time keeping; (iii)
delaying of mail;
(iii) violence; and (iv) refusal to carry out an
instruction. These charges, on the face of it, point to “
misconduct
”.
In so far as the Commissioner was of the view that there were
indications that the applicants were dismissed for participation
in a
strike, he certainly could not have made such a deduction purely with
reference to the charge sheet or to the minutes of the
disciplinary
hearing. A perusal of the Chairperson’s guilty finding also
does not support a conclusion that the individual
Applicants were
dismissed for participation in unprotected strike action. In fact, it
appears that the Chairperson was of the view
that the individual
Applicants were guilty because they had refused to take instructions
which conclusion, on the face of it, appears
to be a guilty finding
on a charge of misconduct: “
According to the leading
evidence(sic), after listening carefully I find them guilty and (sic)
the two charges, as they decided
not to do the walks, it was clear
that they refused to take instructions.
” In light of
the documents that were placed before the Commissioner, the
Commissioner’s conclusion in respect
of the true nature of the
dispute is clearly not rational and therefore falls to be reviewed
and set aside.
[17] The matter is
accordingly referred back to the CCMA to be enrolled for arbitration.
Should the evidence later reveal that the
true nature of the dispute
is one that falls within the jurisdiction of the Labour Court then so
be it. If that happens,
the Commissioner will then either have
to suspend the proceedings and refer the matter to the Labour Court
or seek the consent
of the parties to continue adjudicating the
dispute that falls within the jurisdiction of the Labour Court.
In respect of
costs I make no order.
[18] In the event, the
following order is made:
1. The
application for the late filing of the review application is granted.
2. The
Ruling made by the Second Respondent sitting as a Commissioner of the
First Respondent, dated 18 December
2002, is reviewed and set aside.
3. The
matter is referred back to the First Respondent for arbitration
before a different Commissioner.
4.
There is no order as to costs.
______________________
AC
Basson, J
Date
of Hearing: 13 June 2007
Date
of Judgement: 18 April 2008
For
the Applicant: O Mooki
For
the Respondent: R Phungo Inc
[1]
"
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 is the degree of lateness, the explanation therefore, the
prospects of success and the importance of the case. Ordinarily
these facts are interrelated, they are not individually decisive,
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 prospects 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 interests in finality must not be
overlooked."
[2]
See in general:
Swanepoel
v Albertyn
(2000) 21 ILJ 2701 (LC);
NEHAWU
obo Mofokeng & Others v Charlotte Theron Children’s Home
[2004] 10 BLLR 979 (LAC)
[3]
“
[21]
In the light of all of the above the conclusion is inescapable that
the formalistic school of thought is not
one that enjoys the
recognition of the Act. The substantive school of thought is the one
that is very close to the school of
thought that enjoys that
recognition. We say this because s 157(5), read with s 158(2),
clearly envisages a situation where the
Labour Court initially takes
as correct the employee's allegation of what the reason for
dismissal is and proceeds with the process
of hearing the matter
until it is 'apparent' to it that the reason for dismissal is a
different one and it is one falling under
s 191(5)(a) . In such a
case s 158(2) is triggered. Once it is apparent to the court
that the dispute is one that ought
to have been referred to
arbitration, the court deals with the matter in terms of either s
158(2)(a) or (b) . It cannot deal
with it outside the ambit of those
provisions. Accordingly, it has no power to proceed to adjudicate
the dispute on the merits
simply because it is already seised with
the matter. To do so would be in conflict with the provisions of s
157(5) and 158(2)
of the Act.
[22]
A question that arises from s 158(2) is: when does it become
apparent to the Labour Court
that a dispute is one that ought to
have been referred to arbitration? To answer this question within
the context of a
dismissal dispute, it is necessary to bear in
mind the provisions of s 191(5)(a) and (b) . In terms of those
provisions the employee's
allegation of what the reason for
dismissal is provisionally channels the dispute to either
arbitration or adjudication after
conciliation has failed. Where the
employee alleges that he does not know the reason for the dismissal,
the dispute is channeled
to arbitration. An unfair labour practice
dispute is also required to be referred to arbitration.
[23]
The significance of s 191(5)(a) and (b) seems to be this. What is
contemplated by the
scheme of the Act is that, if the employee has
alleged a certain reason as the reason for dismissal and that reason
is one that
falls within s 191(5)(b) and the court does not at any
stage think that that reason is not the reason for dismissal, the
court
proceeds to adjudicate the dispute and delivers a judgment.
Where as a reason for dismissal the employee has alleged a reason
that falls within s 191(5)(b), the court provisionally assumes
jurisdiction but, if the court later takes the view or it
later becomes 'apparent' to the court that the reason for dismissal
is one that falls under s 191(5)(a), it then declines jurisdiction
and follows the s 158(2)(a) or (b) route.
[24]
In the light of the above it seems to us that the employee's
allegation of the reason
for dismissal as contemplated in s 191(5)
is only important for the purpose of determining where the dispute
should be referred
after conciliation but the forum to which it is
referred at that stage is not necessarily the forum that has
jurisdiction to
resolve the dispute on the merits finally. That may
depend on whether it does not later appear that the reason for
dismissal
is another one other than the one alleged by the employee
and is one that dictates that another forum has jurisdiction to
resolve
the dispute on the merits. Once a dispute has been referred
to, for example, the Labour Court, the Labour Court provisionally
assumes jurisdiction. That assumption of jurisdiction is
conditional upon its not later becoming 'apparent' to the court
within the contemplation of s 158(2) of the Act that the reason for
the employee's dismissal is one that falls within s 191(5)(a)
of the
Act. We say it is provisional or conditional because if it later
becomes 'apparent' that the dispute is one that ought
to have been
referred to arbitration, the court will decline jurisdiction and
have the dispute referred to arbitration.”