About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2008
>>
[2008] ZALCCT 4
|
|
Bezuidnhout v Commission For Conciliation, Mediation And Arbitration and Others (C746/06) [2008] ZALCCT 4 (24 January 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NUMBER: C 746/06
IN
THE MATTER BETWEEN:
CAROL
ANN BEZUIDENHOUT
APPLICANT
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
FIRST
RESPONDENT
THUTHUZELA
NDZOMBANE N.O
SECOND
RESPONDENT
CLUTTONS
SA (PTY) LTD
THIRD
RESPONDENT
JUDGMENT
MOLAHLEHI
J
INTRODUCTION
[1]
The Applicant seeks an order to review and
set aside the ruling issued by the Second Respondent (the
Commissioner) under
case number WE12001-06, dated 27
th
September 2006. In terms of the ruling the Second Respondent
ruled that the First Respondent did not have jurisdiction to
entertain the dispute of the Applicant.
FACTUAL
BACKGROUND
[2]
The Applicant who was employed by the Third
Respondent from 19
th
January 2005, as financial manager resigned on the 24 April 2005, and
thereafter lodged a constructive dismissal dispute with the
First
Respondent (CCMA).
[3]
The Applicant testified that during April
2006, the receptionist placed an order for ink cartridges with
Frost-Byte Computers. At
some point and on or about the same period
Josephine Books of Frost-Byte Computers called to confirm the order.
The Applicant advised
her to contact the receptionist who was
responsible for placing the order.
[4]
The owner of Frost-Byte Computers, Mr
Frost, thereafter contacted the Applicant and enquired about payment
of the order, which the
Third Respondent had placed with them. An
argument ensued between the Applicant and Mr. Frost as to whether the
terms of the payment
were based on a 30 (thirty) or 14 (fourteen)
day’s period. The Applicant then agreed to effect payment with
immediate effect
and also advised that the services of Frost-Byte
computers would no longer be used.
[5]
It would appear from the version of the
Applicant that later that day she was confronted by Mr. Smith who
accused her of exceeding
her authority, being dishonest, and of
having been involved in illegal behaviour. The Applicant testifies
that she was :
“
totally
dismayed and distraught over this irresponsible allegation. I could
no longer tolerate this abuse.
”
Because
of this confrontation the Applicant did not report for work the
following day and then submitted her resignation letter
on the 24
April 2006.
[6]
The Applicant referred the constructive
dismissal dispute to the CCMA on 23 August 2006. This referral was
late and accordingly
the Applicant had to apply for condonation.
[7]
The Third Respondent denied that the
Applicant was dismissed but that she resigned without notice after
she was notified of an investigation
concerning her misconduct
related to her unauthorized payment to a supplier who was her
boyfriend.
GROUNDS FOR REVIEW
[8]
The Applicant challenged the ruling on the
basis that the Commissioner committed a misconduct and gross
irregularity in that she
failed to assist her in the following
regard: (a) to apply for a postponement so that she could secure
legal representation, (b)
to the presenting and leading proper
evidence during the condonation application, (c) by failing to inform
her of the procedure
in presenting her case. The Applicant further
contended that the Commissioner failed to properly assess her
prospects of success.
Furthermore the Applicant contended that the
conclusion arrived at by the Commissioner in denying her condonation,
was unreasonable
to such a degree that it was indefensible on any
legitimate ground.
[9]
It is common cause that the Applicant was
79 (seventy-nine) days late in her referral of the dispute to the
CCMA. In her analysis
of the evidence, the Commissioner found that
the Applicant’s resignation was triggered by the investigation
that had been
instituted against her. Even though the explanation for
the lateness was accepted as reasonable, the Commissioner dismissed
the
Applicant’s application on the basis of absence of
prospects of success.
EVALUATION
FAILURE TO ASSIST IN
APPLYING FOR POSTPONEMENT
[10]
The case of the Applicant as set out in her
pleadings is that the Commissioner ought to have known from her
objection to legal representation
that she would have desired a
postponement and should therefore have assisted her in an application
for a postponement.
[11]
In support of her argument the Applicant
relied on the case of
Cher Technology
(Pty) Litto v Musi & Others
(2000)
7 BLLR 778
(LC), where the Court held that the Commissioners should
after introducing themselves at the beginning of the arbitration
proceedings
outline to the parties the process they would
follow in conducting the proceedings. They should also at that stage
ensure
that the parties are aware
inter
alia
of the format of the proceedings.
The Applicant also relied on the decision in the case of
East
Cape Agricultural Co-operative v Du Plessis and Others
(2000) 9 BLLR 1027(LC)
, where the Court held that where
Commissioners are dealing with laypersons they need to give
clear directions and assist
the parties.
[12]
In terms of section 138(1) of the LRA,
Commissioners have powers to conduct an arbitration hearing in a
manner they consider appropriate
in order to determine the dispute
fairly and quickly but must deal with the substantive merits of the
dispute with minimum legal
formalities.
[13]
It is indeed correct that Commissioners
should in arbitration proceedings assist lay-persons, particularly
where it is apparent
that they have difficulties in dealing with
issues related to procedural aspects of the proceedings. Where the
need to assist arises
the Commissioner should intervene in a manner
that such intervention does not amount to advancing the case of one
of the litigants.
The Commissioner should also not intervene in a
manner which may lead to a perception of bias on the part of the
other party or
parties. The nature and extent to which a Commissioner
may be required to assist will depend on the circumstances of each
case.
[14]
It is apparent that at the beginning of the
proceedings in the present case the Commissioner recognized and was
alive to the fact
that the Applicant was a lay-person who needed some
assistance. In this regard the record reveals the Commissioner having
stated
( at page 5 line 20 of the record) that:
“
I’m
just going to guide the applicant on the basis that she is, I suspect
that she is a layperson and she is not represented
and
then if you can just take our Application for Condonation and then we
look at the reasons for lateness, if you can dress me
on the reasons
for lateness.”
[15]
The perusal of the record of the
proceedings also reveals that the Commissioner conducted the
proceedings in a fair and transparent
manner. In my view the
Commissioner cannot be faulted for denying any of the parties the
opportunity to fairly present their respective
cases. The
Commissioner guided the Applicant through the proceedings on the
essential aspects of the condonation application. In
this regard the
record (at page 7 line 18) reveals the following off:
“
Ms
BEZUIDENHOUT: I therefore feel that
there can be no objection to the Condonation on this basis.
COMMISSIONER:
those are the reasons?
Ms
BEZUIDENHOUT: Those are the
reasons why I feel the Condonation must be, I must be entitled
to the
Condonation.
COMMISSIONER:
Okay and then if we look at the prospects of success?
Ms BEZUIDENHOUT: I do,
do hope to be successful, yes.
COMMISSIONER:
No, address me in terms of prospects of success. Can you look at the?
Ms BEZUIDENHOUT:
At my, my Application?
COMMISSIONER:
“Ja,” a thought should I take that this has been
submitted for the purposes of
Ms BEZUIDENHOUT:
I do feel that that it has been
COMMISSIONER:
There is nothing else that you are going to add in terms of
Ms BEZUIDENHOUT:
No, I’m not going to add
anything other than what is already on my
COMMISSIONER:
On your Affidavit?
Ms BEZUIDENHOUT:
Yes.
COMMISSIONER:
Okay, no problem and then your prejudice, say?
Ms BEZUIDENHOUT:
Correct, other than that,
there’s additional Affidavit to from Andrew
Smith, which also
supports the Condonation.”
The record later on (at
page 19 line 17) reveals:
“
Ms
BEZUIDENHOUT: I felt that I had just
put in very salient points and I didn’t go into as
much detail
and I’d like to make some more details.”
[16]
The above is illustrative of the extent to
which the Commissioner assisted and guided the Applicant in
presenting her case and more
importantly as concerning the
requirements for an application for condonation.
[17]
As concerning assistance for a
postponement, it has to be mentioned firstly that the Applicant never
applied for a postponement
in order to secure legal representation.
There is secondly no evidence that suggests that the situation was
such that it ought
to have been obvious to the Commissioner that the
Applicant was not coping and therefore there was a need to postpone
the case
in order to afford her the opportunity to secure legal
representation.
[18]
Whilst it is evidently clear that the
Applicant is a lay-person, the reading of the record projects her as
an educated person who
presented the papers and conducted her case
during the proceedings in an eloquent and clear manner. On a number
of occasions when
offered an opportunity to expatiate on the case,
she indicated that she was satisfied with what she had presented in
her papers.
For instance when asked by the Commissioner about the
degree of lateness she explain that it was because the parties
engaged in
some negotiations to try and settle the matter. She
went further to say:
“
All
my reasons for lateness, are actually supported by the three
Affidavits- myself, my own one, Mr. Stewart Maxwell’s and
also
Mr. Andrew Smith’s. I therefore fell that the degree of
lateness needs to be accepted by the CCMA and I want to specifically
point to Mr. Andrew Smith’s Affidavit. His paragraph 5.1.”
FAILURE TO ASSIST IN
LEADING EVIDENCE
[19]
Contrary to the answer which the Applicant
gave when the Commissioner enquired from her about prospects of
success and prejudice,
and what appears in her CCMA 7.11 form, the
Applicant states in her founding affidavit that she had no idea about
the concepts
of prospects of success and prejudice. It is evidently
clear from the reading of the record that this averment cannot be
sustained.
If indeed this was the case, why did the Applicant not
enquire from the Commissioner what the meaning and import of these
concepts
were?
[20]
The argument that the Applicant came to
know about to the requirements for the application for condonation is
also unsustainable
regard being had to the fact that there is no
evidence that the Applicant was assisted in filling in the CCMA 7.11
form. The assumption
is therefore that the Applicant filled in the
form on her own. There is nothing in the form that suggests that the
Applicant had
difficulties with the concepts. In this regard
the Applicant states in the form under the heading, “
Prospects
of Success”:
“
The
ex- employer constructively and summarily. At the beginning of 2006
Andrew Smith (hereinafter Smith), a director at the company,
made it
clear to me in unequivocal terms that he intended to "get rid of
me". Summarily dismissed me without disciplinary
procedure or
any attempt at seeking alternative course (sic) to action, by virtue
of the fact that they made the continuation of
my employment
intolerable, unilaterally changed working conditions and
authorities.”
[21]
In my view the above evidence does not
project the Applicant as a person who had no idea about the concepts,
but even if that was
the case she had all the opportunities to
inquire first from the CCMA before submitting the form and also at
the stage when she
submitted the form. She also had the
opportunity to inquire about the concepts during the hearing when the
Commissioner asked
her to address her (the Commissioner) about the
concepts.
THE LEGAL PRINCIPLES
APPLICABLE TO APPLICATION FOR CONDONATION
[22]
In terms of the principles governing the
granting or refusal of condonation a Court or a Commissioner has a
discretion which is
to be exercised judicially after taking into
account all the facts before him/her. The factors which the Court or
Commissioner
takes into consideration in assessing whether or not to
grant condonation are: (a) the degree of lateness or non compliance
with
the prescribed time frame, (b) the explanation for the lateness
(c) bona fide defence or prospects of success in the main case;
(d)
the importance of the case, (e) the respondent’s interest in
the finality of the case, (f) the convenience of the court;
prejudice
to the other party and (g) avoidance of unnecessary delay in the
administration of justice. See
Foster v
Stewart Scott Inc
(1997) 18 ILJ 367
(LAC).
[23]
The authorities are in agreement with the
principle which was enunciated in
Melane
v Santam Insurance Co Ltd
,
1962 (4) SA
531
(A) at 532C-F, that without a reasonable and acceptable
explanation for the delay, the prospects of success are immaterial,
and
without prospects of success, no matter how good the explanation
for the delay, an application for condonation should be refused.
In
this regard Myburg JP in the case of
NUM
V Council for Mineral Technology
(1999)
3 BLLR 209
(LAC) said:
“
A
slight delay and a good explanation may help to compensate for
prospects of success which are not strong. The importance of the
issue and strong prospects of success may tend to compensate for a
long delay. There is a further principle which is applied and
that is
that without a reasonable and acceptable explanation for the delay,
the prospects of success are immaterial, and without
prospects of
success, no matter how good the explanation for the delay, an
application for condonation should be refused (cf Chetty
v Law
Society, Transvaal 1985 (2) 756 (A) at 765A–C; National Union
of Mineworkers & others v Western Holdings Gold Mine
(1994) 15
ILJ 610 (LAC) at 613E).”
[24]
In
Queenstown
Fuel Distributors CC v Labuschadne NO &
(2000) 21 ILJ 166, Conradie JA said:
“
[24]
It follows, however, from what I have said above, that
condonation in the case of disputes over individual dismissals
will
not readily be granted. The excuse for non-compliance would have to
be compelling, the case for attacking a defect in the
proceedings
would have to be cogent and the defect would have to be of a kind
which would result in a miscarriage of justice if
it were allowed to
stand.
[25]
By adopting a policy of strict scrutiny of condonation application
in individual dismissal cases I think that the Labour Court
would
give effect to intention of the legislature to swiftly resolve
individual dismissal disputes by means of a restricted procedure,
and
to the desirable goal of making a successful contender, after the
lapse of six weeks, feel secure in his award.
[25]
I have earlier indicated that the
Commissioner accepted the explanation for the lateness but dismissed
the application because there
were no prospects of success.
[26]
The burden to prove the existence of the
prospects of success rests with the Applicant. The burden entails
having to show that the
Applicant stands a chance in discharging its
burden of proving that the resignation was as a result of the
employer having made
the working conditions unbearable. In the
present case, the Applicant has to prove that but for the intolerable
conditions created
by the employer she would have remained in her
employment and not resigned. An objective test is used to determine
the existence
of constructive dismissal. See
Smith
Kline Beecham (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration & others
(2000) 21 ILJ
988 (LC).
[27]
The Commissioner in concluding that there
was no prospects of success in the present case reasoned that the
fact that the Applicant
had worked after the resignation shows that
the situation was not intolerable. The Commissioner further found
that the resignation
was triggered by the investigation instituted
against the Applicant by the respondent. The circumstances that led
to the resignation
are set out in the founding affidavit of the
Applicant as follows:
“
11.
At the beginning of 2006 Andrew Smith (hereinafter Smith), a
director at the company, made it clear to me in unequivocal
terms
that he intended to "get rid of me".
12.
Shortly thereafter my problems with
Third Respondent began and entailed numerous variations of the
following:
12.1Smith
would request me to falsify figures, or would demand that I performed
acts which were illegal, unethical, and unprofessional
for someone in
my profession. For example adjusting financial figures and statements
to reflect what he desired.
12.2
Smith unilaterally changed my status by
removing my authority on larger financial payments.
12.3
Smith continuously failed to supply essential
information which I required to prepare and produce proper financial
reports, budgets,
and other documents and then accused me when they
were late.
12.4
Smith continually subjected me to undue and
uncorroborated criticism in a manner that was humiliating and
belittling. He would continually
undermine me which affected my
confidence.
12.5
Smith would overrule agreements made and
instructions given by the collective body of directors/partners
creating immense frustration
and confusion.
12.6
On more than one occasion Smith decided to make
sudden, last minute structural changes that made it extremely
difficult for me to
do my job properly as he took away key staff
members.
12.7
Smith continuously addressed me with an aggressive attitude and
intimidated me.”
[28]
The papers presented by the Applicant
before this Court do not take the case of the Applicant further than
those which were before
the Commissioner when the condonation was
considered at that stage. As stated earlier it is common cause that
the referral of the
dispute to the CCMA was 79 (seventy-nine) days
late. The explanation for this delay was in essence according to the
Applicant due
to the negotiations in which she attempted to resolve
the issue amicably with the respondent.
[29]
It is apparent that the negotiations
process, deadlocked on or about 3 May 2006, when the Applicant
indicated by e-mail that: “
by
17h00 on Wednesday, 3 May 2006 I shall proceed with the CCMA (sic)
claims and a criminal charge against you”.
The Applicant’s papers do not explain the delay after this
period. The supporting affidavit of Mr. Maxwell which was attached
to
the Applicant’s application at the CCMA suggests that the
negotiations failed on the 28 July 2006. However the Applicant
does
not explain why the referral was only filed more than 20 (twenty)
days thereafter. In the heads of argument the Applicant
argues that
the negotiations fell through on the 12
th
August 2006. No explanation however is proffered as to what happened
for 10 (ten) days thereafter. In my view in these circumstances
the
delay in referring the dispute was excessive.
[30]
In my view the Commissioner cannot be
faulted in so far as the manner in which he conducted the hearing and
treated both parties
in particular with regard to the issues relating
to assistance to the Applicant.
[31]
In so far as the Applicant challenges the
condonation ruling of the Commissioner, the test to be applied is
whether the decision
reached by the Commissioner is a decision that a
reasonable decision–maker could reach. See in this regard the
decision of
the Constitutional Court in
Sidumo
v Rustenburg Platinum Mines Limited
(2007) 28 ILJ 2406 (CC),
Fidelity Cash
Management Services v Commission for Conciliation, Mediation and
Arbitration
(Unreported case No:
DA10/05) and
Phalaborwa Mining Limited v
Reuben Hlokwe & Others
(Unreported
Case No: JA 07/2006).
[32]
In the light of the above considerations I
am unable to fault the decision of the Commissioner. Regard being had
to the evidence
and the circumstances of the case the decision of the
Commissioner was reasonable. I also find that both on the papers
which were
before the Commissioner and those before this Court, the
Applicant has not been able to show the existence of a chance of
proving
constructive dismissal if the main case was to be heard.
[33]
Accordingly, the Applicant’s
application stands to be dismissed.
[34]
I see no reason why in fairness to the
Third Respondent, the costs should not follow the result.
[35]
In the premises the application is
dismissed with cost.
____________
MOLAHLEHI
J
Date
of Hearing : 26 September 2007
Date
of the Order : 11 January 2008
Date
of the Judgment: 24 January 2008
APPEARANCES
For
the Applicant : B Guy of Guy & Associates
For
the Respondent: R Lagardien of Smith Tabata Buchanan Boyes Inc.