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[2008] ZALCD 4
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Hlatshwayo v Commission for Conciliation Mediation And Arbitration and Others (D184/04) [2008] ZALCD 4 (9 May 2008)
IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN DURBAN
CASE
NO:
D184/04
DATE:
0
9.05.2008
M
HLATSHWAYO
APPLICANT
And
THE COMMISSION FOR CONCILIATION,
MEDIATION
&
ARBITRATION FIRST
RESPONDENT
BESS
PILLEMER
N.O SECOND
RESPONDENT
SARA
LEE
HOUSEHOLD THIRD
RESPONDENT
JUDGMENT
AC BASSON, J
Herewith
brief
ex tempore
reasons for my order.
[1]
This was an application to review and set
aside the arbitration award under Case No KN7009/03. The award
was rendered by the
second respondent under the auspices of the first
respondent, the CCMA. I will refer to the second respondent as
“the
Commissioner” and the first respondent as “the
CCMA” and throughout this judgment I will also refer to the
third
respondent merely as “the respondent”.
Brief summary
of the evidence
[2]
The applicant was dismissed following an
e-mail that he sent to his manager, a certain Miss. Moodley
(hereinafter referred to as
“Moodley”) in which he
inter
alia
said:
“
I Hate
your attitude as a manager.”
The ‘
Hate’
part of the e-mail is in caps. He also stated that:
“
I am
watching your step as you are watching me.”
[3]
Although I agree with the applicant that
the e-mail as a whole should be read into context, these words
appears to be the crux of
the issue in this particular case. I will
return to the merits of the review hereinbelow.
Application
for condonation for the delay in filing of the record
[4]
Before turning to the merits of the review
application, it is necessary to firstly deal with the applicant’s
application for
condonation for the delay in filing of the record
which period is in excess of two years and four months.
[5]
The Applicant filed an application for
condonation insofar as it was necessary to do so. Although the rules
do not provide for a
specific time period within which a record must
be filed, as was correctly pointed out by the Respondent, this Court
nonetheless
has a discretion to consider whether or not the delay was
reasonable.
[6]
It is trite that the
Labour Relations Act, 66 of 1995 (“the LRA”) is
premised on the principle that disputes should
be resolved
expeditiously and that a litigant, especially an applicant, should
ensure that he or she does not undermine the expeditious
resolution
of disputes by unduly delaying the prosecution of a matter.
Although the respondent also has a duty to ensure
that an applicant
who unduly drags his or her feet should move forward and should even
approach this Court for an appropriate order,
essentially it is the
applicant that is
dominus
litus
and it is for
the applicant to ensure the expeditious resolution of a dispute.
It is trite that inordinate delays in prosecuting
a review to
finality protract disputes and that it is not in the interest of
justice to delay bringing disputes to a finality especially
in the
employment context. Depending on the circumstances of a case, this
Court may, should it be of the view that it is in the
interest of
justice, dismiss a review where the applicant delays prosecuting its
claim and fails to provide an acceptable explanation
for the delay.
See
National Union
of Metal Workers of South Africa obo Nkuna Others v Wilson Drills-N
Bore (PTY) LTD t/a A & General Electrical
-
(2007) 28
ILJ
2030 (LC) and
Numsa
and Others v AS Transmission and Sterling (Pty) Ltd
(1999) 12
BLLR
1237 (1) SA 673.
See also
Bezuidenhout
v Johnston No & Others
(2006) 27
ILJ
2337 (LC). In the latter case reference is made to Stratford AJA in
Pathescope Union of
SA Ltd v Mallinicks
1927 AD 292
where the Court held as follows:
“
That
a plaintiff may, in certain circumstances, be debarred from obtaining
relief to which he would ordinarily be entitled because
of
unjustified delay in seeking it is a doctrine well recognised in
English law and adopted in our own courts. It is an application
of the maxim vigilantibus non dormientibus lex subveniunt…”
The
court went further to say:
“
Where
there has been undue delay in seeking relief, the court will not
grant it when it its opinion it would be inequitable to do
so after
the lapse of time constituting the delay. And in forming an
opinion as to the justice of granting the relief in
face of the
delay, the court can rest its refusal upon potential prejudiced, and
that prejudice need not be to the defendant in
the action but to
third parties”.
[7]
I also find the following comments made in
the
Bezuidenhout
-case
of particular relevance to the present case:
“
[30]
If any party delays the process, I believe it is in the first
instance incumbent on the applicant party (who
is dominus litus) to
take timeous steps to compel compliance with the LRA and/or the rules
of this court. I believe the applicant
bears the primary
responsibility of ensuring that the functionaries comply with their
responsibility to despatch the record of
proceedings within ten days
of receipt of the notice of motion. The applicant party needs to take
early and effective steps to
compel the functionaries to comply with
their obligations if they fail to do so.”
…
..
“
[33]
In short first and foremost the applicant in any matter must
diligently pursue that matter and take every reasonable step to
ensure that all necessary steps are taken within the prescribed
periods therefore. Where other parties such as the
functionaries
involved are also required to take steps within
prescribed periods, early action must be taken again primarily by the
applicant
party to compel compliance with these functionaries.
Respondent parties have a secondary but equally important
responsibility
to take such steps as are available to them to ensure
compliance by the other parties with time periods and directives.”
See
also
Mohlomi v
Minister of Defense
1997 (1) SA (CC) at 129H-130A, wherein Didcott J said:
“
Nor
in the end is it always possible to adjudicate satisfactorily on
cases that have gone stale. By then witnesses may no
longer be
available to testify. The memories of ones whose testimony can still
be obtained may have faded and become unreliable.
Documentary
evidence may have disappeared”.
See
also
National
Savings Investments (SA) (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration & Others
(unreported case number JR171/02) where this Court held that:
“
[13]
The first question to be considered in exercising the discretion is
whether there has been undue or unreasonable delay and
secondly
whether the delay should be condoned. Whether any steps were
taken during the interval, will also be an important
factor as that
may indicate the seriousness or commitment of a litigant in bringing
his or her claim to finality”
.
………
:
“
In
respect of the question of whether or not the delay was reasonable or
unreasonable, the Court will have to make a value judgement
in the
light of all the circumstances. Once it has been fond that the
delay was unreasonable, the Court will then have to
exercise a
discretion which must be exercised judicially as to whether or not
the unreasonable delay should be condoned”.
[8]
I am of the view that the delay in the
present matter is unreasonable. A delay of two years and four months
is an exceedingly long
time period and requires that a good
explanation be tendered for this delay. I can also not disregard the
fact that the delay has
caused the Respondent to inform its overseas
partners that the matter had died a natural death. It is common
cause that the
respondent did not bring an application to dismiss nor
is there such an application before this Court at present.
However,
I am of the view that this Court may
mero
motu
raise this issue and consider
whether or not the applicant’s dilatory conduct in pursuing a
matter should bar him from obtaining
the relief sought (see the
quotation from the decision in
Pathescope
Union
(
supra)
.
[9]
I have considered the explanation tendered
against these principles. The delay is excessive. It took the
applicant two and
a half years to file the record. I also find the
explanation for the delay wanting. Blame is put on the Mr Mafu
of the union,
who merely attributes the delay to his ill health.
Although an affidavit deposed to by Mafu is attached to the papers,
the
explanation tendered does not explain the extensive delay.
Although Mafu’s ill-health may tender an explanation for
part
of the delay, it simply does not explain or adequately explain a
delay of more than two years. Mafu also does not confirm
in his
affidavit whether he was indeed paid R10 000,00 for his
services, as alleged by the applicant, and that the money is
now
unaccounted for. The explanation for the extreme delay is therefore
in my view simply not reasonable and I am therefore of
the view that
the review should be dismissed on this basis alone.
Merits of the
review
[10]
Insofar as I may be wrong in dismissing the
application on this basis alone, I will now proceed to evaluate the
merits of the review
application. I have read the papers in
light of the heads of argument filed on behalf of the respective
parties and will
now proceed to briefly summarise some of the issues
that I have taken into account in coming to a conclusion.
[11]
At the outset I should point out that I am
in agreement with the Respondent’s submission that no coherent
allegations are
made in the founding affidavit that support this
application for review. The founding affidavit simply does not
contain the allegations
that comply with the requirements of section
145 of the LRA read with the case law that has defined the test for
reviews. In terms
of Rule 7A(1)(c) of the Rules, an applicant’s
founding affidavit should set out the factual and legal grounds upon
which
the decision of the CCMA arbitrator is to be reviewed and set
aside. Rule 7A(8) of the Rules only permits the applicant’s
founding affidavit to be supplemented. A supplementary affidavit
cannot cure the defects contained in a founding affidavit. On
this
ground alone I am also of the view that the application for review
falls to be dismissed.
[12]
More in particular in respect of the
procedural fairness of the dismissal, the applicant makes a vague
attempt on the Commissioner’s
finding that the dismissal was
procedurally fair. No proper ground for review is raised in respect
of the procedural fairness of
the dismissal.
Merits of the
review
[13]
Although not necessary in light of the
aforegoing to consider the merits of the review, I will nonetheless
do so in order to bring
finality to this dispute.
[14]
The Commissioner, in a fairly well reasoned
judgment, gives a detailed and, in my view, a largely accurate
summary of the evidence.
I will not for purposes of this brief
judgement repeat the evidence but will suffice with a brief
exposition of the most important
facts as they have emerged from the
evidence.
[15]
Moodley, the Applicant’s manager,
received an e mail from the Applicant (see also paragraph [2]
supra
).
She testified that she had been working with the applicant for more
than two years. On 20 February 2003 Moodley reprimanded
the
applicant when she found him with another employee in his office.
She told the other employee to leave as he was disturbing
the
applicant who had work to do. Not very long after this incident
Moodley then received the said e-mail from the applicant.
Moodly
testified that she was shocked, disturbed and that she felt
intimidated by the contents of the e-mail, particularly because
the
applicant who sent her the e-mail used words such as “
I
Hate your attitude
” and “
I
am watching your step as you [sic] watching me!
”.
Moodley immediately reported the incident to her manager and she also
asked her husband to come and fetch her as she felt
intimidated.
It was briefly also her evidence that the relationship between her
and the Applicant, who was her subordinate,
was destroyed as a result
of this incident.
[16]
Mr. Msomi (hereinafter referred to as
“Msomi”), the HR director, also confirmed that he was
informed by Moodley of the
incident and that he had arranged for
extra security for her as well as for other female employees.
He also confirmed that
he was shocked at the inappropriate and
disrespectful language used in the e-mail. It was also his
evidence that Moodley
was a kind person and that she had treated the
other employees positively. Msomi testified that he and Mr. Douglas
Kilburn had
met with the Applicant about the e-mail in an effort to
try and resolve the issue. During that meeting the applicant
confirmed
that he was the author of the e-mail. Msomi then
asked the applicant to retract the words used in the e mail.
Msomi
confirmed that the Applicant had refused and that he told the
meeting that it was his constitutional right to use the words.
[17]
After Kilburn had left the meeting, another
employee - the human resources manager Mr. Goodwill Ngcobo - joined
the meeting. In
Ngcobo’s presence the Applicant was again
requested to retract the e-mail. Again the Applicant refused. Msomi
testified that
he was of the view that the Applicant was given an
opportunity to retract the e-mail and because he refused to do so it
was decided
to charge the applicant.
[18]
I will not refer to the procedural fairness
in light of the fact that the Applicant has abandoned the attack on
the procedural fairness
of the dismissal. Suffice to point out that
an external chairperson was appointed and it was also
inter
alia
his evidence that he also spoke to
the Applicant and also gave him an opportunity to retract the words
or the e-mail but that the
Applicant had refused to do so.
[19]
In essence it was the Applicant’s
evidence that he was not generally disrespectful towards Moodley. It
was his evidence that
Moodley had shouted at him when she asked the
other employee to leave his office. It was further his evidence that
it was not his
intention to convey an attitude that he hated Moodley
or that he had tried to intimidate her.
[20]
The Commissioner concluded that the
dismissal was substantively and procedurally fair. I have
perused the transcript of the
hearing as well as the pleadings and I
am of the view that the Commissioner’s conclusions in this
regard are reasonable.
In coming to this conclusion I had
regard to the decision in
Sidumo &
Another v Rustenburg Platinum Mines Ltd & Others
(2007) 28 ILJ 2405 (CC) and particularly paragraph
[107] of the judgment where the Constitutional Court said:
“
[107]
The reasonableness standard was dealt with in Bato Star. In the
context of s 6(2)(h) of
PAJA, O'Regan J said the following: '[A]n
administrative decision will be reviewable if, in Lord Cooke's words,
it is one that
a reasonable decision-maker could not reach.'”
[21]
The question is thus not whether or not the
conclusion reached by the Commissioner is one which this Court would
have reached. In
essence the question is whether or not the
conclusion reached by the Commissioner is one that a reasonable
decision-maker could
not reach. In
Edcon
Limited v Pillemer NO & Others
(DA4/06) the Labour Appeal Court held that this –
“
boils
down to saying the decisions of the commissioner are to be reasonable
…. Meaningful strides are taken to refocus attention
on the
supposed impartiality of the commissioner as a decision-maker at the
arbitration whose functions is it to weight all the
relevant factors
and circumstances of each case in order to come up with a reasonable
decision. It is in fact the relevant factors
and the circumstances of
each case, objectively viewed, that should inform the element of
reasonableness or lack thereof
.”
(at paragraph [21] of the judgment).
[22]
In considering this test, the Court should
always bear in mind the distinction between a review and an appeal.
It is not the
function of this Court to consider whether or not the
decision by the Commissioner is correct. The function of the court on
review
is merely to consider whether or not the Commissioner’s
decision falls within the boundaries of reasonableness. In this
regard the following comments by Ngcobo, J is particularly
instructive:
“
[245]
With this in mind, the drafters appear to have opted for the
narrowest species of review.
By adopting 'a simple, quick, cheap and
non-legalistic' approach to the adjudication of unfair dismissals,
the drafters of the
LRA intended that, as far as is possible
arbitration awards would be final and would only be interfered with
in very limited circumstances.
In order to give effect to this, they
deliberately chose the narrow grounds of review similar to those
contained in s 33(1) of
the Arbitration Act and reproduced them in
identical terms. They did this well aware of the jurisprudence under
s 33(1) of the
Arbitration Act. And they were aware of the
well-established rule of statutory construction that when the
legislature deliberately
includes language in a statute which in the
same or similar context has been subject to judicial interpretation,
it intends the
provision to bear the same meaning already given by
the courts.”
[23]
I am of the view that the Commissioner’s
reasoning in coming to her decision is sound. Her conclusion
that the e-mail
was not sent to initiate the respondent’s
grievance procedure is sound. The Applicant had been an
employee for a long
time period, more than nine years, and he should
have known also that the contents such an e-mail is unacceptable. The
Commissioner
further found that the words that was used by the
Applicant, namely that he hates Moodley or to be more correct to say
that he
hated her attitude as a manager and that he was watching her,
was intended to instil fear in her. This finding is not unreasonable
in light of the evidence of Moodley to the effect that she was
shocked and that the e-mail had instilled fear in her. Msomi also
testified that he was shocked at the inappropriate, disrespectful and
insolent language used by the Applicant. I further find this
conclusion reasonable in the circumstances of the facts of this
case. An employee of nine years’ service should know
that
these words would instil fear in another employee who happened to be
his manager. Apart from the fact that these words will
instil fear in
a co-employee, such an e-mail is simply inappropriate in a working
environment. .
[24]
I also find the Commissioner’s
finding that the respondent’s witnesses corroborated each other
in material aspects reasonable.
Her conclusion that the evidence of
Msomi, Kilburn and the chairperson all confirmed that the applicant
had been afforded an opportunity
to withdraw his e-mail but that he
refused to do that is consistent with the record. I also find that
the Commissioner’s
conclusion that the fact that the applicant
had refused to withdraw the e-mail served to endorse the fact that
the applicant meant
to scare and intimidate Moodley, reasonable.
[25]
In the event I find that the Commissioner’s
finding that the dismissal was substantively and procedurally fair,
to be reasonable.
This is not a finding that no reasonable
commissioner could have arrived at. In the event the application to
review is dismissed.
I can find no reason why costs should not
follow the result.
AC Basson, J
APPEARANCES:
For the Applicant:
Adv T Seery instructed by Deneys Reitz
For the Respondent: RCW Pemberton –
Garlicke and Bousfield