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[2010] ZALCCT 12
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National Union of Metalworkers of South Africa and Another v Commissioner Van Staden NO and Others (C177/2006) [2010] ZALCCT 12 (12 March 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NO: C177/2006
In
the matter
between:
NATIONAL
UNION OF METAL WORKERS OF SOUTH AFRICA
First
Applicant
MICHAEL
EDWARD
DIEDRICH
Second
Applicant
and
COMMISSIONER
PIET VAN STADEN
N.O.
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
Second
Respondent
ESKOM
HOLDINGS
LIMITED
Third
Respondent
JUDGMENT
TIP AJ:
[1]
This application concerns a review of an
award made by the first respondent, a CCMA commissioner, which upheld
the dismissal of
the second applicant (“Diedrich”) by the
third respondent (“Eskom”). The review was however
instituted
well outside the prescribed period and, in consequence,
there is a preliminary application for condonation. Both
applications
are opposed and it is appropriate first to examine the
issue of condonation.
[2]
The award in this matter is dated 17
January 2005 and was apparently received by the Cape Town Regional
Office of NUMSA on 24 January
2005. NUMSA has acted on
behalf of Diedrich at all material times. The review
application should therefore have been
brought by 7 March 2005,
but this was done only on 26 March 2006, which amounts to a delay of
over one year.
[3]
The following account has been given as the
reason for this delay:
[3.1]
A decision by NUMSA about bringing a review
has to be taken at head office l evel after submission to it of a
motivation from the
local office. On 14 February 2005
Diedrich had a meeting with, among others, his representative at the
arbitration,
being a NUMSA regional legal officer (“Ryklief”).
A motivation was prepared during this meeting and left with
Ryklief
for finalisation and sending on to head office.
[3.2]
Thereafter, Diedrich is said to have been
out of town looking for work over a period of four weeks and could
not be contacted.
It is further averred that Ryklief was then
overwhelmed with law studies, after which he prepared for exams,
whereafter he went
on sabbatical leave for eighteen months. Because
of this he gave no more attention to the motivation and did not send
it
to head office.
[3.3]
There were other movements of staff in the
regional legal department, resulting in it being “
somewhat
dysfunctional”
during the period
January to July 2005. Diedrich in the meantime returned to Cape
Town in early June 2005, made enquiries
about the review, resulting
in it being sent to head office only on 8 June 2005.
[3.4]
A second set of problems then allegedly
presented themselves, being that the head office legal department was
understaffed.
This resulted in nobody reacting to the
motivation. No file was opened for this matter and it simply
lay around at NUMSA’s
head office, unattended. It was
only in November 2005, after further enquiry from Diedrich, that the
matter received consideration
and a decision was taken that a review
should be brought. An instruction was then placed with Sihlali
Molefe Inc, a law firm
in Johannesburg, to conduct the matter.
[3.5]
At this point a third set of problems
arose. That firm was in the process of moving office and,
although not known to NUMSA
at the time, was experiencing severe
financial difficulties, so much so that it closed down towards the
end of 2006. Because
of these dislocations in that firm, the
review application was filed only on 26 March 2006.
[3.6]
The applicants’ present attorneys of
record were instructed in August 2006. However, that firm
was provided with
all the necessary documents only at the end of
2007.
[4]
Eskom contests the adequacy of these
reasons for the delay in bringing this application timeously.
It joins issue with a number
of aspects concerning such reasons:
[4.1]
It contends firstly that no acceptable
reason has been given as to why Ryklief could not have completed the
motivation and transmitted
it to head office before he went on
sabbatical leave. Moreover, nothing has been stated about what
was or was not done in
respect of the handing over of any incomplete
work at the time that Ryklief went on leave. Although the
founding affidavit
refers to difficulties in respect of various
members of staff at the regional office “
during
the period between January and at least July 2005”
,
no precise dates are given in respect of any of these difficulties or
when the work of the office became dislocated in respect
of the
present matter. In particular, nothing definite has been said
by the applicants about the position in that office
as at
mid-February 2005 and the period immediately thereafter, which might
serve as an account for the nearly four months that
went by before
the motivation was at last sent on to head office.
[4.2]
It is also to be noted that the whereabouts
of Diedrich himself during this period is given vague and conflicting
treatment.
On the one hand, it is said that he was out of town
for four weeks and, on the other, that he was out of town until the
beginning
of June 2005, which is a substantially longer period of
time. In any event, no details are provided as to where he was
or
why he could not have remained in contact with Ryklief (or a
successor) in respect of his matter.
[4.3]
An additional and unsatisfactory feature
that emerges around the level of interest taken by Diedrich in his
case is the apparent
incompatibility of these two aspects. The
first is that Diedrich is said to have been under the assumption that
the review
application had already been launched by the time that he
came to make enquiries early in June 2005. Although no
particulars
are given about what was said by or to him, one assumes
that he thereupon understood that there had been an unacceptable
delay
and that this could compromise his review. Notwithstanding
that, there appears after that to have been a surprising lack of
follow up on his part after the belated despatch of the motivation to
NUMSA’s head office, where a decision about his case
had to be
taken. It is apparent from the founding affidavit that Diedrich
made no enquiries at all until early in November
2005, after the
lapse of about five full months.
[4.4]
Eskom points out also that no sufficient or
cogent reasons have been given in respect of the delay from 8 June
2005 to 26 March 2006.
The first portion of this
relates to the period 8 June 2005 to early November 2005.
This concerns the many months
when the motivation apparently received
no attention whatsoever in head office. The reason advanced for
this by the applicants
is that there were a number of staff members
who resigned “
during the latter
part of 2005”
. Although a
set of names has been furnished in the founding affidavit, that
hardly amounts to an explanation for the failure
even to open a file
when the motivation was received on or about 8 June 2005,
that date being a good deal earlier than
the latter part of 2005.
Again, although the papers are silent on this, one would have
expected the regional office to have
forwarded the motivation with an
indication that it had already been gravely delayed and that it
required urgent attention.
[4.5]
The second portion of the period in
question is the one between early November 2005 and 26 March 2006.
Other than for the
rather vague statements that the firm Sihlali
Molefe Inc was in difficulties, it is a striking aspect of the papers
that there
is no mention whatsoever of any follow up on the part of
the union in respect of the processing of the urgent instruction
which
it had given to that firm. Again, the papers are silent
in respect of precisely what was conveyed at the time of this
instruction,
but it must have been evidence to all concerned that the
position had already become very grave in respect of the delay.
There is no indication that either the union or Diedrich himself made
any attempt to hasten the lodging of the review application
and, of
course, an accompanying condonation application.
[4.6]
Eskom has referred to the trite proposition
that an application for condonation should be filed simultaneously
with the deficient
process to which it relates. The first
applicant is a union with considerable experience in labour related
litigation.
Some explanation should have been set out in its
papers concerning the fact that it apparently made no enquiry in
relation to the
filing of a condonation application. The
current attorneys of record ought also to have noted that no such
application had
been filed when this matter was transferred to them
in August 2006. Clearly, no attention of this sort was given to
the matter.
It was only after an order made by this Court on 18
July 2008 that attention was first given to the need for condonation,
resulting
in the filing of the present application on 8 August 2008.
[4.7]
Eskom further draws attention to the
unsatisfactory state of the record which has been filed in support of
the review application.
The first 235 pages of the transcript
are absent. Concerning this, there is no more than a bland
statement in an affidavit
that it appeared that a tape had been
over-recorded. What is entirely absent is any suggestion that
an attempt was made to
reconstruct the missing portion, either from
the arbitrator’s notes or, as would customarily be expected, in
conjunction
with the legal representatives of Eskom. That does
not end the shortcomings in the record. It is also so that an
entire
bundle relating to documents that were placed before the
arbitrator is absent from the record which has been placed before
this
Court. This is no explanation concerning this and there
has been no attempt to seek condonation for that omission. To
the extent that central documents are before me at all, this is
largely the result of them having been put up as annexures to Eskom’s
answering affidavit.
[4.8]
Eskom also contests the allegation advanced
by the applicants that there is no prospect of prejudice to it in
respect of the lateness
of the review application. It points
out that Diedrich was dismissed on 11 June 2003. That is a
long time ago.
Eskom states that his position was filled very
shortly thereafter and goes on to allege, pertinently, that the
relevant managers
were greatly perturbed by the late arrival of this
review application. In that context, it refers also to the high
degree
of competence required from employees who conduct the work
which Diedrich was required to perform.
[5]
It is convenient at this stage to set out
some general considerations relating to applications for
condonation. The general
principles are well known. See
for instance
Melane v Santam Insurance
Co Ltd
1962 (4) SA 531
(A) at 532C-F
and
Queenstown Fuel Distributors CC v
CCMA & others
(2000) 21 ILJ 1197
(LC) at 1198D-I. The following passage in
NUM
v Council for Mineral Technology
[1999]
3 BLLR 209
(LAC) at para [10] is pertinent:
“
It
is accepted by the Industrial Court and the Labour Appeal Court that
in considering whether good cause has been shown in an application
of
this kind, the approach in Melane v Santam Insurance Co Ltd
1962 (4)
SA 531
(A) at 532C–F should be adopted ... . The approach 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 therefore, the prospects of
success and the importance of the case. These facts are interrelated;
they are not individually decisive. What is needed is an objective
conspectus of all the facts. 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).
The courts have traditionally
demonstrated their reluctance to penalise a litigant on account of
the conduct of his representative
but have emphasised that there is a
limit beyond which a litigant cannot escape the results of his
representative’s lack
of diligence or the insufficiency of the
explanation tendered (Saloojee and another NNO v Minister of
Community Development
1965 (2) SA 135
(A) at 140H–141D;
Buthelezi & others v Eclipse Foundries Ltd (1997) 18 ILJ 633 (A)
at 638I–639A). Mr Pretorius,
who appeared for the appellants,
submitted that the Melane approach required adaptation in the light
of the value that the Act
accords to the proper ventilation of
disputes. However, the Act also accords emphasis to the speedy
resolution of such disputes.
Accordingly, there is no justification
for deviating from the Melane principles.
”
[6]
In my view the present case is one that
falls within the parameters of there having been no satisfactory
explanation for the delay.
It is a long delay and a proper and
full account in respect of it was required. I have detailed the
relevant allegations
above and it is apparent from them that large
portions of time are sought to be explained by vague and general
statements.
Cryptic explanations of that sort do not serve to
span the periods of time here in question.
[7]
To some extent, Diedrich has indicated that
the fault lay with his union representatives. I have considered
this aspect of
the matter above. All that the papers identify
are two moments of enquiry on his part. As indicated
previously, the
first of these should have alerted him to the fact
that there was a real problem in respect of the delay, despite which
there was
no resultant concerted effort on his part to see to it that
the necessary action was taken. I pause here to observe that
Diedrich does not fall into the category of lay litigants for whom
the requirements of legal procedures would be utterly obscure.
In any event, even lay litigants of that sort are required to give
attention to the course of their litigation and they cannot
merely
sit back for lengthy periods with the expectation that such
litigation is proceeding in an acceptable fashion. That
consideration certainly forms part of the case before me, where
Diedrich was himself well aware that there was a problem by, at
the
latest, early June 2005. See in this regard, in addition to the
passage from
NUM v Council for Mineral
Technology
cited above,
Universal
Product Network (Pty) Ltd v Mabaso & others
(2006)
27 ILJ 991 (LAC) at para [18]:
“
As
has often been stated the court is hesitant to debar a litigant from
relief, particularly where it is his attorney who has been
at fault:
Meintjies's case at 264A; Saloojee's case at 140H-141A; Reinecke v
IGI Ltd
1974 (2) SA 84
(A) at 92F-H. There are limits, however, even
where the attorney is largely to blame for the delay, beyond which
the courts are
not prepared to assist an appellant. The remarks made
in Saloojee & another v Minister of Community Development at
141C-E by
Steyn CJ bear repeating again:
'I
should point out, however, that it has not at any time been held that
condonation will not in any circumstances be withheld if
the blame
lies with the attorney. There is a limit beyond which a litigant
cannot escape the results of his attorney's lack of
diligence or the
insufficiency of the explanation tendered. To hold otherwise might
have a disastrous effect upon the observance
of the Rules of this
court. Considerations ad misericordiam should not be allowed to
become an invitation to laxity. In fact this
court has lately been
burdened with an undue and increasing number of applications for
condonation in which the failure to comply
with the Rules of this
Court was due to neglect on the part of the attorney. The attorney,
after all, is the representative whom
the litigant has chosen for
himself, and there is little reason why, in regard to condonation of
a failure to comply with a Rule
of Court, the litigant should be
absolved from the normal consequences of such a relationship, no
matter what the circumstances
of the failure are.'
”
[8]
When evaluating an application for
condonation, regard must be had not only to the position of the
applicants for relief, but also
to the position of the respondents.
That includes, among other matters, the interest that parties have in
finality concerning
disputes. The LRA prescribes periods within
which steps are to be taken. In general, parties are entitled
to assume
that such periods will be taken seriously and that their
stipulations will not be overlooked without good cause. In the
present
case it is my conclusion that the applicants have failed to
establish a satisfactory explanation in respect of the delay here at
issue. It is my view further that this is a matter that falls
within the parameters of the
dictum
quoted above in the
Council for Mineral
Technology
case, being that where there
is no reasonable and acceptable explanation for the delay, the
prospects of success are immaterial.
[9]
Nonetheless, in the event that I might be
wrong in my conclusion that the applicants have failed satisfactorily
to explain the delay,
I propose to consider whether there are
prospects of success of such an order that condonation should
nevertheless be granted.
The applicants’ submissions in
this connection depend upon two principal contentions, as advanced at
the hearing of this
matter. The first is that the arbitrator
should, at the very least, have found that the dismissal of Diedrich
was procedurally
unfair in that no proper hearing was conducted.
The second contention is that the arbitrator failed to consider that
the
person who wrote the letter of termination had but one month
earlier undertaken that Diedrich should attend a further Performance
Enhancement Program (“PEP”). On that basis it was
further contended that Diedrich was entitled to have had a
reasonable
expectation that such course of action would be followed, rather than
that his employment should be terminated.
[10]
I am not persuaded that these amount to
good or sufficient grounds in order for the arbitrator’s
conclusion to be reviewed
and set aside. This view follows from
a survey of the essential history concerning Diedrich’s
employment. Such
history places the events at the time of his
dismissal in context. By way of general background it is
necessary to bear in
mind that Eskom has in place a well developed
set of measures which are calculated to ensure ongoing competence
amongst its staff.
The need for such measures is underlined by
the technical requirements that are essential for the proper
functioning of a nuclear
power plant. Precision, diligence and
application are prerequisites and, I might add, it would be a matter
for grave public
concern if that were not the position. Against
that background, the following appear from the record and
documentation:
[10.1]
On 22 August 2000 Diedrich was given a
written notice by the Instrumentation Maintenance Services Manager
that his performance had
significantly deteriorated in the course of
the previous year. A particular aspect referred to in this
letter concerned the
Job Output Model (“JOM”) which
amounts to an agreed performance standard for the employee in
question. The letter
also raised concerns about the behaviour
and attitude on the part of Diedrich towards his supervisor and, more
particularly, recorded
that the management had had difficulty
discussing the JOM with him and that he had made no effort to enter
into such discussions,
despite numerous requests that he should do
so.
[10.2]
At the request of Diedrich, it was agreed
on or about 26 April 2001 that his rating would be reviewed,
pursuant to which he
was put on a PEP in order to assist him in
improving his performance.
[10.3]
On 14 May 2001 it was recorded that
Diedrich had failed to attend the meeting that had been arranged in
order to discuss his PEP.
A program was then furnished to him
which he was required to follow during the period 14 May 2001
to 10 August 2001.
[10.4]
On 21 June 2001 Diedrich was informed in
writing that there were concerns about his approach, including his
non-attendance at the
PEP meeting and his aggressive and
confrontational manner towards supervisors and colleagues. On 7
August 2001 Diedrich was
informed that certain areas and outputs had
not been met.
[10.5]
On 10 September 2001 Diedrich was informed
that he had now met his performance targets. It was noted in
positive and encouraging
terms that Eskom was “
extremely
pleased and encouraged by the fact that he had achieved this”
and it was further noted that it demonstrated that he was capable of
performing at the required level. At the same time,
it was also
recorded that:
“
Finally
it should also be clearly emphasized that should your performance
again be rated as unacceptable during the next twelve
months, you
will not necessarily again be placed on a PEP but a decision may be
made to address the poor performance in terms of
the Performance
Management Policy.”
[10.6]
The next development was that Diedrich was
provided with a JOM for the period January to December 2002.
Despite numerous requests
that he should sign it, he failed to do so.
[10.7]
By 26 July 2002 Diedrich’s poor
performance over the previous months again surfaced as a concern and
he was informed of this
in writing on that day. Three major
issues were highlighted, including his lack of commitment towards
training, his refusal
to accept or sign the JOM and his behaviour and
attitude towards his superiors.
[10.8]
A full performance review and planning
assessment was done in respect of the 2002 year. This found
that Diedrich was “
not meet”
,
meaning that he had not met the required targets. It observed
that there was a need for him to work on his key targets and
his
projects, as well as his attitude, in order to meet his JOM
requirements.
[10.9]
At the request of Diedrich, a consequential
performance appraisal had been postponed, which was then conducted on
21 January 2003.
Pursuant to this Diedrich was informed in a
letter dated 5 February 2003 that he had indeed been assessed as a
“
not meet”
for the 2002 performance period. The reasons and ratings for
particular targets were detailed. This letter further
stated:
“
You
are welcome to discuss any aspect of your performance or the content
of this letter with me at any time. Should you be
unwilling to
accept this assessment please note that you are entitled to appeal
against my decision in terms of the Performance
Management Policy.
In terms of this policy we will be required shortly to discuss and
compile an appropriate performance
enhancement program (“PEP”).”
[10.10]
After this Diedrich and his union
representative had a meeting on 19 February 2003 with Eskom’s
Human Resources Practitioner,
at which various concerns arising from
the letter of 5 February 2003 were identified and
addressed. This followed
upon the lodging of an appeal against
the finding of “
not meet”.
Subsequently, on 24 February 2003, the
appeal was turned down and the “
not
meet
” assessment was confirmed.
[10.11]
At the 19 February meeting, Diedrich
requested that the Maintenance Execution Manager should do another
performance appraisal, in
the presence of his supervisor and human
resources. Although there was no provision in the standing
policy for a step of
this kind, the Human Resources Practitioner
nevertheless recommended that this should be done in order to “
remove
any possible perception on behalf of the employee that the manager
may have been biased due to previous issues in their working
relationship”
.
[10.12]
The Maintenance Execution Manager then
conducted an independent review of Diedrich’s 2002 performance
assessment. He
came to the same conclusion, namely that
Diedrich was a “
not meet”
.
The outcome of this independent performance appraisal is dated
16 May 2003. It reports that the assessment
is
“
final”
and that the parties are to follow the correct procedures
thereafter. I should add that these events clearly overtook the
indication in the letter of 5 February 2003 and its suggestion that a
further PEP should be arranged.
[10.13]
On 21 May 2003 Diedrich was informed that
his position now had to be considered in the light of Eskom’s
documented Performance
Management Process. He was required to
attend a meeting on 23 May 2003 at which the alternatives had to be
examined arising
from Diedrich’s non-performance. In
terms of the Performance Management Process, such alternatives would
include transfer,
demotion or termination of service.
[10.14]
The meeting in fact took place on 2 June
2003. Diedrich was assisted by his union representative.
It resulted in a notification
dated 11 June 2003 that his services
had been terminated. It is apparent from that letter that the
principal contentions
raised on behalf of Diedrich were noted and
considered. Moreover, factors in favour of Diedrich, as well as
those counting
against him were evaluated. Careful
consideration was given to the alternatives of another PEP, demotion
or transfer.
Ultimately, the conclusion was that Diedrich had
failed to meet the standards that had been set for him and had also
failed to
avail himself of support mechanisms which had been put in
place by Eskom.
[11]
The arbitrator considered all these events
and the relevant correspondence in his award. In addition to
the documentation,
he had the advantage of a very full hearing in
respect of all these issues. The hearing extended over thirteen
days and produced
a correspondingly lengthy transcript. I have
seen nothing and my attention has been drawn to nothing to suggest
that the
arbitrator misdirected himself in respect of any of that
body of evidence.
[12]
To revert to the two main contentions
advanced on Diedrich’s behalf, it is my view that neither of
them can be sustained.
The procedure that led to the
termination of Diedrich’s service with Eskom was conducted in
accordance with standing policy.
None of it generates a sense
that the ordinary rules of justice were in any way affronted.
In the second place, I have already
noted that the suggestion that
Diedrich was still entitled as at the end of May 2003 to another
round of PEP is not a well founded
reflection of what took place.
If Diedrich entertained any expectation in that regard, it was not a
reasonable one.
[13]
In the circumstances, I am satisfied that
there is no good reason for the arbitrator’s conclusions to be
disturbed.
A fortiori
,
there is no good reason to consider that there is such a
preponderance of probability in favour of Diedrich in respect of
prospects
of success, that the difficulties arising in respect of his
condonation application could be cured. To the contrary, it is
my view that the condonation application must fail on all the grounds
raised in opposition to it.
[14]
As is apparent from the reasons set out
above, both applicants are at fault in respect of the late filing of
the review. It
is appropriate that they should both be liable
for the costs thereof. Those costs will include the extent to
which it was
necessary to deal with the merits of the review
application for the purpose of determining the condonation
application.
[15]
I accordingly make the following order:
[1] The application for
condonation in respect of the late filing of the application for
review is dismissed.
[2] The applicants are
ordered jointly and severally to pay the third respondent’s
costs in respect of the condonation application.
[3] The application for
the review of the arbitrator’s award dated 17 January 2005 in
respect of case number WE6865 03
is removed from the roll.
[4]
The second applicant is ordered to pay such of the third respondent’s
costs in respect of the review application as are
not included in the
costs order made in paragraph [2] of this order read with paragraph
[14] of this judgment.
______________________________
KS TIP
ACTING
JUDGE OF THE LABOUR COURT
DATE
OF HEARING:
27 January 2010
DATE
OF JUDGMENT:
12 March 2010
FOR
APPLICANTS:
Advocate K Lengane
I
nstructed
by Ranamane Phungo Inc
FOR
THIRD RESPONDENT:
Mr
J Ramages
of J
Ramages Attorneys