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[2011] ZALCJHB 12
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General Industrial Workers Union of South Africa and Another v Mhaphuli NO and Others (JR 598/07) [2011] ZALCJHB 12 (13 January 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
Reportable
CASE
NO.: JR 598/07
In the matter
between:
GENERAL
INDUSTRIAL WORKERS
UNION
OF SOUTH AFRICA
…..........................................................
First
Applicant
MCUBUSE
….....................................................................................
Second
Applicant
and
J.
MHAPHULI N. O.
…......................................................................
First
Respondent
NATIONAL
BARGAINING COUNCIL
FOR
THE CHEMICAL INDUSTRY
….......................................
Second
Respondent
AFRICAN
EXPLOSIVES LIMITED
….........................................
Third
Respondent
Judgment
Molahlehi J
Introduction
The applicant who
is the respondent in the main review application has brought an
application in terms rule 11 of the rules of
the court. In terms of
this application the respondent is seeking to have the review
application dismissed due to unreasonable
delay in its prosecution.
The review
application was the result of the dissatisfaction of the applicant
with the outcome of the arbitration award that had
been issued by
the first respondent, (the arbitrator) in terms of which he had
found the dismissal of the applicant to have been
fair and
accordingly dismissed the applicant’s claim of unfair
dismissal.
Background facts
The
second applicant who was prior to his dismissal employed as a
machine operator was charged and dismissed for being under the
influence of alcohol. The alcohol test which was conducted on the
applicant according to the respondent on the day in question
indicated that he was under the influence of alcohol as his blood
alcohol content had been 2 and .229 which reflected that the
applicant had consumed alcohol in great quantity. The second
applicant will for ease of reference be referred to as the
“employee”
and the third respondent as the “employer”.
Following his
dismissal the employee referred a dispute concerning an alleged
unfair dismissal to the second respondent. The matter
was arbitrated
upon by the arbitrator who found that the dismissal of the applicant
was for a fair reason and confirmed the dismissal
as being fair.
The
employeewas unhappy with the decision of the arbitrator and
accordingly launched a review application on the 22
nd
March 2007. In this regard the employee challenged the arbitration
award on several grounds. The grounds of review are set out
in the
applicant’s founding affidavit as follows:
“
13.1 The
[Panelist] committed a gross irregularity and misapplied his mind
when, arriving at the decision that the dismissal of
[Mcubuse]
was
fair,
he attached undue importance on the fact that the alcohol level of
[Mcubuse] higher than the employee that was not dismissed;
13.2
The
award was defective for these reasons because the [Panelist]
attached undue importance to the argument of the Third Respondent
that [Mcubuse] unlike the other employee held a position that,
if
[Mcubuse] was under the influence, would become extremely dangerous
The [Panelist]
decision in this regard was unjustifiable and irrational in that the
rule laid down by the Third Respondent concerning
the consumption of
alcohol did not distinguish between the amount of alcohol consumed
and the level of alcohol in the blood but
stated unambiguously that
anyone, no matter the percentage of alcohol in the blood, found to
be under the influence of alcohol
would be dismissed;
The [Panelist]
committed a gross irregularity and a gross error of law when he
failed to apply the law in relation to the parity
principle which
states that like cases should be treated alike and that deviation
from this principle is only justified if there
are material factors
that distinguish the case of employees who commit the same offence
but are punished differently;
In this matter
there were no material factors that distinguished [Mcubuse]'s case
from the other;
The [Panelist]
committed a gross irregularity and misapplied his mind when he
regarded the level of alcohol in [Mcubuse]'s blood
and the nature of
[Mcubuse]'s work, apropos whether it was dangerous or not, as
material factors that justified distinguishing
between the two
cases;
The [Panelist]
committed a gross irregularity in this regard because he merely
accepted that these factors were relevant and failed
to inquire into
whether these factors had been raised for the first time in the
arbitration or whether these factors had been
raised in [Mcubuse's]
disciplinary inquiry and had informed on the Third Respondent
decision to dismiss [Mcubuse];
If he had
conducted such an inquiry he would have found that he was precluded
from taking these factors into account as the allegations
had only
surfaced at the arbitration and had not been raised in the
disciplinary inquiry;
The [Panelist]
committed a gross irregularity and a gross mistake of law when he
accepted the evidence concerning why the Third
Respondent
differentiated between the two cases and failed to consider whether
the allegations placed before him by way of argument
and not through
evidence under oath, was admissible in terms of the rules of
evidence and failed to consider that if so, what
probative value, if
any, he should attach to such evidence;
Had the
[Panelist] properly applied his mind to all the evidence and
conducted the arbitration in a manner required of him by
law he
would not have reached the conclusion that he did but would have
found that the dismissal of [Mcubuse] was unfair."
The bargaining
council dispatched the notice in terms of rule 7A (2) (b) of the
Rules of the Court to the Registrar on the 30
th
March
2007 and a further notice was filed on the 4
th
April
2007.
According to the
employer the employee did nothing of substance that would have
progressed to review application any further since
the rule 7A
notice.
The case of the
employee
The case of the
employee is that shortly after being made aware that the bargaining
council had filed the record with the Court
in terms of rule 7A,
instructions were given to the transcribing company to uplift the
same and provide a transcription fee quote.
The request for the
transcription was made on the 25
th
May 2007 and the
quotation was received on the 4
th
June 2007. Thereafter,
the employee’s attorney of record uplifted the transcribed
record during July 2007. The attorney
says after uplifting the
transcribed record he noticed that the record was defective and in
several areas it was inaudible and
apparently a large portion of the
oral evidence was not captured.
The employee’s
attorney, Mr. Cartwright says once he discovered the defect in the
transcription of the record, he wrote
a letter to the bargaining
council and requested the commissioner’s notes with the view
to reconstructing the record. Unfortunately
the bargaining council
did not heed to the request and thus did not furnish the hand
written notes of the commissioner.
According to Mr.
Cartwright the bargaining council responded to his letter by
contacting him telephonically during July 2007.
After that nothing
happened until October 2008 when Mr. Cartwright again contacted the
bargaining council to enquire as to what
happened to his request for
the hand written notes of the commissioner. He was advised to put
his request in writing which he
did on the 1
st
October
2008. Except for acknowledging receipt of that letter the bargaining
council did nothing with regard to the hand written
notes of the
arbitrator.
The next follow up
with the bargaining council regarding the hand written notes of the
arbitrator by the applicant, which also
did not produce any result,
was on the 29
th
March 2009. Mr. Cartwright says after
that he received advice from another attorney who advised that he
should approach the Labour
Court on an urgent basis and that an
order compelling the bargaining council to produce the hand written
notes. It would seem
that whilst pondering an application to compel
production of the hand written notes, Mr. Cartwright received a
telephone call
from the bargaining council regarding the same issue
and that made him belief that the matter will then be resolved and
presumably
the need to institute an application to compel production
of the hand written notes was no longer relevant for that reason.
Unreasonable
delay rule
The application of
the unreasonable delay rule has received attention in several cases
in our law. In terms of this rule a party
that institute the
proceedings but then fails to prosecute it timeously may lose the
right to proceed further with his or her
claim if it is shown that
objectively assessed from the point of view of the delay he or she
has lost interest in pursuing the
matter. In general the courts, in
considering whether or not to grant dismissal of a matter due
unreasonable delay, takes the
following factors into account: (a) is
the delay in the prosecution of the matter excessive; (b) is there a
reasonable explanation
for the delay; (b) what prejudice will the
other party suffer if the dismissal is not granted; and (c) are
there prospects of
success in the main case.
There
are several Labour Court decisions that have taken the inquiry
further to include inquiring into what steps did the respondent
take
in ensuring that there is no delay in the prosecution of the matter.
In
Sishuba v National Commissioner
of SAPS
(2007) 10 BLLR 988
LC and Bezuidenhout v Johnston No &
Other
(2006) 12 BLLR 1131
LC, it
was held that the respondent party, when confronted by the delay in
the prosecution of a claim needs to place the offending party
on
terms or seek the intervention of the Registrar or file an
application to compel. This approach was endorsed in
Karan
Beef Feedlot & Another v Randall (2009) 30 ILJ 2937 (LC
),
where the court held that the respondent party is “
not
entitled to lie in wait, intending to ambush the applicant once a
period of delay becomes sufficiently protracted to justify
the
filing of an application to dismiss.”
In other words the
court in that regard placed the responsibility also on the
respondent to ensure that there is compliance with
the time frames
within which a matter is brought to finality.
In
NACBAWU
and
Another v/s
Springbok Box (Pty) Ltd
t/a Summit Associated Industries and others
Case No: J2367/06
,
this court held that it is not every
inaction or failure on the part of the respondent to place the
applicant on terms that would
result in the failure to obtain claim
for dismissal due to unreasonable delay. The court in dealing with
this issue had the following
to say:
“
The other
factor which needs to be weighed together with these factors is the
inaction or otherwise of the respondent in ensuring
that the matter
is brought to finality. The defense of a party opposing an
application for the dismissal of a claim on the basis
of unreasonable
delay is quite often that the other party in not taking action to
progress the matter to the next step also contributed
to the delay.
In this regard often judgments relied upon are those of
Buzuidenhout
v Johnston NO & others
[2006] 12 BLLR 1131
(LC) and Karan Beef
Feedlot & Another v Randall (2009) 30 ILJ 2937 (LC).
I do not read those judgments as saying that the inaction of the
applicant in an application to dismiss a matter on the basis of
unreasonable delay is necessarily an absolute defense. The
contribution in the delay by the party seeking to have the matter
dismissed
for delay in prosecution must be objectively assessed with
the view of evaluating the extent to which the inaction of the
applicant
contributed towards the excessiveness or otherwise of the
delay. The inaction has to be weighed against the objective facts
that
may point towards loss of interest in pursuing the matter by the
party opposing such an application. It may well be that the facts
and
the circumstances objectively point to a case where the respondent
can be said to have abandoned or lost interest in the matter.
In that
instance I do not belief that it would be correct and fair to blame
the applicant for contributing to the delay due to
his or her
inaction.”
As indicated
earlier the view that it is not in every case that inaction or
failure by the respondent to put the applicant on
terms that would
result in failure to obtain an order dismissing the claim for delay
in prosecution has support in the
Karen Beef
Feedlot
where at paragraph [10] of that judgement the court had the
following to say:
“
[10] It
seems to me that the approach adopted both in the Buzuidenhout and
Sishuba cases requires that a respondent party confronted
by an
unreasonable delay on the part of an applicant ought at least to
place the offending party on terms, or to seek the intervention
of
the Registrar or file an application to compel (when these steps are
appropriate), prior to filing an application to dismiss.”
It is thus my view
that in an unreasonable delay claim refusal to grant the relief due
to the inaction of the respondent or failure
to put the applicant on
terms will depend on the facts and the circumstances of a given
case.
Evaluation
There
is no doubt that
the employee in the
present instance has unreasonably delayed in the prosecution of his
review application. The delay is excessive
and explanation proffered
by Mr Cartwright is unsatisfactory and unreasonable. The facts and
circumstances of this case are such
that the review application
stands to be dismissed for unreasonable delay even though the
employer had not placed the employee
on terms regarding the speedy
prosecution of the review application.
In
analysing and evaluating the delay in the prosecution of the review
application the starting point is to note that the arbitration
award
was issued on the 2
nd
February 2007, and the review application was
thereafter filed on the 22
nd
March 2007. In essence the employee has done
nothing since the 22
nd
March 2007 to the 4
th
June 2010 when this matter was heard by this
court.
The only thing that
Mr Cartwright did was to write letters requesting the bargaining
council to provide him with the hand written
notes of the
arbitrator. In fact even then he waited for a year and three months
before formally writing to the bargaining council
requesting for the
hand written notes of the arbitrator. After the first letter a
period of six months went pass without the
employee doing anything.
Another
letter was addressed to the bargaining council on the 20
th
March 2009, in which the employee made a follow
up with regard to the hand written notes of the arbitrator. There is
nothing in
the letter showing exigency or desire to have the notes
in question made available so as to bring the review application to
finality.
The letter is silent in as far as placing the bargaining
council on terms with regard to producing the hand written notes. If
indeed the employee was interested in reaching finality in the
matter then it would have been expected at that stage for the
employee to have put the bargaining council on terms or at least to
have indicated the prejudice that the delay has on the parties’
interest. In my view it is apparent from the reading of this letter
that the employee was not interested in the prejudice that
the
employer would suffer as a result of the delay occasioned by the
unreasonable delay in bringing this matter to finality.
Whilst it is
apparent that the major portion of the blame is on Mr. Cartwright,
the employee and the union also take a significant
aspect of that
blame. There is no evidence as to what the employee or his union did
for over a year to show interest in having
his review application
brought to finality. There is no evidence that both the employee and
the union are still interested in
this matter and if so why did they
not follow up their attorney to find out the reason for the delay in
finalising their matter.
As reasonable and diligent litigants, the
union and the employee ought to have taken steps in the period of a
year to have also
put their attorney on terms in terms of
progressing their matter. Had they enquired as to the cause of the
delay they would have
noticed that Mr Cartwright did not know what
to do with the failure to produce the written notes of the
arbitrator. A reasonable
litigant would on that score have sought
second opinion from another attorney.
As concerning the
prospects of success, as indicated earlier one of the points relied
upon by the employee is the alleged inconsistent
application of the
discipline. In this respect the employee contended that another
employee who was also found guilty of being
drunk at work was not
dismissed but was given a written warning.
The approach to be
adopted by arbitrators when confronted with the issue of
inconsistent application of discipline or in the application
of what
is sometimes referred to as the parity rule is well established. It
is trite that the complaint about the inconsistent
application of
discipline is a matter that needs to be taken into account in the
assessment and evaluation of the fairness of
the dismissal of the
employee complaining about the same. In the review application on
the other hand what the court needs to
do is to determine whether or
not the arbitrator in dealing with the complaint about inconsistent
application of the discipline
applied his or her mind that as part
of the consideration of the fairness of the dismissal. The other
consideration is whether
or not on the facts and the circumstances
which were presented during the arbitration hearing, the decision of
the commissioner
is one which a reasonable decision maker could not
reach. See
Sidumo Rustenburg Platinum Mine
(2007) 27 BLLR 1027
(CC).
In
SACCAWU and
Others v Irvin v Johnson Ltd(1999) 20 ILJ 2303(LAC)
at 2313
(paragraph 29) the court in dealing with the issue of inconsistent
application of discipline had the following to say:
“
.
. . Where, however, one is faced with large number of offending
employees, the best that one can hope for is reasonable consistency.
Some consistency is the price to be paid for flexibility, which
requires the exercise of discretion in each individual case. If
a
chairperson (of disciplinary hearing) conscientiously and honestly,
but incorrectly, exercises his or her discretion in a particular
case
in a particular way, it would mean that there was unfairness towards
the other employees. It would mean no more than that
his or her
assessment of the gravity of the disciplinary offence was wrong. It
cannot be fair that other employees profit from
that kind of wrong
decision. In a case of a plurality dismissal, a wrong decision can
only be unfair if it is capricious, or induced
by improper motives
or, worse, by a discriminating management policy.”
There can be no
doubt from the reading of the arbitration award that the arbitrator
considered and applied his mind to the complaint
of the employee
about the alleged inconsistent application of discipline. In
accepting the differentiation between the case of
the employee and
that of the other employee who was given only a written warning the
arbitrator considered the different features
between the two cases
in this respect the commissioner applied the necessary criteria of
assessing the fairness of the dismissal
in the context of the
allegation of inconstancy. The arbitrator found that the case of the
other employee was different to that
of the other employee as his
case was more serious in the following respect:
“
Where
it concerned similar cases the affected employees were not exposed to
similar job hazards, did not pose a danger to themselves
or fellow
workers and their blood alcohol was lot less compared to the
Applicant’s blood alcohol content.”
It therefore cannot
be said that the arbitrator failed to apply his mind to the
complaint of the employee that he was unfairly
treated because of
the differentiation in the sanction imposed. The arbitrator
appreciated the task he was ceased with and properly
applied the
principle of fairness in relation to the application of discipline
regarding the two cases.
In light of the
facts and circumstances of this case I am of the view that the
respondent has made out a case justifying the dismissal
of the
review application on the ground of unreasonable delay. In my view
there is no reason in law and fairness why the costs
should not
follow the results.
In the premises the
applicant’s review application is dismissed with costs.
MOLAHLEHI
JUDGE OF THE
LABOUR COURT JOHANNESBUG
Date of Hearing: 4
th
June 2010
Date of Judgment:
13
th
January 2011
Appearances
For the applicant:
Mr. D Cithi of Parrot- Van Niekerk-Woodhouse- Matyolo Inc
For the respondent:
Mr. D Cartwright of David Cartwright Attorneys
15