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[2011] ZALCJHB 174
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Skhosana v Gauteng Coaches (Pty) Ltd and Others (JR 307/09) [2011] ZALCJHB 174 (9 February 2011)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE NO. JR 307/09
In the
matter between:
ISAAC
T. SKHOSANA
APPLICANT
and
GAUTENG COACHES (PTY) LTD
FIRST RESPONDENT
COMMISSIONER K. KLEINOT
SECOND RESPONDENT
SOUTH AFRICAN ROAD PASSENGER
BARGAINING COUNCIL
THIRD RESPONDENT
___________________________________________________________________________
JUDGMENT
___________________________________________________________________________
LAGRANGE J:
Introduction
After hearing the parties a judgment with brief reasons was handed
down after hearing the matter on 09 February 2011. Below
is the
final edited version of the
ex tempore
judgment.
The matter concerns the review of a condonation ruling by an
arbitrator dismissing the late referral of the applicant’s
unfair dismissal dispute to a bargaining Council.
The applicant, a bus driver, had been dismissed for instigating bus
passengers against inspectors who had boarded his bus to
check
passengers’ tickets.
The delay
The applicant referral was approximately 9 months overdue when he
finalized it. The applicant had been dismissed following a
hearing
on 19 July 2007. He attempted to refer his unfair dismissal dispute
on 16 August 2007 but failed to provide any proof
of service on the
respondent employer as required by section 51(2)(c) of the Labour
Relations Act 66 of 1995 (‘the LRA’).
The reasons given for the delay
The applicant relied in his founding affidavit in the condonation
application on illness as the reason he could not finalise
the
referral of his unfair dismissal dispute in good time. According to
a certificate provided by any registered traditional
healer, the
applicant was unfit for work from 10 August 2007 to 5 May 2008. The
illness described in the certificate is identified
only as "STROKE"
(sic). The certificate further states that the applicant was
examined by the traditional practitioner
at the start of his illness
on 10 August 2007. Despite the apparent seriousness of the illness
the applicant was able to file
his incomplete dispute referral six
days later.
There also appears to have been evidence that by 7 December 2007 he
was made aware that his initial referral was defective. However,
he
only corrected it when he filed his condonation application in May
2008. The applicant apparently received a letter from the
bargaining
Council advising him that the referral was defective and he spoke to
a staff member at the Council to determine what
steps he needed to
take.
A delay of nine months is excessive. Although the applicant had a
medical certificate issued by a registered traditional practitioner,
he was capable of making the initial referral it would appear that
even at the onset of his illness. Logic dictates that if he
had
suffered from a ‘stroke’ in early August but was still
able to fill in forms and submit them to the council shortly
afterwards, he ought to have been more able to do so with the
passage of time. The fact that the traditional practitioner did
not
confirm having seen the applicant after 10 August 2007, yet booked
him off for such a long period without any further consultation
raises some serious questions about the credibility of the
certificate, which is reflected in doubts expressed by the
arbitrator
about how he could have been ill for such a long period
but still able to do what was necessary to file an application in
the
early stage of his illness.
In the circumstances, the applicant’s explanation in his
founding affidavit for doing nothing further until May 2008 is
not
very satisfactory to say the least.
At the hearing before this court, the applicant offered a number of
other explanations for the late finalisation of his referral,
including allegedly having to make payment of moneys to Tokiso
1
,
and not having an understanding the need to file a condonation
application until May 2008. None of these were offered to the
arbitrator as reasons for his lateness in his condonation
application, and there is no reason why they would not have been
mentioned if they had been factors delaying the progress of his
matter. As I explained to the applicant, in these proceedings
the
court must evaluate the arbitrator’s decision on what was
before her, not on additional evidence he sought to place
before me,
which could have been raised before the arbitrator.
Merits of the applicant’s unfair dismissal claim
The arbitrator also found that the prospects of the applicant's
success on the merits of his claim were slim. In the founding
affidavit to his condonation application, the applicant placed
precious little information before the arbitrator to explain why
his
dismissal was unfair. On the question of the substantive fairness of
his dismissal, the applicant simply states that he did
not commit
any misconduct that would justify his dismissal. He also claimed
that no pre-dismissal procedures were followed before
the dismissal
took place. It is only in this application to review the condonation
ruling that he expands on the merits of his
case. In the review
application he claims that the bus was full of passengers and the
only space available on the bus was at
the steps of the front of the
bus. He says he ‘humbly’ asked the inspectors how they
would manage to check tickets,
while the bus was full.
None of these allegations were placed before the arbitrator.
However, what she did have before her were the incident report forms
apparently completed by inspectors in question, which detailed how
the applicant had shouted at them and how this had provoked
the
passengers to also become aggressive making it impossible for them
to check the tickets. According to the signed incident
forms matters
escalated to the point where they could not conduct an inspection
and the bus had to stop on the road so they could
get out. It was
also part of the information before the arbitrator that although the
bus was full according to the inspectors’
report, only one
ticket was issued by the applicant for that trip.
There was also ample documentary evidence before the arbitrator of a
number of dates on which the applicant’s internal
disciplinary
enquiry had been re-scheduled. Further, there is also a what appears
to be a handwritten minutes of the enquiry
hearing which was
scheduled for 19 July 2007. This records that when the applicant and
his representative failed to have the
enquiry dismissed on account
of the delays before it commenced, they then walked out of the
enquiry and it proceeded in their
absence. This documentation flies
in the face of the applicant's bald claim that no pre-dismissal
procedures were followed.
In court the applicant also claimed that the company witnesses,
namely the two inspectors, were not called as witnesses and
accordingly he could not challenge them. The copy of the enquiry
attendance register for 19 July 2007, which appears in the record,
shows that on that day, which is the same day the applicant
allegedly walked out the enquiry, one of the inspectors, Mr Shongwe,
was present as a witness. So, even if the applicant’s belated
claim that he was unfairly treated because of the absence
of company
witnesses could be considered, an explanation would have to be given
for the appearance of Shongwe’s name on
the attendance
register. In any event, this claim by the applicant was not before
the arbitrator, but the copy of the attendance
register was.
In the circumstances I cannot find anything wrong with the
arbitrator's conclusion that the applicant’s prospects of
success are slim on the record before him.
Prejudice
The arbitrator also evaluated the relative prejudice to the parties
of the consequences of refusing or granting the condonation
application. Apart from the prejudice to the applicant of not being
employed the arbitrator also took account of the fact that
the
employer would be prejudiced as some of its witnesses were no longer
available. There is nothing inherently unreasonable
about the
arbitrator's evaluation of this issue.
Conclusion
Considering the evidence that was actually placed before the
arbitrator for the purposes of considering the review application,
it cannot be said that the arbitrator reached conclusions which no
reasonable arbitrator could have drawn or that she did not
exercise
her discretion to refuse condonation in a judicious manner.
In consequence, I'm satisfied that the applicant has not made out a
case for setting aside the arbitrator's condonation ruling,
and make
the order below.
Orde
r
The application to set aside the second respondents condonation
ruling dated 11 February 2009 under case number SARPBAC 08/69
is
dismissed and no order is made as to costs.
ROBERT LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of hearing: 09 February 2011
Date
of judgment: 09 February 2011
Appearances:
The
applicant appeared in person
For
the First Respondent: Ms N Koulountis of Koulountis Inc.
1
In passing, I note that it seems that Tokiso is
accredited to perform the dispute resolution functions of the
bargaining council.