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[2011] ZALCJHB 183
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Tshabalala v Commission for Conciliation Mediation and Arbitration and Others (JR 269/2008) [2011] ZALCJHB 183 (13 July 2011)
IN THE LABOUR COURT OF
SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO: JR 269/2008
NOT REPORTABLE
In the matter between:
KHAZAMULA PHINEAS TSHABALALA
Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION (
CCMA)
First
Respondent
THSEPO MASHIGO
Second
Respondent
IQ SECURITY CONSULTANT
Third
Respondent
JUDGEMENT
MOSAM AJ :
This matter concerns a review
application to set aside a decision taken by the Second Respondent
(“
the Arbitrator
”) on 30 November 2007 under case
number GAPT 7469/07 wherein the Second Respondent made a finding
that the Applicant had
not established the existence of a dismissal.
When this matter was dealt with,
Adv Gideon Scheepers kindly requested permission from the Honourable
Court to assist the Applicant,
who was a lay litigant. I expressed
my sincere appreciation for his timely intervention.
The relevant facts
It is not necessary for the purpose
of this judgment to restate the facts, but the salient ones are
mentioned below.
The Applicant referred a dispute to
the First Respondent wherein he complained that he was unfairly
dismissed.
At the arbitration hearing held
under the auspices of the First Respondent, the issue to be
determined by the Arbitrator was whether
the Applicant was dismissed
or not.
The Applicant applied to be legally
represented, which application was refused by the Arbitrator.
Mr Scheepers correctly submitted,
in my view, that the dispute did not concern misconduct or
incapacity and therefore the Applicant
was entitled in terms of Rule
25 of the CCMA Rules (
“the Rules”)
to be
automatically entitled to legal representation, if he so desired.
Mr Scheepers further submitted that
in light of the above, the decision rendered by the Arbitrator was
unreasonable.
In respect of condonation for the
late filing of the application to the Honourable Court, it was
submitted on behalf of the Applicant
that the application was filed
eight days late and a proper explanation was provided for the late
filing.
Insofar as the prospects of success
are concerned, the Arbitrator committed a gross irregularity in that
he did not allow the
Applicant legal representation.
Condonation
The legal authorities on
condonation are clear. The fundamental question that an arbitrator
or Court must decide in dealing with
a condonation application is
whether or not it is in the interests of justice to grant
condonation.
In
Brummer
v Gorfield Bros. Investments (Pty) Ltd & Others
[2000] ZACC 3
;
2000 (2) SA 837
(CC)
the Constitutional Court said :
“
Ultimately condonation
should be granted if it is in the interests of justice to do so.”
In
Toyota S A Marketing v
Shemizer
2002 (12) BLLR 1164
(LAC)
the Court said that the
decision whether or not to grant condonation is
“to be
based on fairness having regard to all the relevant facts.”
In
Nehawu obo Mofokeng &
Others v Charlotte Theron Children’s Home
(2004) 10 BLLR 979
(LAC)
Davis AJ with the concurrence of the Court said :
“
The approach in
Miya
was qualified with a measure of flexibility, in that failure to
provide a reasonable and acceptable explanation for a delay was
not
regarded necessarily as an absolute bar to condonation.”
The Court was referring to
Miya v Putco Ltd (LAC) Case No.
DA17198
.
See also:
National Bargaining
Council for the Road Freight Industry v Snyman NO & Others
(2004)
8 BLLR 784
(CC)
.
The Labour Court has on a number of
occasions set aside the refusal to grant condonation where the
Commissioner’s decision
reflected either an over-emphasis of
one requirement rather than another or was irrational (See for
instance the
Shoprite Checkers v Steenberg
case number
JR1912/3).
Review for reasonableness
In
Bato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs & Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC), the Constitutional Court at paragraph 47 set out the factors
that a Review Court should consider in deciding whether a
decision
was reasonable. The specific factor highlighted is the nature of
the decision and another is the competing interest
involved.
In
Fidelity Cash Management
Services v CCMA & Others
(2008) 3 (BLLR) 197 (LAC), the
Court said:
"Whether or not an
arbitration award or decision of finding of a CCMA Commissioner is
reasonable must be determined objectively
with due regard to all the
evidence that was before the Commissioner and what the issues were
that were before him or her."
In
Fidelity Cash
it was also
said:
"There is obviously an
overlap between the ground of review based on a failure to take into
consideration a relevant factor
and one based on the unreasonableness
of the decision. A consideration of the factors that a decision
maker is bound to take into
account, is essential to a reasonable
decision
.
If a decision maker fails to take into account a
factor that he or she is bound to take into consideration, the
resultant decision
can hardly be said to be that of a reasonable
maker."
Ngcobo J in
Minister of Health v New Clicks SA
2006 (2) SA 311
(CC).
Discussion
In respect of condonation, I am
satisfied that it is in the interests of justice that the Applicant
be granted condonation for
the late filing of the application.
I am further satisfied that the
Arbitrator rendered a decision that is unreasonable in not allowing
the Applicant to be represented
by a legal practitioner at the
arbitration proceedings.
Order
In light of the above, the
following Order is made:
The arbitration award rendered by
the Second Respondent on 7 December 2007 is reviewed and set aside.
The matter is referred back to the
First Respondent to be heard by a Commissioner other than the Second
Respondent.
There is no order as to costs.
___________________
A MOSAM
Acting Judge of the Labour Court
13 July 2011