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[2011] ZALCJHB 64
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Emerald Safari Resort and Casino v Hlongwane NO and Others (JR 3257/06) [2011] ZALCJHB 64 (22 July 2011)
MOLETSANE
AJ
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO: JR 3257/06
In
the matter between-
EMERALD
SAFARI RESORT AND CASINO
…..............................................
Applicant
And
COMMISSIONER
E. HLONGWANE N.O.
…........................................
First
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
…..............................................
Second
Respondent
ISAAK
BESSIE
…...................................................................................
Third
Respondent
Date
of hearing : 19 July 2011
Date
of judgment : 22 July 2011
JUDGMENT
MOLETSANE
AJ
Purpose
of this application
The
applicant in this matter seeks to review and correct and/or set
aside the certificate of outcome of the conciliation proceedings
under case number GAJB 906/06 dated 14 September 2006. The applicant
also seeks an order that the third respondent`s referral
to the
second respondent under the same case number be dismissed and set
aside. Although the application was unopposed, Attorney
J. Roets
appeared for the third respondent.
Factual
background
The
facts in this matter are relatively straightforward. The background
is as follows:
The
third respondent was employed by the applicant as a Table Dealer on
01 December 1998.
On
10 August 2005, the third respondent addressed a letter to Table
Management complaining about an unfair labour practice.
The
Applicant responded to the third respondent in a letter dated 11
August 2005, where it was brought to his attention that
Management
had already dealt with the issues raised by him in a meeting and if
he had any further grievance, he should utilise
the applicant`s
grievance procedure.
On
2 November 2005, the third respondent addressed a letter of
resignation to the applicant, alleging that “
continued
service has become intolerable and I have become a victim of loaded
silence. Operating under such unresolved conditions
is
unbearable”.
On
3 November 2006 the applicant`s Human Resources Department received
a notice of set down for arbitration from the second
respondent.
The arbitration was scheduled to take place on 17 November 2006.
On
17 November 2006, the applicant`s attorney of record-Ms. M. Chenia
attended the CCMA for the scheduled arbitration hearing
on behalf
of the Applicant.
At
the arbitration hearing Ms.Chenia requested from the Arbitrating
Commissioner to peruse the CCMA file in order to establish
whether
there was proper service on the Applicant.
Ms.
Chenia realized that proof of service attached to the referral for
conciliation did not coincide with the date of signature
of such
referral. The registered slip attached to the 7.11 referral form
indicated that the referral form was served on the
applicant on 12
December 2005 but the referral form was only dated and signed on 15
December 2005. However, the CCMA stamp
on the 7.11 form indicated
that the referral form was only filed at the CCMA on 8 September
2006. The certificate of outcome
was only issued on 14 September
2006, some nine months after the purported service of the referral
for conciliation.
Applicant`s
main dissatisfaction
The
Applicant`s main gripe is that while the Applicant had resigned on 2
November 2005, the referral form claiming constructive
dismissal was
only referred to the Second Respondent (“the CCMA”) on 8
September 2006.
The
applicant contends that the applicant has failed to refer the
alleged constructive dismissal dispute to the CCMA within the
30 day
period as prescribed in section 191(1) of the Labour Relations Act
(“the LRA”). The applicant also contends
that the third
respondent’s late referral to conciliation was not accompanied
by the condonation application as required
by Rule 9(1) of the CCMA
Rules.
Arbitration
proceedings postponed
As
a result of Ms. Chenia raising the above points, the arbitrating
commissioner postponed (rightly so in my view) the arbitration
hearing in order to give the applicant an opportunity to review the
certificate of outcome and the referral of the dispute to
conciliation.
Evaluation
In
my view, it is the commissioner’s duty before s/he issues a
certificate of outcome to satisfy herself/himself that the
dispute
was referred to the CCMA within the requisite period of 30 days.
In
casu
the certificate of outcome does not indicate when the
dispute was referred to conciliation.
I
agree with Ms. Chenia for the applicant that the referral was way
out of time and the CCMA had a duty to direct the third respondent
to apply for condonation before the certificate of resolution could
be issued.
In
my considered view, the decision of the first respondent in issuing
the certificate of non-resolution before the condonation
application
had been considered is reviewable in terms of Section 158(1)(g) of
the LRA which is basically a common law ground
of review.
1
It
seems to me that the decision of the commissioner was arrived at
arbitrarily.
2
I
however disagree with the submission by Ms. Chenia that I should
also grant the applicant prayer 2 (i.e. setting aside the referral
form to the CCMA).
It
is my considered view that the applicant will have every right to
raise the validity of the referral form to conciliation in
its
opposition to the condonation application, should the third
respondent pursue the matter and apply for condonation. The
Commissioner tasked with considering the condonation application
will then have to deal with all issues raised including the validity
of the referral form.
In
the event the following order is made:
The
certificate of outcome of the dispute referral for conciliation
under case number GAJB 906/06 dated 14 September 2006 and
issued by
Commissioner E. Hlongwane is reviewed and set aside.
There
is no order as to costs.
______________________
MOLETSANE
AJ
APPEARANCES
For
the Applicant : Attorney Chenia
Instructed
by Glyn Marais Inc.
For
the Third Respondent : Attorney J. Roets
Instructed
by Roets Attorneys
1
See
Hira and Another v Booysen and Another
1992 (4) SA 69
A
2
For
authority on arbitrariness, see
Johannesburg
Stock Exchange and Another v Witwatersrand Nigel Ltd and Another
1988 (3) SA 132
(A).
5