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[2011] ZALCJHB 125
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Mlambo v Johannesburg Metrobus Services (JR1585/10) [2011] ZALCJHB 125 (16 August 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO
: JR1585/10
DATE
: 2011/08/16
Not reportable
In the matter between
MLAMBO, D
…..................................................................................
Applicant
and
JOHANNESBURG
METROBUS SERVICE
….............................
Respondent
_________________________________________________________
J U D G M E N T
_________________________________________________________
STEENKAMP, J
:
This is an application to review and set aside a condonation ruling
made by the second respondent, Ms Khabo Mamba, a commissioner
of the
South African Local Government Bargaining Council, in which the
commissioner refused to grant condonation for the late filing
of the
applicant's unfair dismissal dispute.
The application was filed more than a year and two months (432 days)
late. This is obviously an extraordinarily excessive delay.
The
reason that the applicant gave for the lateness is that he was
dismissed on 24 February 2009, and he then left it to his trade
union, SAMWU, to lodge an internal appeal against the dismissal. That
appeal had to be lodged within five days.
In his application for condonation, the applicant stated under oath
that he was advised that an appeal had been lodged on his behalf.
However, as the arbitrator pointed out in her ruling, he provided no
proof of such an appeal, nor did he attach a confirmatory
affidavit
from any trade union official. To make matters worse, I was informed
from the Bar today by Mr
Shongwe
that, in fact, no such appeal
had been lodged, contrary to what was stated under oath in the
application for condonation.
The applicant provided no explanation why he, himself, did not follow
up and refer the dispute to the bargaining council when it
became
apparent that his trade union was not assisting him. With regards to
prospects of success, he suggested that he was treated
inconsistently. However, he mentioned only three names of other
workers who had been reinstated, but provides no details of the
charges against them, what they were found guilty of, or any further
details, or, indeed, any confirmatory affidavits.
What is apparent is that the applicant admitted his misconduct, and,
in fact, an organisation that appeared on his behalf at some
stage,
called the R Consultancy, stated in terms that the applicant
"swindled your company", that is Metrobus, "by
pocketing all the money, and use it for his personal use". It is
astounding that a person who is aware of his own dishonesty
and the
fact that he has swindled his employer and stolen from it, still
considers that he has any prospects of success, and that
an
arbitrator should condone the late filing of a dispute that is more
than a year late.
I can find absolutely nothing unreasonable in the arbitrator's
refusal to condone the late filing. She properly considered the
degree of lateness, the reasons therefor, the prospects of success
and the relevant case law, for example, the principles set out
in the
case of
NUM v Council for Mineral Technology
[2002] 23
ILJ
1229 (LAC).
The only question that remains to be determined is that of costs. In
the normal course, the costs in a matter such as this one,
where
there are no prospects on review, should follow the result. I take
into account Mr
Shongwe
's argument
ad hominem
, though,
that the applicant is an individual who has been let down by his
union and who is still unemployed. In those circumstances,
I make the
following order:
1. The application is dismissed.
2. There is no order as to costs.
_________________________
STEENKAMP J
JUDGE OF THE LABOUR COURT
APPEARANCES:
APPLICANT: Attorney IM Shongwe
THIRD RESPONDENT: Adv W Hutchinson
Instructed by Moodie & Robertson