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[2011] ZALCJHB 80
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Mduli v Vodacom (Pty) Ltd (JS 263/2009) [2011] ZALCJHB 80 (13 September 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
Case No: JS 263/2009
In the matter between
MANDLA ALFRED MDULI
…........................................................................................
Applicant
And
VODACOM (PTY) Ltd
…...............................................................................................
Respondent
JUDGMENT
SHAIK AJ
Introduction
The Applicant seeks leave to appeal
against my judgement dated 16 November 2010.
In my judgement, I made the following
orders:
The application for condonation is
refused.
There is no order as to costs.
The Test
In considering the ruling on
condonation the decision not to grant it is a matter that falls
within the court’s discretion.
The decision in this regard is
not appealable on the basis that another court could reasonably
differ.
In NUMSA v FIBRE FLAIR cc t/a KANGO
CANOPIES (2000) 21 ILJ 1079 [LAC] 1081 G-1082A the Labour Appeal
Court laid down the applicable
test. It is whether or not it can be
said that, in exercising its discretion, the court a quo did so
“capriciously, or upon
a wrong principle, or in a biased
manner, or for insubstantial reasons, or committed a misdirection or
irregularity, or failed
to exercise discretion or exercised it
improperly or unfairly.”
This test was followed by the LAC in
Coates Bros Ltd v Shanker and Ors (2003) 24 ILJ 2284 [LAC] where it
was also pointed out
that a simple misdirection is insufficient-
“the misdirection must be of such a nature, degree or
seriousness that shows
that the court did not exercise its
discretion at all, or exercised it improperly or unreasonably”
Grounds of Appeal
The Applicant seeks leave to appeal
and the application rests on the submission that certain legal and
factual errors were made
which informed the judgment.
To amplify, it is stated in the Heads
of Argument that :
“
The main
ground of law, which gives rise to all other grounds of appeal, is
that, as a matter of law, neither the rules of court
nor the
provisions of the Labour Relations Act (the LRA) specify the time
period within which a matter must be brought to the Labour
Court
following a ruling of no-jurisdiction by the CCMA.”
It is submitted that the following
error in law was made:
“
The
erroneous finding implied by the learned judge is not that the
application was not brought within a reasonable time after the
CCMA
referral to Court, but that it was brought later than the 90 day
period prescribed in relation to cases referred in the normal
course
of events.”
I understand this argument to imply
that it is not the ninety (90) day period referred to in section 191
(11) (a) which is relevant
and applicable in the consideration of
the timeframe for the referral of the dispute to the Labour Court.
Instead, the submission is made that
there is no prescribed timeframe and in the circumstance, it would
suffice if a referral was
made within a “reasonable time.”
The Applicant was obliged to comply
with the provisions of Section 191 (11) (a) but failed to do so.
However, and as provided
for in section 191 (11) (b), the Court may
condone non-observance of that timeframe on good cause shown.
An applicant for condonation is
required to give a full and satisfactory explanation of whatever
delays have occurred. The fact
that non-compliance is the result of
legal advice, is not a sufficient and satisfactory explanation. In
this matter , the applicant
persist with the view that legal advice
was received and was relied on, and that such advice was correct.
The explanation, informed by legal
advice, proffered by the Applicant in the application for
condonation is that the Act does
not provide for a time period –
in the particular circumstance- is no explanation at all.
The dicta in Vorster v Rednave
Enterprises CC t/a Cash Converters [2008] 10 BLLR (LC) was pressed
into service to support this
argument and in particular the comments
made by Basson J to be found on page 1114 C paragraph 4:
“
There is no
provision in the LRA which prescribes the time period within which a
referring party must refer her statement of claim
to the Labour Court
once the commissioner at arbitration rules that it does not have
jurisdiction to adjudicate the dispute and
that the dispute must be
referred to the Labour Court”
This no more than an observation made.
However, this observation, is used to give credence to the submission
that “as a matter
of law, neither the rules of court nor the
provisions of the Labour Relations Act specify the time period within
which a matter
must be brought to the Labour Court following a ruling
of no-jurisdiction by the CCMA.”
This submission is the product of
muddled reasoning. It betrays a failure to properly analyse the
cause of action, appreciate
the difference and distinction between
adjudication and arbitration, and fails to differentiate between the
jurisdiction of the
Labour Court and the Commission for
Conciliation, Mediation and Arbitration.
This submission simply ignores a good
many provisions of the Act and must for that reason be rejected.
The Act
The relevant provisions of the Labour
Relations Act are the following:
Section 187 (1)
:
A dismissal is automatically unfair if
the employer, in dismissing the employee, acts contrary to section 5,
or if the reason for
the dismissal is-
(f) that the employer unfairly
discriminated against an employee, directly or indirectly, on any
arbitrary ground, including, but
not limited to race, gender, sex,
ethnic or social origin, colour, sexual orientation, age disability,
religion, conscience, belief,
political opinion, culture, language,
marital status or family responsibility.
Section 191 (5)
:
If a council or a commissioner has
certified that the dispute remains unresolved, or if 30 days have
expired since the council or
the Commission received the referral and
the dispute remains unresolved-
Section 191 (5) (b)
:
The employee may refer the dispute to
the labour court for adjudication if the employee has alleged that
the reason for dismissal
is-
automatically unfair;
Section 191 (11) (a)
:
The referral, in terms of subsection
(5) (b), of a dispute to the Labour Court for adjudication, must be
made within 90 days after
the council or (as the case may be) the
commissioner has certified that the dispute remains unresolved.
Section 191 (11) (b)
:
However, the Labour Court may condone
non-observance of that timeframe on good cause shown.
Section 191(13)
:
An employee may refer a dispute
concerning an alleged unfair labour practice to the Labour Court for
adjudication if the employee
has alleged that the employee has been
subjected to an occupational detriment by the employer in
contravention of section 3 of
the Protected disclosures Act 2000,
for having made a protected disclosure defined in that Act.
A referral in terms of paragraph (a)
is deemed to be made in terms of section subsection (5) (b).
Application of the Act
As the Applicant alleged that he
suffered unfair discrimination and secondly, occupational detriment,
the dispute, ought to have
been referred to the Labour Court for
adjudication
in accordance with section 191 (5) (b). And then
too, within 90 days of the dispute having been certified as
unresolved, in accordance
with section 191 (11) (a).
Rather than refer the dispute to the
Labour Court for adjudication, the employee applied for and referred
the dispute to the Commission
for
arbitration.
It is this act,
that was to give rise to the comedy of errors to follow.
The Applicant contends that the
referral to the Labour Court is occasioned by, and “is in
accordance with the arbitration
ruling dated 9 December 2008, which
is not governed by any timeframe as long as it can be done within a
reasonable time.”
The arbitration ruling refers to the
matter thus:
“
It is
apparent from the arguments advanced by the applicant in his opening
statement that the Labour court has jurisdiction and
that the CCMA
cannot proceed to hear the merits in the absence of written consent
in writing by all parties in terms of section
133 (2) (b) of the LRA.
This being the case, the CCMA does not have jurisdiction to determine
the dispute and it is left to the
applicant to refer the dispute to
the Labour Court” Per Commissioner PJ van der Merwe.
The arbitration
ruling
, is not
the cause of action or cause for the referral to the Labour Court.
The referral to the Labour Court is necessitated by
the
allegations
of the employee to the effect that he suffered occupational detriment
and unfair discrimination.
These matters, occupational detriment
and unfair discrimination, may be the subject of an
adjudication
and are not matters that may be the subject of an
arbitration
.
The employee, ought not to have applied for or referred the dispute
for arbitration. This was a fatal error.
The Commissioner, by this ruling, is
not directing or effecting a referral to the Labour Court. The
Commissioner is merely stating
that the Commission does not have
jurisdiction to deal with the matter. The Applicant cannot read into
this ruling a vague and
nebulous notion that he refers the matter to
Labour Court in simple compliance with the ruling and for that reason
fail to acknowledge
that firstly, a delay in the referral occurred
and secondly, give a full and complete explanation in support of the
application
for condonation.
The referral to the Labour Court
ought to have occurred within 90 days of the issue of the
certificate of non resolution. At any
rate, if the referral was not
made within 90 days as stipulated by section 191 (11) (a), the
Labour Court may condone non-observance
of
that
timeframe, on
good cause shown, in terms of section 191 (11) (b).
The fact that the dispute was referred
for arbitration and, erroneously so, is not in and of itself
destructive to a referral to
the Labour Court. All that which was
required of the Applicant was to make an application for condonation
at the time the matter
was referred to the Labour Court and cite the
fact that the matter was referred in error for arbitration which
resulted in the
delay suffered.
The Applicant refused to make an
application for condonation despite the request made by the
Respondent and only did so, and then
too belatedly, after an order
was made to that effect. It was his duty to apply for condonation as
soon as possible. The delay,
was wilful. The fact that it was
informed by bad legal advice is not a good and sufficient
explanation.
There is no reference to a time limit
following on a non-jurisdiction ruling or the most obvious reason:
the matter ought not
to have been referred for arbitration to the
Commission. The Commission has no jurisdiction on these matters.
The Act stipulates in section 191 (5)
(b) and 191 (13) (a) that matters arising from an allegations of
unfair discrimination and
occupational detriment must be the subject
of adjudication by the Labour Court.
Indeed, the Act does not provide for
a time period - “ once the commissioner at arbitration rules
that it does not have
jurisdiction to adjudicate the dispute and
that the dispute must be referred to the Labour Court ” –
and it is absurd
to expect such a time period to feature in the Act.
Basson J in Vorster did no more than state the obvious.
The Act stipulates that matters
relating to unfair discrimination and occupational detriment are to
be determined by adjudication
and by the Labour Court. It is an
error made by the employee, to refer such matters, for determination
by means of arbitration
to the Commission.
The employee in his Founding
Affidavit ad paragraph 16 stated:
“
The
arbitration ruling specifically stated that I may refer the dispute
to the Labour Court as the CCMA had no jurisdiction to hear
the
dispute in the absence of written consent from both parties.”
And in paragraph 17 the following
allegation is made:
“
I have
issued my statement of claim in this Honourable Court on the basis of
an arbitration ruling dated 9 December 2008, together
with the
incorrect legal advices that I received from my previous and current
legal representation”
The arbitration ruling, is not, and
cannot be, the basis for the referral of the matter to the Labour
Court. It is not, so to speak,
the cause of action. The cause of
action remains the allegations made by the employee that he suffered
unfair discrimination and
occupational detriment.
The arbitration ruling merely records
the lack of jurisdiction and draws attention to the fact that the
allegations ought to be
the subject of adjudication by the Labour
Court. The ruling is not a directive for the matter to be heard by
the Labour Court.
In the Heads of Argument for Leave to
Appeal, it is said that the comments of Basson J quoted above,
formed “the kernel
of the legal advice received, and
reasonably relied on, by the Applicant. It is respectfully submitted
that the advice was not
incorrect.”
The advice given was indeed incorrect
and patently so. The arbitration ruling and the in- passing comments
of Judge Basson are not
authorities to be relied on for the non
compliance with Section 191 (11) (5).
But even so, it was open to the
employee, to apply for condonation and show good cause in support of
such an application. Apart
from plumbing the Vorster dicta, the
Applicant did not address the issue of the unreasonableness of the
delay or the cogency
of the explanation for the different periods
that are relevant.
“
Provisional
Jurisdiction”
The argument of “provisional
jurisdiction” has no relevance in the consideration of an
application for condonation.
Credibility Finding
It is contended that I had committed
a “major error” by accepting “ without any
evidence having been led, that
the (true) reason why the applicant
was dismissed was the untested ipse dixit of the employer. It is not
proper for the Court
to make such a credibility finding merely on
the papers”
This is an erroneous interpretation of
the judgment. I did not accept the truth of the statement and there
is nothing in the judgment
to suggest that I did. I merely recorded
the stated reason for the dismissal proffered by the employer.
Factual Misdirections
It is submitted that a large number of
misdirections of fact are to be found in the judgment. This
submission is without merit.
Fact: categorisation of dispute:
misconduct
The certificate of outcome dated 22
nd
August 2008, refers and categories the dispute as one concerning
“unfair dismissal” and relates to “misconduct”.
See MM 11. This is not an error.
Fact: changing of the basis of the
dispute
The first time that the Applicant
explained the circumstance of his dismissal before a Commissioner is
at the Conciliation hearing.
And, the second time he did so before a
Commissioner was the Arbitration hearing. Arising out of the first
explanation at Conciliation,
the Commissioner issued the Certificate
of Outcome and therein categorised the dispute as “misconduct”
on the basis
of the explanation given by the employee.
The Applicant did not at conciliation
then and there say he suffered “unfair discrimination”
and or “occupational
detriment” and if he had done so,
the Commissioner would have cited that reason and then –by way
of advice - mark that
the dispute be referred to the Labour Court in
the certificate of outcome.
To say that the employee changed the
basis of the dispute is not an error; he did indeed change the basis
of the dispute at the
arbitration hearing.
Fact: racial discrimination raised
at arbitration
If the allegation of racial
discrimination “predated even the referral of the matter to
the CCMA” as mentioned in
the Heads, it would have featured in
the referral of the dispute to the CCMA and again in the certificate
of outcome. This allegation
does not find expression in the
certificate of outcome. There is no allegation made by the Applicant
that the certificate of
outcome is defective or erroneous in the
categorisation of the dispute. Thus, I am obliged to accept the
certificate of outcome
to be true and correct in every respect.
It is submitted in the Heads, that
the reason for the dismissal is “unknown”. See paragraph
23. If the reason was
“unknown” then the submission that
the dismissal was on account of “racial discrimination”
or having
made a “protected disclosure” cannot be
correct. These submissions are mutually destructive.
The only reasonable inference to be
drawn was that these allegations were not made when the matter
served before the Commissioner
for Conciliation. Thus, this too, is
not an error but the only reasonable inference to be drawn from the
facts.
To find otherwise, I must set aside
the certificate of outcome.
Fact: Method of computation
It is not clear to me what is the
error in computation of the dies that was made and, what is the
correct fact and where might
that fact be found in the papers. At
any rate, there is no obvious and apparent error.
Conclusion
I am satisfied that I properly
considered all the relevant factors in exercising the judicial
discretion not to grant condonation.
I had regard to the degree of
lateness, the cogency of the explanation and the prospects of
success.
I concluded that the delays were
unreasonable, the explanations insufficient and unsatisfactory. The
prospects of success were
so very weak and it would serve no purpose
to grant condonation. I am of the view that there is no reasonable
prospect that another
court would come to a different finding.
The application for leave to appeal
is dismissed with costs.
SHAIK
AJ
Date: 13 September 2011
For the Applicant: Adv. DC Mpofu
Instructed by Mogoboya Dooling &
Associates
For the Respondent: A.I.S Reddings SC
Instructed by Edward Nathan
Sonnenbergs
13