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[2011] ZALCCT 63
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National Union of Mineworkers and Another v Commission for Conciliation Mediation and Arbitration and Others (C249/2010) [2011] ZALCCT 63 (26 May 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
Not
Reportable
Case
no: C249/2010
In
the matter between:
NATIONAL
UNION OF MINE WORKERS
.............................................
First
Applicant
T
MTHOMBENI
....................................................................................
Second
Applicant
and
THE
COMMISSION FOR CONCILIATION, MEDIATION
AND
ARBITRATION
.............................................................................
First
Respondent
K
KOCK N.O.
......................................................................................
Second
Respondent
GOOD
HOPE BRICKS (PTY) LTD t/a CAPE BRICK
........................
Third Respondent
Date
of hearing: 20 April 2011
Date
of judgment: 26 May 2011
JUDGMENT
VAN
VOORE AJ:
The
First Applicant, the National Union of Mineworkers (the union), on
behalf of the Second Applicant, Mr T Mthombeni (Mthombeni)
referred
an alleged unfair dismissal dispute to the First Respondent,
Commission for Conciliation, Mediation and Arbitration
(the CCMA).
The CCMA required the union, on behalf of Mthombeni, to apply for
condonation. Notwithstanding its contention that
it was not
necessary to do so, the union applied for condonation. The Second
Respondent (the commissioner) refused condonation.
This is an
application in terms of section 158(1) (g) of the Labour Relations
Act,
1
(the
LRA) t to review and set aside the commissioner’s decision
refusing condonation. The Application was unopposed.
The
applicants contend that it was not necessary for to apply for
condonation, alternatively, that if it was necessary to do so,
then
condonation ought to have been granted. In the alternative, the
applicants seek an order that the condonation application
be
remitted back to the CCMA for determination by a commissioner other
than the Second Respondent.
Mthombeni
was employed by the Third Respondent (the company) at its Paarden
Island premises. Whilst at work, Mthombeni was required
to undergo a
breatherlyser test and was found to be under the influence of
alcohol. A disciplinary hearing was convened. Mthombeni
disputed the
test results on the basis of alleged unreliability of the testing
device. Following the outcome of the disciplinary
hearing, the
company decided to dismiss Mthombeni. The union, on behalf of
Mthombeni, referred an alleged unfair dismissal dispute
to the CCMA.
The
dispute was referred to the CCMA on 20 April 2009. The
dispute referral form is dated 15 April 2009. In
a letter
dated 24 April 2009, the CCMA informed the union that CCMA
was “unable to process” the alleged
dispute. The stated
reason for this was that the CCMA took the view that the referral
was two days late and that an application
for condonation was
necessary.
The
union took the view that the matter was referred in the time period
prescribed by section 191 the LRA and that accordingly,
no
condonation application was necessary. The union informed the CCMA
of this view in a letter dated 13 May 2009. In
its letter
dated 13 May 2009 the union records the following:
“
The
date of dismissal in this matter is 19 March 2009. This
means that, as per Rule 3(1) (b) the 19 of March has to be
excluded
when counting the thirty day period for dismissal referrals. When
counting from 20 March 2009, the 30
th
day is the 18
th
April 2009.
This is a Saturday. Our view is that this has to be excluded, as per
Rule 3(2). We submit that the 30
th
day is now the next working day following the 18
th
April 2009.
Such next day is Monday, 20 April 2009.
The dispute was referred to the
Respondent and the CCMA on 20 April 2009. We submit that
this was within the thirty day
period within which one has to refer a
dismissal dispute. Therefore we request you to set this matter down
for conciliation.
We trust that you will find the
above to be in order.”
The
record does not contain any written response to the union’s
letter dated 13 May 2009. The union addressed
a further
letter to the CCMA dated 11 September 2009. That letter
refers to ”several telephone conversations”.
It appears
from 11 September 2009 letter and in fact it is contended
by the union that there were telephonic conversations
between it and
the CCMA case management office. The union’s letters and the
telephonic conversations did not have the result
that the CCMA was
moved to schedule conciliation proceedings. The union’s letter
dated 11 September 2009 repeated
its view that the dispute
was referred timeously and that it was not necessary for the union
to apply for condonation. The 11 September 2009
letter
also records the following:
“
You
have promised us several times that you will respond to us in writing
but never did that to date. Our member is suffering as
a result of
the delay by yourselves to set the matter down for a hearing.
We therefore humbly request you
to set this matter down for conciliation or give us your stance in
writing so that we can refer
this matter to our legal department for
consideration.”
Under
section 191 of the LRA the applicants had 30 days to refer the
alleged unfair dismissal dispute to the CCMA. In the matter
of
Latiff
v Donro
2
the
Court, and in relation to the meaning of ‘day’ as
referred to in the LRA, preferred the meaning set out in the
Interpretation of Statutes Act.
3
This
is consistent with other decisions of this Court. It appears that
the commissioner also adopted this approach. On this reckoning,
the
referral was indeed out of time but certainly not by 7 months and 24
days. Mthombeni was dismissed on 17 March 2009. He lodged
an appeal
and the appeal itself was dismissed on 19 March 2009. Though dated
15 April 20009, the dispute referral form was first
served on 20
April 2009. The referral was indeed 2 days late.
On
7 December 2009 the union launched an application for
condonation. The application included an affidavit deposed
to by
Senyatse Desmond Phaladi, a paralegal officer employed by the union.
The condonation application included the union’s
letters to
the CCMA dated 13 May 2009 and 11 September 2009. The
company, by way of opposition, wrote a letter
to the CCMA. That
letter is dated 8 December 2009. In the 8 December 2009
letter the company informs the CCMA that
it intends to oppose the
application for condonation on the following grounds:
Mthombeni was dismissed on
17 March 2009 (not 19 March 2009) and that the
referral to the CCMA was out of
time.
Mthombeni’s claim that
the testing apparatus is unreliable is invalid.
That during the disciplinary
hearing Mthombeni in fact acknowledged guilt and asked for this to
be taken into account.
When the test was carried out
it was carried out in the presence of a witness
.
The chairman of the
disciplinary hearing was not biased
.
The
CCMA then convened a hearing to consider the condonation
application. That hearing took place on 27 January 2009.
The
commissioner considered matters ordinarily relevant to a condonation
application such as the degree of lateness, the explanation
for the
delay, the prospects of success and the prejudice to the parties. In
relation to the length of delay the commissioner
found that the
length of delay was “extreme”. This assessment was
informed by the commissioner’s view that
a “compliant
application” (by which the commissioner meant a referral of an
alleged unfair dismissal dispute) was
first filed with the CCMA on
7 December 2009. In fact at paragraph 7 of the ruling on
condonation, the commissioner
in relation to the length of the delay
determines that “the referral is 07 months and 24 days late”.
Further, and
at paragraph 27 of the ruling, the commissioner makes
the following assessment:
“
27 The
delay in the matter is extreme considering the fact that Applicant
was represented by a union and himself a senior shop steward.
It is
common cause that the CCMA had from the start informed the union
offices, in writing, that condonation was required. The
information
was relayed four days after the initial referral.
…
29 What is more concerning is
that the union took another seven months to actually decide to apply
for condonation. I accept that
the union made written contact with
the CCMA on two occasions but the fact remains that they were
informed about the requirement
for condonation. The time lapse
certainly displays a lack of seriousness in pursuing the matter.”
The
commissioner calculated the length of delay from 7 December 2009,
being the date on which the condonation application was
delivered.
This approach resulted in the commissioner concluding that the
length of delay was 7 months and 24 days. However,
the
commissioner’s approach is not the approach adopted by this
Court in the matter of
Weltevrede
Kwekery (Pty) Ltd v CCMA and Others.
4
In
that matter Pillay J held that:
“…
section
191(2) allows an employee to apply for condonation at any time. Rule
10(2)(c) read with Rule 9(2) merely directs an employee
as to when
and how to file an application for condonation.”
In
relation to section 191 of the LRA, Pillay J in
Weltevrede
Kwekery (Pty) Ltd v CCMA and Others
5
held
that:
“
Section
191(3) provides:
“
The
employee must satisfy the Council or the Commission that a copy of
the referral has been served on the Employer…
Similar wording is used in
section 134(2) of the LRA. The meaning of ‘referral’ that
I distill from these sections is
that it is the document that
initiates the process. In this instance it is the LRA form 7.11.”
An
alleged unfair dismissal dispute was referred to the CCMA on
20 April 2009. The referral form received by the CCMA
on
20 April 2009 initiated the process. The CCMA on receipt of the
dispute referral form took the view that the matter was referred
beyond the 30 day period provided for in section 191 of the LRA. The
CCMA then required that the applicants apply for condonation.
The
requirement that the applicants apply for condonation does not undo
the fact that an alleged dispute was referred to the
CCMA on
20 April 2009. In determining the length of the delay the
commissioner did not properly apply the correct test
in our law. As
a result of the commissioner’s erroneous approach the length
of delay was determined as being 7 months and
24 days. This period
of time was characterised by the commissioner as being “extreme”
and “excessive”
and in the result the commissioner found
that that so “extreme” or “excessive” a
delay outweighed the
other considerations relevant to a condonation
application. In the condonation ruling the commissioner makes the
following further
findings:
“
31 In
the matter between Jayes v Radebe & Others (2003) 24 ILJ 399 (LC)
the Court held that a long delay without adequate reasons
or
explanation for it, outweighs a consideration of the prospects of
success in the circumstances and weighing up all the relevant
factors.
32 I find that the Applicant has
failed to give an adequate or reasonable explanation for the extreme
delay and although this outweighs
a consideration of the prospects of
success, my opinion is that the Applicant’s prospects of
success are questionable. The
Applicant failed to show good cause for
the delay and condonation cannot be granted.”
It
is abundantly clear that the commissioner’s approach to and
assessment of the length of the delay was one of the principal
grounds, if not the principal ground, that informed her decision to
refuse condonation. The commissioner’s erroneous approach
is
inconsistent with the principles of our law and cannot be
countenanced by this Court. In the matter of
Pam
Golding Properties (Pty) Ltd v Erasmus & Others
6
Van
Niekerk J held:
“
If a
commissioner fails to take material evidence into account, or has
regard to evidence that irrelevant, or the commissioner commits
some
other misconduct or gross irregularity during the proceedings under
review including for example, a material mistake of law,
and a party
is likely to be prejudiced as a consequence, the commissioner’s
decision is liable to be set aside…”
The
correct determination of the length of delay was material. The
commissioner failed to properly apply her mind to this important
and
material issue. The erroneous approach adopted by the commissioner
had the result that the applicants did not have a fair
hearing on
the issues to be determined by the commissioner. On that ground
alone the commissioner’s ruling is reviewable
and falls to be
set aside.
In
the circumstances I make the following order:
The
ruling by the Second Respondent is reviewed and set aside.
The
condonation application is referred back to the CCMA for fresh
determination before a commissioner other than the Second
Respondent.
There
is no order as to costs.
_
____________________
VAN
VOORE AJ
Appearances
For
the applicants: Ms T Ralehoko, Cheadle Thompson & Haysom
1
66
of 1995.
2
[2004]
BLLR 1151
(LC).
3
33
of 1957.
4
[2006]
7 BLLR 706
(LC) para 13..
5
Ibid
at para 18.
6
(2010)
31 ILJ 1460 (LC) at para 8.