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[2011] ZALCCT 80
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De Villiers v Commission for Conciliation Mediation And Arbitration and Others (C648/08) [2011] ZALCCT 80 (1 June 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
NOT
REPORTABLE
Case
NO: C648/08
In
the matter between:
G
J H (BOB) DE
VILLIERS Applicant
and
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION (CCMA)
1
st
Respondent
COMMISSIONER
STEPHAN CLOETE
2
nd
Respondent
KLAWER
KOOP
WYNKELDERS 3
rd
Respondent
J
U D G M E N T
GUSH.
J
1.
The applicant in this matter applies to
review the ruling by the second respondent refusing the applicant’s
condonation application
for the late referral of his constructive
dismissal dispute to arbitration.
2.
The applicant had been employed by the
third respondent as a senior manager until the date of his
resignation on 22 January 2007.
On 30 November 2006, the
respondent commenced consulting with the applicant concerning its
intention to restructure for operational
reasons. At the time
of his resignation, the applicant was represented by his erstwhile
attorney de Lange. The consultations
had reached the stage where the
parties were discussing a severance package. The applicant tabled a
proposed settlement which the
3
rd
respondent rejected and the 3
rd
respondent’s proposal was likewise rejected by the applicant
whereafter the applicant resigned.
3.
The applicant through his attorney, de
Lange, referred the constructive dismissal dispute to the 1
st
respondent on 21 February 2007. The parties then agreed that it
would serve no purpose for a conciliation meeting to become
convened
and that accordingly, first respondent was requested to issue a
certificate of outcome. The certificate of outcome was
issued on 23
February 2007 which recorded that dispute remained unresolved. It
appears from the papers that de Lange purported
not to have received
the certificate.
4.
Despite
this, on 29 March 2007, de Lange addressed a letter to the first
respondent requesting that the matter be set down for arbitration.
At all times relevant to the 2
nd
respondent’s refusal of the application for condonation, the
applicant maintained that this letter constituted compliance
with the
provisions of the Labour Relations Act (LRA)
[1]
when requesting arbitration. In argument, however, counsel for the
applicant conceded that this request did not comply with the
LRA.
5.
What is clear from the above circumstances
is that there could have been no confusion in the mind of de Lange
that the matter had
been “conciliated” and that by
agreement, a certificate was to be issued and therefore if the matter
was to be arbitrated
a request to that effect in compliance with the
LRA should have been made within 90 days.
6.
On the applicant’s own version, de
Lange did nothing further until 18 September 2007 (some 173 days
later) when he again wrote
to the 1st respondent regarding the
arbitration. The 1
st
respondent replied by email on 24 October 2007 advising de
Lange that no request for arbitration had been received.
7.
This was followed by an exchange of
letters between de Lange and the 1st respondent culminating in de
Lange filing a proper request
for arbitration on 29 January 2008. On
the following day, the 1
st
respondent advised de Lange that the request was out of time and
advising the applicant that an application for condonation should
be
brought. The applicant through the offices of de Lange filed
the condonation application on 6 May 2008 which was considered
and
refused by the 2
nd
respondent on 11 June 2008. It is this decision refusing
condonation that the applicant seeks to review.
8.
The applicant then applied to the 2
nd
respondent for the rescission of his award which application was, for
obvious reasons, unsuccessful.
9.
The applicant then brought this application
on 12 September 2008. This application was filed 13 weeks after
the refusal of
the application for condonation and 6 weeks and 3 days
after the applicant avers he received the outcome of his abortive
rescission
application.
10.
The applicant's application for condonation
filed with the 1
st
respondent is supported by two affidavits. There is a
confirmatory affidavit by the applicant himself in which he confirms
that he has read and understood the contents of de Lange’s
affidavit in so far as it refers to him and that at all times,
de
Lange acted in accordance with his instructions. The paragraph reads
as follows:
“
Ek
bevestig dat ek die eedsverklaring van Riaan de Lange hierin gelees
het en dat die inhoud daarvan insoverre dit op my betrekking
het waar
en korrek is, en dat hy ten alle tye gehandel het op my instruksies
aan hom”
11.
In
so doing the applicant has not only associated himself with de
Lange’s conduct in dealing with the matter but avers that
de
Lange in fact acted on his instructions. It was not the applicant’s
case that he had been prejudiced by a delay caused
his legal
representatives “tardiness or negligence”
[2]
12.
In the application, de Lange applies for
condonation “only if it is found that he was late with his
request” and in
his affidavit suggests that the application is
only necessary due to the fault of the 1
st
respondent and its “gebrekkige administrasie”. In his
affidavit, de Lange refers to the letter addressed to the 1
st
respondent on 29 March 2007 and avers firstly that this constituted a
proper request for arbitration and secondly that accordingly
a
request for arbitration was in fact made timeously viz. within the 90
day period prescribed by the LRA. The affidavit then continues
to
aver that the 1
st
respondent only served the certificate in 2008.
13.
Conspicuous by its absence, however is any
explanation whatsoever regarding the delay of five and a half months
between 29 March
2007 when de Lange averred the proper request for
arbitration was made and 18 September 2007 when de Lange commenced
correspondence
with the 1
st
respondent regarding why the matter had not been enrolled for
arbitration. The 2
nd
respondent refused the condonation application largely due to this
unexplained delay.
14.
De Lange deposed to the founding affidavit
to this application ostensibly on behalf of the applicant. In this
affidavit, the grounds
of review are set out as being that the
decision of the 2
nd
respondent was an “obvious error’ and that the award
should have been rescinded which was not relief the applicant
sought in the notice of motion; and that the 2
nd
respondent “committed serious misconduct” in that “he
had failed to appreciate the facts and documents submitted
by the
applicant in support of the ... condonation application” and
persists with the averment that the request for arbitration
was made
timeously and that the 2
nd
respondent was wrong in holding that the referral was late.
15.
The balance of de Lange’s affidavit
simply sets out the same facts as contained in the condonation
application and the accusations
that the 1
st
respondent was responsible for the debacle due to its bad
administration. The affidavit states that applicant “will
as required by Rule 7A (8) (a) amend add to/or vary the terms of the
Notice of Motion and supplement this affidavit”. The
applicant however elected not to do so.
16.
The applicant’s pleadings do not make
out a case justifying his application to have the award reviewed and
set aside. The
founding affidavit relies only on bare averments
in the affidavit that the conclusions drawn by the applicant have no
basis with
scant reference to either the award or the record.
17.
The
applicants founding affidavit is more in keeping with an appeal
against the refusal of the 2
nd
respondent to grant condonation. In order to succeed with a
review, it must be shown that the decision made by the arbitrator,
or
the second respondent in this matter, is a decision that a reasonable
decision maker could not reach taking into account the
material
placed before him
[3]
. In
order to successfully review the award the applicant is required to
do more than simply make bare averments that the
2
nd
respondent didn’t take into account material before him, that
he made an obvious error and committed misconduct.
18.
I am not satisfied that the applicant has
succeeded in doing so. The averments made in the applicant’s
founding affidavit
are simply statements to the effect that the 2
nd
respondent was wrong in finding that the request for arbitration was
filed late based on the letter of 29 March 2007 and that despite
this
averment that the request was made timeously; that the certificate
was only received in 2008.
19.
The applicant was required to provide an
acceptable and reasonable explanation why the late referral should be
condoned and in particular
to explain the delay between the letters
of 29 March 2007 and 18 September 2007. The applicant clearly
did not do so.
20.
In considering the applicant’s
application, it is also necessary to give consideration to the
applicant’s prospects
of success. The averments made in
the condonation application before the 2
nd
respondent do not support the contention that the applicant had been
constructively dismissed and therefore had good prospects
of success.
The fact was that the parties were still engaged in
retrenchment consultations arising from the respondent’s
decision to restructure when the applicant resigned.
21.
I am, in the circumstances, not satisfied
that the applicant has made out a case justifying the review and the
setting aside of
the 2
nd
respondent’s award refusing the applicant condonation.
22.
Regarding costs there is no reason why
costs should not follow the result. Counsel for the respondent
submitted that I should make
a punitive costs order in light of the
applicant’s persistence in not complying with the time limits.
I do not agree.
23.
Accordingly I make the following order:
The
applicant’s application is dismissed with costs.
Gush
J
Date
of hearing:
10
March 2011
Date
of judgment:
1 June 2011
Appearances:
For
the applicant:
Adv H Loots
Instructed
by:
Kellerman Hendrikse Binedell Attorneys
For
the respondent:
Adv R G L Stelzner SC
Instructed
by:
Faure and Faure Attorneys
[1]
66
of 1995; see Section 136 (1) (b) read with Regulation 11(1) and Rule
18(1) of the Rules for the Conduct of proceedings before
the CCMA.
[2]
2
nd
respondent’s award page 8 of the pleadings.
[3]
Sidumo and
Another v Rustenburg Platinum Mines Ltd & Others
2007 28 ILJ 2405 (CC)