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[2011] ZALCD 29
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Sibiya v Mhlathuze Water Board (D 595/09) [2011] ZALCD 29 (30 September 2011)
REDDY AJ
1
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
Not reportable
CASE NO. D 595/09
In
the matter between:
MFANAFUTHI
SIBIYA
............................................................................................
Applicant
and
MHLATHUZE
WATER BOARD
.........................................................................
Respondent
Date of Hearing: 25 AUGUST 2011
Date of Judgment: 30 SEPTEMBER 2011
______________________________________________________________________
JUDGMENT
REDDY AJ
Introduction
[1] This is an application for
condonation for the late delivery of the applicant’s (the
“employee”) statement
of case. The employee also seeks
costs in the event of the application being opposed. The application
is opposed by the respondent
(the “employer”).
Factual Background
[2] The employee was employed as a
human resources manager until his dismissal. The charges he faced can
be summarised as follows:
1. Representing a fellow employee, Mr
Sithole (Sithole) who was at that time the CEO, at a disciplinary
hearing when the employee’s
employment as a human resources
manager and his status as a member of the executive committee of the
employer precluded him from
doing so;
2. In representing Sithole, the
employee was in breach of his fiduciary duty to act in the best
interests of the employer;
3. Gross negligence in that the
employee authorised full payment to a service provider when the
services were incomplete.
[3] This dispute was referred to the
CCMA for arbitration. The arbitration hearing was set down for 7 July
2009. The employer raised
a jurisdictional point in respect of
charges 1 and 2 at the arbitration hearing on 7 July 2009. It was
submitted by the employer
that the Labour Court had jurisdiction to
hear the matter as these charges related to an automatically unfair
dismissal. Agreement
between the parties (that the employee abandons
the relief applicable to automatically unfair dismissals and only
claim relief
for an unfair dismissal) could not be reached. The
entire matter was then referred to this Court.
Condonation
The delay
[4] Following the dismissal, the
employee referred an unfair dismissal dispute to the CCMA. A
conciliation hearing was held and
a certificate of outcome recording
the non-resolution of the dispute was issued on 15 April 2009. The
statement of case was due
on or before 15 July 2009. It was served on
5 October 2009 and filed on 7 October 2009.
[5] The application for condonation
was filed in July 2010 – nine months after the statement of
case was delivered.
[6] The employee’s
representative submitted that the delay in respect of the statement
of case is either two days or three
months depending on the
interpretation of the LRA provisions adopted by the Court.
[7] The submission that it was
delivered two days late is premised on the reasoning that the CCMA
was seized with the matter until
7 July 2009 and there is no
provision in the LRA for the time limits within which to refer a
dispute to the Labour Court once the
CCMA rules that it does not have
jurisdiction to hear the matter. In such circumstances, the
employee’s representative submitted,
the referral to the Labour
Court must be made within a reasonable time. It was further submitted
that section 191 (11) (a) of the
Labour Relations Act (LRA)
1
does not apply to these circumstances.
[8] The employer disagreed with this
submission and contended that section 191 (5) and (11) of the LRA
applies, that is that the
referral to this Court was due 90 days
after the matter was certified as unresolved.
[9] In the matter of
Vorster
v Rednave Enterprises CC t/a Cash Converters Queenswood,
2
the employee had referred an
automatically unfair dismissal dispute to the CCMA. The referral to
conciliation recorded the dismissal
as being related to the
employee’s pregnancy. The certificate of outcome recorded that
the dispute must be referred to arbitration.
The matter was
accordingly referred to arbitration and the employer raised a
point
in limine
that
the CCMA lacked jurisdiction. A ruling was issued confirming the
CCMA’s lack of jurisdiction and the referral to the
Labour
Court was lodged shortly after three months had expired. The Court
per Basson J held that
“
Although
no specific time period is prescribed by the LRA in terms of which a
dispute must be referred to the Labour Court after
a ruling was
issued by the CCMA at arbitration, it is trite that the LRA is
premised on the principle of the speedy resolution
of disputes and
that all parties to a dispute are required to play their respective
parts in ensuring compliance with this underlying
principle of the
LRA… It is also trite that where the LRA does not prescribe a
specific time period within which a step
in the proceedings must be
taken, a party to the dispute must take such a step within a
reasonable time.”
[10] The Court in the
Vorster
case further held that the referral to the Labour Court was made
within a reasonable time and condonation was granted.
[11] In this matter, a written ruling
by the CCMA was not issued. Rather when the issue of the CCMA’s
jurisdiction was raised
in July 2009, a discussion ensued between the
parties and the commissioner and it would appear that the
commissioner agreed that
the matter must be referred to this Court.
The employee submits he understood that he had 90 days from that date
to refer the matter
to this Court, which he did in October 2009.
[12] In referring his dispute to
conciliation, the employee described the dispute as one pertaining to
his representing a fellow
employee and the discrimination that
followed in dismissing him as a result of such representation. The
description is clearly
that of an automatically unfair dismissal in
terms of sections 5 and 187 of the LRA. The certificate of
non-resolution defines
the dispute as a dismissal and records an
arbitration hearing as the next step.
[13] The description of the dispute by
the employee is at odds with the next step to be taken as recorded in
the certificate. However
for the purposes of further litigation, that
anomaly is irrelevant. In terms of section 135(5) (a) of the LRA, the
certificate
that the commissioner is obliged to issue only requires a
statement that the dispute remains unresolved. The remaining content
of the certificate is irrelevant to the future conduct of the
proceedings. The forum for the further litigation of the matter is
determined by the description of the dispute by the employee (See
NUMSA and Others v Driveline
Technologies SA (Pty) Ltd and Another.
3
.)
As the employee described the dispute as an automatically unfair
dispute the matter should have been referred to the Labour Court
in
terms of section 191 (11) (a) of the LRA.
[14] Section 191 (11) (a) provides
that a referral of a dispute to the Labour Court for adjudication
must
be
made within 90 days of the dispute being certified as unresolved.
That is the time limit that applies.
[15] Should the time limit not be
complied with, the Labour Court may condone, on good cause shown, any
non-observance of the time
limits in terms of section 191 (11)(b) of
the LRA.
[16] The dispute ought to have been
referred to the Labour Court in accordance with the employee’s
description thereof. For
the above reasons, I disagree with the
judgement in the
Vorster
matter. The referral to the Labour
Court is accordingly three months late.
Explanation for the delay
[17] In addition to those reasons set
out above further grounds were submitted on behalf of the employee
explaining the delay. .
[18] The employee was unrepresented
until his application for condonation for the late filing of the
statement of case was lodged.
He is a lay person. He accordingly did
not appreciate the import of the various provisions of the LRA
referred to above and took
the certificate of outcome at face value.
He referred the dispute to arbitration. This step, although
incorrect, is a reasonable
explanation for some of the delay.
[19] The employer submits that it
advised the employee on 7 July 2009 that he would have to apply for
condonation when referring
the matter to this Court. The statement of
case was only delivered in October 2009 and the application for
condonation was delivered
in July 2010, a year after being so
advised.
[20] I accept as a reasonable
explanation the mistaken belief that the employee operated under in
understanding that the referral
to this Court was only due 90 days
after the CCMA sitting in July 2009.
[21] On receipt of the statement of
case and on 14 October 2009, the employer wrote to the employee
requesting a condonation application
for the late filing of the
statement of case. The employee replied to that letter disputing that
condonation was necessary as he
was advised by the Labour Court that
the
dies
only ran from 7 July 2009, when the CCMA confirmed
that it did not have jurisdiction to hear the matter.
[22] Clearly the advice from, I assume
the general office of the Labour Court was incorrect. I accept that
the employee, being unrepresented,
accepted this advice as correct. I
also accept that the employee subjectively was not in position to
accept advice from the employer
as they were adversaries.
[23] The statement of case was drafted
by the employee. He only acquired legal representation prior to the
lodging of the application
for condonation in July 2010. The
immediate result of the legal representation was the lodging of the
application for condonation.
I accept as reasonable that the employee
was mistaken in his understanding of the time limits. He acted in
accordance with his
mistaken understanding and delivered the
statement of case approximately 90 days from the CCMA sitting in July
2009. This mistaken
understanding was further cemented by the
“advice” from the “Labour Court”. It is also
clear that once
he received advice from his own legal
representatives, he lodged the required application for condonation.
[24] The employer also failed to file
its response to the statement of case within the applicable time
limits. This resulted in
this Court setting the matter down for
default judgement on the unopposed roll on 5 February 2010. The
employer attended the hearing
but prior thereto filed a response to
the statement of case. The employee did not attend Court on 5
February 2010. This resulted
in the matter being struck from the roll
and the employee was directed to file an application for condonation.
[25] The employee submitted that he
did not receive the notice of set down for 5 February 2010 and
accordingly did not attend Court
on that day. The employee did not
receive a copy of the Court order. These averments have not been
challenged by the employer and
I accept them as undisputed.
[26] I accept the
bona fides
of
the employee’s explanation that he believed that the statement
of case was only due 90 days from 7 July 2009. The statement
of case
was delivered within this mistaken time limit.
[27] As stated above, the application
for condonation was delivered approximately nine months after the
delivery of the statement
of case. Although a separate application
for condonation was not delivered by the employee, this issue was
raised by the employer
in argument. In order not to delay the
proceedings any further by adjourning it for a further application
for condonation to be
delivered both parties were given leave to
address the Court on this issue.
[28] It is trite that the application
for condonation must be lodged at the time that the party is aware
that it is due. It was
submitted by the employee’s
representative that the employee only became aware of this when he
engaged legal representatives
and was advised of the applicable time
limits. The application for condonation was accordingly lodged in
July 2010. The employee
ought to have taken steps earlier than July
2010 to verify whether condonation was indeed necessary. Although
this explanation
for the delay in applying for condonation is not as
satisfactory as the explanations for the other periods of delay, I
exercise
a wide discretion in determining this application. I am
persuaded that it is justiciable to exercise this discretion in
favour
of the employee insofar as the explanation is concerned. To
close the door to the employee for want of a more satisfactory
explanation
for the late filing of an application for
condonation,would be to bar him from having his matter heard in its
entirety. This would
be a grave injustice. There are important legal
issues that require determination by the trial court. The explanation
is accordingly
accepted.
Prospects of success
[29] As stated above the employee
faced three charges, two of which could result in the dismissal being
declared automatically unfair.
[30] It was submitted by the
employer’s representative that the right to be represented at a
disciplinary hearing does not
carry with it the corollary that the
person representing an employee is granted protection from dismissal
or discrimination. It
was further submitted that only unions have
this right. I disagree with these submissions.
[31] Firstly, if the protection
against discrimination or dismissal of the representative employee is
not available to that employee
then the dismissal would merely be
unfair and not automatically unfair. Such a submission flies in the
face of the employer’s
insistence that the Labour Court hears
the dismissal dispute as it fell within the realm of an automatically
unfair dismissal.
[32] Secondly, it makes no sense
whatsoever for an employee to be guaranteed the right to
representation without the representative
employee being guaranteed
protection from discrimination or dismissal for enabling the exercise
of that right. Not to protect the
representative employee from
discrimination or dismissal would render the right to representation
at disciplinary hearings nugatory
as no employee would logically want
to risk his employment by representing a fellow employee.
[33] The trial court will be best
placed to decide this issue of law according to the parties’
interpretations of the various
sections in the LRA and any evidence
that may be used in support thereof.
[34] I do not intend burdening this
judgement with the detail of the various allegations in respect of
the various charges, save
to state that I am satisfied that the
further allegations in respect of charges one and two, and the charge
in respect of the over
payment to the service provider, require
evidence to be led and require the trial court’s decision.
There are various factual
issues which are disputed and the employee
has prospects of success in defending these charges against him.
Prejudice
[35] It is apparent that the employee
did not wilfully delay in referring the matter to this Court. He
operated under a mistaken
belief. Any relief that may be due to him
can be tempered to minimise any prejudice the employer may have
suffered as a result
of the delay in prosecuting this matter.
[36] The employer suggested that
witnesses’ memories fade with time. There is no detail in the
opposing affidavit as to which
of the witnesses have forgotten the
issues or the facts of the matter. I am not persuaded that the
employer’s witnesses will
not recall any of the factual issues
required for the employer to establish that the dismissal was fair.
[37] Even if this is so, there must be
a recording of the disciplinary proceedings or notes from the
representatives who were involved
in the matter which can be used to
assist those witnesses whose memories may have faded.
[38] The employee on the other hand
will be severely prejudiced should this matter not go to trial. His
right to not be unfairly
dismissed will not have been ventilated.
Importance of the matter
[39] This matter has important issues
that must be decided by the trial court.
Prima facie,
the
following issues, which may fall to be decided by the trial court,
are critical to the right to representation provided in the
LRA:
1. what protection does that right
carry insofar as the representing employee is concerned;
2. whether employers retain the
prerogative to disallow certain categories of employees from
representing fellow employees when
the LRA is silent on this issue.
It is in the public interest that the
matter be heard. Having considered those principles enunciated in
Melane v Santam Insurance Co
Ltd
4
and the facts before me, I am
persuaded that condonation should be granted.
Costs
[40] I am persuaded that the employer
was entitled to oppose the application. Having considered the issues,
I am of the view that
the interests of justice and fairness dictate
that the employee pay the taxed costs of the employer. I accordingly
make the following
order:
1. The application for condonation for
the late filing of the statement of case is granted;
2. The late delivery of the
application for condonation is condoned;
3. The applicant is to pay the taxed
costs of the respondent. .
_______________
Reddy AJ
Appearances:
1. For the applicant: Mr Ungerer
instructed by Siza Khumalo Attorneys
2. For the respondent: Ms Nel
instructed by Truter James de Ridder Attorneys
1
66
of 1995.
2
[2008] ZALC 101
;
[2008]
11 BLLR 1111
(LC) at para 4.
3
(2000)
21 ILJ 142 (LAC) at para 9.
4
1962
(4) SA 531
(AD).