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[2012] ZALCJHB 6
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POPCRU obo Kalipa v Robertson NO and Others (JR 2496/08) [2012] ZALCJHB 6 (19 January 2012)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable/
Not
Reportable
Case No JR 2496/08
In the matter between:
POPCRU obo E KALIPA
…......................................................................................
Applicant
and
J ROBERTSON N.O.
…...............................................................................
First
Respondent
THE MINISTER FOR
SAFETY AND SECURITY
…...............................
Second
Respondent
THE SAFETY AND
SECURITY SECTORAL
BARGAINING COUNCIL
…........................................................................
Third
Respondent
A VAN GROENEUN
….............................................................................
Fourth
Respondent
Heard: 13 December
2011
Delivered: 19 January
2012
Summary: Refusal to
condone the late referral of an unfair labour practice concerning a
promotion dispute to the bargaining council.
Dispute referred late
because the employee wanted to join the arbitration hearing of Mr
Kloppers. Employee represented by a union
who is signatory to the
Dispute Procedure in the bargaining council. Union should have been
alert to the need to refer the dispute
timeously. On the prospects of
success the employee does not aver facts to show that the promotional
appointment was unfair. Condonation
refused.
JUDGMENT
SEEDAT AJ
Background
[1] The applicant seeks
to review and set aside a ruling made by a commissioner of the Safety
and Security Sectoral Bargaining Council
(SSSBC) refusing to condone
the late referral of an unfair labour practice dispute by the
employee.
[2] The employee, a
member of the South African Police Service (SAPS), had applied for a
promotional post, was short listed, interviewed
and was one of five
candidates whose names were submitted to the National Commissioner of
SAPS. The fourth respondent was appointed.
[3] A formal grievance
was lodged by the employee in terms of the internal grievance
procedures of SAPS but no consensus was reached
and a mediation
certificate was issued.
[4] It is common cause
that the internal process was finalised on 27 June 2008 and that is
the date on which the dispute arose.
[5] Pursuant to the
Dispute Procedure for SSSBC to which POPCRU, the trade union
representing the employee, is a signatory, all
disputes must be
referred to the SSSBC within 30 days of the internal grievance
procedure being exhausted. The SSSBC will then
set the matter down
for a ‘joint conciliation and arbitration’.
1
[6] The employee’s
union did not lodge the dispute immediately because the employee
wanted to join in the arbitration of a
Mr Kloppers.
[7] When the union did
refer the dispute on behalf of the employee, it was beyond the
prescribed 30 days and a formal application
for condonation for the
late referral had to be made.
The condonation ruling
[8] On 28 October 2008,
the commissioner refused the application for condonation. He based
his ruling on the grounds of degree of
lateness, the reason for the
delay, prospects of success and the balance of convenience, including
any prejudice to the other party
as categorised in clause 7.2 of the
Dispute Procedure for SSSBC. I will deal with his reasons briefly.
[9] In his application
for condonation, the employee had stated that his referral was 55
days outside the 30-day period. The employer
had accepted this
calculation and so did the commissioner who regarded it as excessive.
[10] As for the
explanation for the late referral, the commissioner emphasised that
the employee was assisted by his union which
should have been aware
of the time constraints and waiting for a fellow employee to join in
the same matter was not an acceptable
reason for the delay in
referring the dispute.
[11] In considering the
prospects of success, the commissioner was initially hesitant to make
a finding but then impliedly accepted
the employer’s submission
that proper procedures were followed by the employer in appointing
the fourth respondent and that
he was the better candidate. The
commissioner added that even if the employee had any prospects of
success, this would be ‘outweighed
by the delay in the referral
of the dispute and the lack of reasons for such delay’.
[12] The commissioner
then concluded that the employer will be prejudiced if condonation is
granted.
Ground for Review
[13] The award was first
challenged on the ground that the delay in referring the dispute, in
the circumstances of the case, was
not excessive.
[14] Secondly, the
applicant asserts that the commissioner discarded the reasons for the
delay on the basis that they were not acceptable
without considering
their reasonableness. And the ‘fact that the employee waited to
be joined [in another arbitration] provides
a reasonable and
acceptable reason why he failed to refer the dispute within the
prescribed time limits’.
[15] Thirdly, ‘the
employee was not required to prove on a balance of probabilities that
he had good prospects of success,
but merely had to allege facts
which, if proven during the subsequent arbitration proceedings, would
have entitled him to the relief
sought’.
[16] Fourthly, the
applicant takes issue with the commissioner making reference to
discrimination and the test of balance of convenience.
[17] Lastly, says the
applicant, the commissioner did not consider the importance of the
case to the employee.
[18] Subsequently, the
applicant amended its notice of motion to read that the requirement
in the Dispute Procedure for the SSSBC
to refer all unfair labour
practice disputes to the SSSBC within 30 days was in conflict with
section 191(1)(b)(ii) of the LRA
which prescribes a period of 90 days
for the referral of an unfair labour practice dispute. However, at
the commencement of the
hearing, Mr Basson, representing the
applicant, abandoned this argument.
An evaluation of the
condonation application
[19] At the hearing, the
parties agreed that the calculation of 55 days was from the date the
dispute arose and that the referral
was, in fact, 22 days out of
time.
[20] While there was a
reference to ‘unfair discrimination’ in the referral
form, the gravamen of the employee’s
complaint was the
promotion of ‘a person who does not meet required requirements
as per external advert’. The issue
of discrimination was not
even alluded to in the application for condonation.
[21] The test of balance
of convenience including prejudice is a factor together with the
degree of lateness, the reasons for lateness
and the prospects of
success which parties in the SSSBC must elaborate on when making an
application for the condonation of a late
referral of a dispute.
2
Indeed, the standard
affidavit in support of application for condonation issued by the
SSSBC has a section labelled ‘prejudice’
for the deponent
to complete. There is no section headed ‘Importance of the
Matter’.
[22] The commissioner can
therefore not be faulted for not making a finding on the claim of
discrimination and weighing the application
on a balance of
convenience in the context of prejudice.
[23] In considering an
application for condonation, one has to be mindful of the advice of
Holmes JA in
Melane
v Santam Insurance Co Ltd
3
that there has to be ‘an
objective
conspectus
of all the facts’.
[24] The only explanation
proffered by the employee for the delay is that he ‘was waiting
for the date of Mr Kloppers arbitration
date so that he can join in
the process’ [sic]. No explanation is given as to who is Mr
Kloppers, what was his dispute about,
why was there a need for the
employee to wait for the arbitration date for Mr Kloppers, why would
he want to join the arbitration
and, most importantly, why did the
employee not join Mr Kloppers but instead elected to refer the
dispute himself.
[25] Conradie AJ in
Independent
Municipal & Allied Trade Union obo Zungu v SA Local Government
Bargaining Council & others
4
averred:
‘
In
explaining the reason for the delay it is necessary for the party
seeking condonation to fully explain the reason for the delay
in
order for the court to be in a proper position to assess whether or
not the explanation is a good one’
[26] The applicant union
was at all times representing the employee and therefore ought to
have been aware of the time frames. More
tellingly,
because it is a signatory
to the Dispute Procedure for the SSSBC,
the
union should have been vigilant and fastidious in lodging the dispute
timeously.
5
[27] This explanation for
the delay is vague and unsatisfactory
6
and certainly not
acceptable or for that matter, reasonable.
[28] Condonation will
generally not be granted in the absence of an acceptable explanation
for the delay,
7
regardless of the good
prospects of success on the merits.
8
[29] In
Moila
v Shai NO,
9
Zondo JP (as he then was)
confirmed the principle that where ‘no explanation has been
given for the delay or an “explanation”
has been given
but such “explanation” amounts to no explanation at all,
I do not think that it is necessary to consider
the prospects of
success’.
[30] LaGrange AJ (as he
then was) in
Carter
v Commission for Conciliation Mediation & Arbitration and
Others,
10
wrote:
‘
[I]n the
light of current jurisprudence, it seems that in condonation
applications where the explanation for one or more significant
periods of delay is absent or completely inadequate this may
constitute a sufficient reason for refusing condonation, but even
in
such instances, adjudicators in exercising their discretion are not
precluded from still considering the prospects of success.’
[31] I would be inclined
to dismiss the application for review without even deliberating the
prospects of success. However, it may
be educative to look at the
prospects of success to establish whether the commissioner’s
reasoning is reviewable on that
basis.
[32] The employee makes a
bald allegation that the fourth respondent ‘did not meet the
requirements’ of the employer.
On Mr Basson’s own
argument, the employee ‘had to allege facts which, if proven
during the subsequent arbitration proceedings,
would have entitled
him to the relief sought’. The employee sets out his compliance
with the requirements for the post but
does not allege any facts
showing the deficiency, either procedurally or on the merits, of the
promotion of the fourth respondent.
Of course, it is axiomatic that
an unfair labour practice must be unfair. This may be stating the
obvious but the employee fails
to set out any
prima facie
grounds of unfairness.
[33] While the reasons
given by the commissioner for discounting the prospects of success
may not be a model of clarity, they are,
nonetheless, supportive of
his finding.
[34] In the premises the
application to review and set aside the arbitration award issued by
the first respondent under case number
PSSS 236-08/09 is dismissed
with costs.
______________________
SEEDAT AJ
APPEARANCES:
FOR THE APPLICANT:
Advocate JL Basson
Instructed By: Grosskopt
Attorneys (Pretoria)
FOR THE RESPONDENT:
Attorney M Kgatla
For The State Attorneys
(Pretoria)
1
clause
3.1(c) read with clause 3.5.1(b)
2
clause
7.2
3
1962
(4) SA 531
(A) at 532C-F.
4
(2010)
31 ILJ 1413 (LC) para 13
5
See
Independent Municipal & Allied Trade Union on behalf of Zungu
v SA Local Government Bargaining Council
(2010) 31 ILJ 1413 (LC)
para 25
6
See
SA Broadcasting corporation Ltd v Commission for conciliation,
mediation & Arbitration & others
(2010) 31 ILJ 592 (LAC)
7
Nampak
Corrugated Wadeville v Khoza
(1999) 20 ILJ 578 (LAC);
Mziya v
Putco Ltd
[2002] ZACC 30
;
[1999] 2 BLLR 103
(LAC);
Waverley Blankets Ltd v
Ndima and Others
(1999) 20 ILJ 2564 (LAC)
8
NEHAWU
obo Mofekeng and Others v Charlotte Theron Children’s Home
(2003) 24 ILJ 1572 (LC);
NUM
v Council for Mineral Technology
[1999] 3
BLLR 209
(LAC).
9
(2007)
28 ILJ 1028 (LAC) at para 34.
10
(2010)
31 ILJ 2876 (LC) at para 29.