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[2012] ZALCJHB 73
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Oosthuizen v Imperial Logistics CC and Others (JR3248/10) [2012] ZALCJHB 73; (2013) 34 ILJ 683 (LC) (25 July 2012)
9
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
JR3248/10
In the matter between:
LINDA PENDORA OOSTHUIZEN
…..........................................................
Applicant
and
IMPERIAL LOGISTICS CC
…........................................................
First
Respondent
COMMISSIONER BERNARD VAN ECK
…..............................
Second
Respondent
THE NATIONAL BARGAINING COUNCIL
FOR THE ROAD FREIGHT INDUSTRY
…...................................
Third
Respondent
Heard: 27 June 2012
Delivered: 25 July 2012
Summary: Review application; Employee
failing to sign referral form, effect of; Ratification of referral
not established by subsequent
conduct; Commissioner correctly
refusing to grant condonation where no reasonable explanation for the
length delay in filing complaint
referral
JUDGMENT
WHYTE AJ
Introduction
In this matter, the Applicant seeks
to review and set aside the condonation ruling made against her by
the Second Respondent acting
in his capacity as panelist of the
Third Respondent bargaining council. The application is opposed by
the first Respondent.
I am also faced with two
interlocutory condonation applications in these proceedings, one
brought by the Applicant and the other
by first Respondent. I have
decided to grant these two applications.
Background
On 1 October 2009, the Applicant was
subjected to a disciplinary hearing and found guilty of various
charges relating to,
inter alia
, gross negligence. The
chairperson of the hearing found that she should be dismissed.
The Applicant lodged an internal
appeal, but effectively abandoned it on 9 October 2009 by referring
an alleged unfair dismissal
dispute to the CCMA.
The Applicant completed CCMA Form
7.11 with the assistance of a certain Gerald Nkoana who is employed
by Legalwise, a legal insurer.
Neither the Applicant nor Mr Koana
signed the referral form. In all other respects, the form was filled
in appropriately for
a claim of alleged unfair dismissal.
It transpired that the CCMA lacked
jurisdiction to consider the referral on the basis that same ought
to have been referred to
the Third Respondent. It is however not
clear how the Applicant and/or Legalwise were informed of this
development.
In her founding affidavit, the
Applicant alleges that she was initially under the impression that
the referral had been ‘re-referred’
by Legalwise to the
Third Respondent (that is, on the same papers), but was subsequently
“informed” that it was “transferred”
by the
CCMA to the Third Respondent. Annexure “FR 3” to the
Applicant’s founding affidavit simply indicates
that the
referral was sent by a “Gary” to the telefax number of
the Third Respondent on 5 November 2012.
On 10 November 2009, the third
Respondent’s case management officer wrote to Legalwise
and informed it that the referral had not been signed by the
Applicant
as required by the Council’s Dispute Collective
Agreement and thus needed to be referred afresh to the Council
together
with an application for condonation. The Applicant appears
to accept that she was advised of this development on 10 November
2009 and that she was told by Legalwise that she should consult with
an attorney on their panel and subsequently did so on 16 November
2009, less than a week later.
The Applicant’s attorneys
advised the Applicant that they could only assist her once they had
obtained “cover”
from Legalwise. It appears from the
record that cover to take instructions and complete a referral to
the CCMA was granted by
Legalwise to Applicant’s attorneys on
27 November 2009. The attorneys in turn adopted the view that this
only constituted
cover for the completion of a new referral to
conciliation and thus would need to obtain additional cover from
Legalwise to cover
the costs of the condonation application. They
did not however perform the referral as an interim step and this
remains unexplained.
The Applicant’s attorneys do not appear
to have sought cover from the Applicant herself or to have advised
her in terms
that her prospects of obtaining condonation could be
prejudiced as a result of further delays.
On 18 March 2010, the attorneys were
advised by Legalwise that they had cover and that they could
proceed. Quite fortuitously,
the Applicant had attended the offices
of her attorneys on that exact date.
Notwithstanding the above, the
condonation application was only filed on 30 September 2010, more
than six months after cover had
been granted. The condonation was
accompanied by a signed referral form which appears to have simply
been a copy of the existing
Form 7.11 to which the Applicant’s
signature had now been appended.
The condonation application was
opposed by the First Respondent which filed substantive opposing
papers setting out why it was
of the view that the Applicant should
not be granted condonation.
On 22 October 2010, Second Respondent
found that the Applicant had not provided an acceptable explanation
for her delay in referring
her dispute and thus that condonation
should be refused.
Was the first referral defective
?
In a line of decisions starting with
Rustenburg Platinum Mines
Ltd (Rustenburg Section) v CCMA and Others
,
1
this Court (and following it the
CCMA) has found that the failure by the referring party to
personally sign a referral to conciliation
constitutes a material
defect which deprives the CCMA (and a bargaining council) of the
jurisdiction to hear the dispute. The
personal signature of a
referral form is thus a jurisdictional fact which must be
established before the CCMA or a bargaining
council can exercise its
jurisdiction over the dispute.
I am thus of the view that the first
referral, in its original form, was defective and thus could not
have formed the basis of
lawful jurisdiction without some further
act.
Was the first referral capable of
ratification and was it ratified
?
The Applicant now relies on the
decision of the appeal court in
ABC
Telesales v Pasmans
.
2
That court was faced with the
situation where a candidate attorney in the employ of an employee’s
attorneys of record had
signed the referral form. The referral was
thus defective for want of compliance with what was then Rule 5.1 of
the CCMA Rules.
The court found that in order to give
effect to the intention of the lawmaker, it must be held that the
purpose of Rule 5.1 was
to allow the CCMA to reject the referral
form, thereby avoiding an unauthorised referral. The court went on
to find:
‘
However,
the referring party’s participation in the conciliation process
without
objection
renders
the requirement of her signature redundant
at
that stage.
It
follows that the rule-maker could not have intended the rule to apply
once such participation had occurred and with it, the ratification
of
the referral.’
3
(my emphasis)
The appeal court thus concluded that
this court was incorrect in finding, as it did in
Rustenburg
Platinum Mines Ltd
(supra)
that the referral remained invalid beyond the stage of conciliation
where neither the CCMA nor the opposing party had
objected.
The difficulty that this argument
holds for the Applicant is that there was no attempt on her part to
ratify the first referral.
There was no tacit acceptance of the
referral by the CCMA and it is quite clear that the Third Respondent
made its view clear
immediately on the receipt of the referral. In
this regard,
I point out that
it makes no difference to my mind how the referral was directed to
the Third Respondent as it, and only it, was
entitled to take a view
on whether the requisite jurisdictional facts were present before
it.
Once the Applicant was advised in
terms that the referral was defective,
she
took belated steps almost a year later to lodge a second referral
with the Third Respondent. Thus contrary to what was submitted
on
the Applicant’s behalf, she had not ratified her first
referral, but had rather withdrawn it in favour of the second.
It was this second referral, together
with its attendant condonation application, that served before the
Second Respondent and
to which he had to apply his mind. The first
referral thus fell by the wayside and became completely irrelevant
save as part
of the factual matrix going to the explanation for the
delay.
Even if I am wrong and the Applicant
did seek to ratify the first referral on 30 September 2010, the
First Respondent was entitled
to object. The effect of this
objection was to require the Applicant to file a compliant referral
(or at the very least an amended
one) together with a condonation
application. To hold otherwise would be to allow the Applicant to
proceed with a defective referral
where one of the prerequisite
jurisdictional facts was missing and where the opposing party had
refused to give its consent to
the non-compliance.
In
this regard,
the law now seems
to be settled that the absence of a jurisdictional fact (such as a
signed referral form) vitiates the arbitrator’s
jurisdiction
whether the point it is raised or not – jurisdiction being a
question of objective fact.
4
I have also been unable to find any
authority for the general proposition that uncondoned and unilateral
ratification may take
place in the face of objection from an
opposing party.
Second Respondent’s Ruling on
Condonation
The Second Respondent found that on
the face of the application that was before him, the explanation for
the delay, coupled with
the extent thereof, was not acceptable. The
Applicant had thus not shown good cause and hence her application
for condonation
ought to be refused.
The Applicant’s grounds of
review in these proceedings are in essence that the Second
Respondent failed to properly consider
her condonation application,
in particular that he failed to have due regard to the explanation
for the Applicant’s delay
and secondly that he simply ignored
the Applicant’s prospects of success.
In my view, it is incomprehensible
that the Applicant and her attorneys did not appreciate the urgency
of the situation before
them. They were advised in terms by the
third Respondent that the application was defective and yet chose to
litigate at their
leisure. It appears that,
at
times,
the Applicant’s
attorneys had themselves ceased to believe that the Applicant
intended to proceed with her dispute as they
received no word from
her. The law is clear that a litigant is required to apply for
condonation as soon as she becomes aware
of the defect involved.
5
Whilst the Applicant has detailed
some of her travails during this period, there are glaring gaps and
inconsistencies. Put simply,
her actions were not those of a
concerned litigant who wished the expeditious resolution of her
dispute. In particular there
is no evidence to suggest that the
Applicant was incapable of taking reasonable steps to instruct her
attorneys. I am thus of
the view that this matter differs markedly
from that in
Liberty Life
Association of Africa Ltd v Hiemstra and Others
,
6
where the applicant employee took
active steps himself to rectify a defective referral.
The Applicant’s attorneys also
appear to have attached little urgency to the matter. The manner in
which they dealt with
the service and filing of the condonation
application once completed was lackadaisical in the extreme and not
befitting what
was pointedly an urgent situation. Regrettably,
the Applicant must be saddled with
these consequences as well.
I am of the view that the Second
Respondent considered the various factors raised before him as I
have detailed above and found
that the Applicant had not provided an
acceptable explanation for her delay in referring her dispute
properly to the Third Respondent.
The law is clear that an applicant
for condonation must demonstrate that she has both an acceptable
explanation for her delay
as well as reasonable prospects of
success. Where there is no reasonable explanation for the delay,
then the prospects of success,
irrespective of their strength, can
not warrant the granting of condonation.
In
Moila
v Shai and Others
,
7
the Labour Appeal Court confirmed
that a decision maker does not need to consider the prospects of
success at all where the applicant
for condonation has failed to
provide an acceptable explanation for his or her default. That
decision also stressed that where
there is a lengthy delay, the
explanation must be compelling. The ‘test’ was stated in
the reverse by the then Appellate
Division in
Chetty
v Law Society, Transvaal
.
8
Whilst there is authority for the
proposition that strong prospects of success might outweigh a less
convincing explanation for
the delay,
9
it is clear that an applicant for
condonation must establish some
prima
facie
explanation
detailing all aspects of the delay before the prospects of success
will become relevant to the enquiry.
The Second Respondent can thus not be
criticised for failing to deal in terms with the Applicant’s
prospects of success.
I do however point out that on the
application,
as it stood
before the Second Respondent,
there
was little if anything to persuade him that the Applicant was likely
to succeed in her case on the merits. The content of
the Applicant’s
founding affidavit in the condonation application does not deal in
any substantive way with the charges
of which she was found guilty,
despite detailed findings having been made by the chairperson of the
disciplinary hearing. The
allegations of procedural unfairness are
extremely vague and in any event rebutted in the First Respondent’s
answering
affidavit. This matter is thus far removed from the
‘egregious’ unfairness found by the LAC in
NEHAWU
obo Mofokeng and Others (supra).
In the premises,
I
do not believe that there is any basis to interfere with the Second
Respondent’s Ruling and accordingly that the application
for
review should be dismissed.
Both parties were in agreement that
costs should follow the result, and I see no reason why this should
not be the case.
I thus make the following order:
The Applicant’s application
for review is dismissed;
The Applicant is ordered to pay the
First Respondent’s costs.
___________________
WHYTE, AJ
Acting Judge of the Labour Court
Appearances:
For
the Applicant: H E Mary instructed by Roets & Du Plessis
For
the First Respondent: C Roodt instructed by Postma Attorneys
1
[1997]
11 BLLR 1475
(LC).
See also
Etschmaier
v CCMA and Others
(1999) 20 ILJ 144
(LC);
Silver v Jaguar Brynston
(1999) 20 ILJ 1988 (CCMA);
Msibi
v SA Post Office
(1999) 20 ILJ 2760
(CCMA);
Morale v Consol Glass
(1999) 20 ILJ 2753 (CCMA); and
Esterhuizen
v Assupol Life
(2005) 26 ILJ 1523
(CCMA).
2
(2001)
22 ILJ 624 (LAC).
3
Id
at para 6.
4
See
CUSA v Tao Ying Metal Industries and
Others
(2008) 29 ILJ 2461 (CC);
Wardlaw v Supreme Moulding (Pty) Ltd
[2007] 6 BLLR 487
(LAC);
Bombardier
Transportation (Pty) Ltd v Mtiya NO and Others
[2010]
8 BLLR 840
(LC).
5
See
CWIU and Another v Ryan and Others
[2001] 3 BLLR 337
(LC) at
para 20.
6
(2001)
6 BLLR 620
(LC).
7
[2007]
5 BLLR 432
(LAC).
8
1985
(2) SA 756
(AD) at 765A-F.
9
See
NEHAWU obo Mofokeng and
Others v Charlotte Theron Children’s Home
(2004)
25 ILJ 2195 (LAC).