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[2012] ZALCJHB 105
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Pather v Commission for Conciliation Mediation and Arbitration and Others (JR 1944/10) [2012] ZALCJHB 105 (9 October 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
case
no: JR 1944/10
In the matter between:
PRENAVEM
PATHER
..............................................................................................
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
...............................................................
First
Respondent
COMMISSIONER
L CELLIER, NO
.........................................................
Second
Respondent
CONVENE
VENTURE PHILANTHROPY
....................................................
Third
Respondent
Heard
:
24 January 2012
Delivered
:
9 October 2012
Summary: Application for condonation and review
of
arbitration award: Inadequate reasons offered for delay. Application
for condonation dismissed.
JUDGMENT
GUSH J
The applicant in this matter applies to review and set aside the
award of the second respondent who dismissed the applicant’s
application to the first respondent on the grounds that the
dismissal of the applicant by the third respondent was both
substantively
and procedurally fair. The applicant in addition
applies for the late filing of the review application to be
condoned.
The third respondent has opposed both the review and the condonation
applications.
The applicant had been employed by the third respondent in January
2009 on a fixed term contract for a period of 18 months expiring
on
31 July 2010. On 19 June 2009, the applicant was dismissed by the
respondent for misconduct.
The applicant, aggrieved by her dismissal, referred a dispute to the
first respondent who in turn, after the matter had been
conciliated
and referred to arbitration by the applicant, appointed the second
respondent to arbitrate the dispute. The arbitration
took place on 8
March 2010 and the second respondent issued the award on 10 March
2010.
The applicant alleges that she collected the award from the first
respondent on 6 April 2010 and thereafter filed an application
to
review and set aside the award on 30 August 2010, 21 weeks after the
applicant collected the award and 15 weeks after the
expiry of the
statutory period within which applications to review awards of CCMA
commissioners may be filed with this Court.
1
At the same time as filing the review application the applicant
filed an application to condone the late filing of the review
application.
The Delay: The applicant’s explanation for and the
circumstances surrounding the late filing of the review application
are:
After the arbitration which had been concluded on 8 March 2010, the
applicant contacted a senior CCMA commissioner Mr. Docrat
(who
according to her email address had ostensibly at her request
changed the commissioner appointed to hear the arbitration)
on 16
March regarding concerns she had “regarding the arbitration
hearing”.
The award, which is dated 10 March 2010, had by this time been
completed.
The applicant records that she contacted the first respondent on
29
th
March and had been told that the arbitrator had
dismissed her application but had omitted to sign the award. This
she apparently
conveyed to Mr Docrat.
The applicant avers that she collected the award on 6 April and on
19 April again contacted Mr Docrat requesting assistance.
Mr Docrat
(correctly) advised the applicant on 21 April that she would be
required to approach an attorney for assistance should
she remain
dissatisfied with the outcome.
The applicant advised Mr Docrat that she had fallen ill in April
and she sets out in her affidavit that she was admitted to
hospital
shortly after 19 April to have her gall bladder removed.
On 26 June 2010, the applicant contacted Ms Vermaak (an attorney
who at all relevant times was employed by the applicant’s
attorneys) requesting her to consider taking on her case "pro
bono". The applicant records that she “provided
Vermaak
with the background to [her] matter” in her request for
assistance.
The applicant received a reply from Ms Liesl Williams an attorney
employed by the same firm on 28 June 2010 requesting further
information in order for the applicant’s request to be
considered.
On 30 June, Ms. Williams advised the applicant her request was
being considered and that she would revert to the applicant.
Inexplicably, the applicant was only advised of the acceptance of
the pro bono instruction on 20 July 2010.
The applicant records that consultations followed on 20 July 2010
and that a “notice of motion and founding affidavit
... were
prepared”.
On 6 August 2010, the applicant was advised that first draft of the
affidavit had been completed and was to be settled by Advocate
Michael van As.
The applicant advised her attorneys that, whilst she was to be
hospitalised for depression for three days from 10 August, they
could contact her by email if necessary.
Ms Vermaak went on leave for the period 10 to 17 August 2010. On
Vermaak’s return she advised the applicant that she,
Vermaak
had discussed the matter with van As who had, “in the
meantime” settled the papers and that she, Vermaak,
had then
instructed van As to draft the necessary application for
condonation. (It bears pointing out that at this stage the
applicant had been in possession of the award for some 19 weeks and
the attorneys, assuming, not unreasonably, that they would
have
perused the award before agreeing to represent the applicant, some
7 weeks).
The finalising of the applicant’s papers however was further
delayed by Vermaak’s involvement, until 24 August,
“in
assisting another client with violent strike action” (sic).
That matter apparently having been dealt with by the applicant’s
attorneys, they arranged a consultation on 27 August
when the
application papers were signed and thereafter filed on 30 August
2010.
The applicant avers that this is a reasonable explanation for the
delay and attaches a confirmatory affidavit by Vermaak. Vermaak
offers no explanation whatsoever for any of the delays but simply
“confirms the contents” of the applicant’s
founding affidavit in so far as it relates to her.
Prospects of Success and Prejudice: the applicant in the founding
affidavit in the application for condonation refers to the
founding
affidavit in the review application and avers that this establishes
that she has excellent prospects of success in succeeding
with the
review. As for prejudice, the applicant simply avers that she
diligently pursued her matter and that only she would
suffer
prejudice should the application not be granted and that the third
respondent would not suffer any prejudice if her application
was
granted.
I shall consider the applicant’s prospects of success below.
The third respondent opposed the applicant’s application for
condonation on the grounds that the application was excessively
late; that the applicant’s explanation for the delay was
inadequate; that despite the applicant’s averments to the
contrary the third respondent would suffer prejudice should
condonation be granted. As regards prospects of success, the third
respondent referred, as did the applicant, to its opposing affidavit
in the review application in support of its contention that
the
applicant had no prospects of success.
In particular, the third respondent took issue with the applicant’s
explanation for the delay and specifically:
The absence of medical reports; and
The absence of confirmatory affidavits from her attorneys regarding
the delays in filing the review application.
The applicant and her attorneys in the replying affidavit when
dealing with these specific issues display a disturbingly cavalier
approach to the indulgence the applicant seeks from the Court. This
is particularly so given that the applicant seemingly did
nothing to
pursue her matter between 19
th
April and 26
th
June on the strength of her having undergone a Cholecystectomy on
22
nd
April and that her attorneys were first approached
on 26
th
June and only filed the application on 30
th
August.
In her replying affidavit, the applicant, in answer to the specific
point raised by the third respondent regarding the absence
of
medical reports, simply produces a certificate confirming that she
had undergone a gallbladder removal (Cholecystectomy) without
any
reference whatsoever to the time it would take to recover and when
she would have been in a position to resume and “actively”
pursuing her matter.
As for a confirmatory affidavit dealing with the unexplained delays
occasioned by her attorneys, the applicant simply promises
that a
confirmatory affidavit would be filed in due course, (but wasn’t).
To put the delay in filing the application during
the period 26
th
June to 30
th
August in context, it includes:
An unexplained delay between 28
th
June when the
applicant provided her attorneys to be with the documentation and
award and 20
th
July when the attorneys decided to accept
the applicant’s instructions;
a delay whilst Ms Vermaak went on holiday from 10
th
August and 17
th
August; and
an unreasonable explanation between 17
th
August and 27
th
August when the applicant eventually signed the affidavit.
All of these delays cry out for some explanation from the
applicant’s attorneys. In the absence of an explanation and
any suggestion by the applicant that she took any steps whatsoever
to expedite the filing of her application in the face of these
delays
The relief that the applicant seeks in her notice of motion is an
order reviewing and setting aside the second respondent award
and
substituting it with an order ‘that the applicant’s
dismissal is both procedurally and substantively unfair’.
It
is necessary to record that the fixed period for which the applicant
was employed expired on 31 July 2010, exactly one month
before the
application for review was filed.
In argument, the applicant’s counsel suggested, firstly that
the applicant did not apply for the court to substitute its
finding
but merely that the matter be referred back and secondly that in
order to do so, the court should have regard to the
prayer for
"further or alternative relief" contained in the notice of
motion.
As far as the applicant’s prospects of success are concerned
in relation to the delay and the explanation therefor, both
counsel
relied on principles enunciated in
Melane v Santam insurance Co
Ltd
2
viz.
‘
Among
the facts usually relevant are the degree of lateness, the
explanation therefor, the prospects of success and the importance
of
the case. ... What is needed is an objective
conspectus
of all
the facts. Thus a slight delay and a good explanation may help to
compensate for prospects of success which are not strong.
Or the
importance of the issue and strong prospects of success may tend to
compensate for a long delay. And the respondent’s
interest in
finality must not be overlooked.’
3
In the matter of
Moila V Shai No and Others,
4
Judge Zondo JP in dealing with an application for condonation held:
‘
I do
not have the slightest hesitation in concluding that this is a case
where the period of delay is excessive and the appellant's
purported
explanation for the delay is no explanation at all. I accept that the
case is very important to the appellant. However,
the weight to be
attached to this factor is too limited to count for anything where
the period of delay is as excessive as is the
case in this matter and
the explanation advanced is no explanation at all. If ever there was
a case in which one can conclude that
good cause has not been shown
for condonation without even considering the prospects of success,
then this is it. Where, in an
application for condonation, the delay
is excessive and no explanation has been given for that 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.’
5
Zondo J continued to hold the following:
‘
In
Chetty
v Law Society, Transvaal
1985
(2) SA 756
(A) Miller JA, on behalf of a unanimous court, dealt with
the term 'sufficient cause' or 'good cause' when used in the context
of an application for rescission of a judgment. At 765D-E he said:
“
For
obvious reasons a party showing no prospect of success on the merits
will fail in an application for rescission of a default
judgment
against him, no matter how reasonable and convincing the explanation
of his default.
An
ordered judicial process would be negated if, on the other hand, a
party who could offer no explanation of his default other
than his
disdain of the Rules was nevertheless permitted to have a judgment
against him rescinded on the ground that he had reasonable
prospects
of success on the merits
.”
(Emphasis added.)
[Although the italicized part of
this passage was said in respect of an application for the rescission
of a judgment, I can see
no reason why as a matter of principle it
cannot or should not hold good in respect of an application for
condonation...‘
6
I am satisfied that given the specific circumstances of this matter,
the delay “is excessive”. At best for the applicant
it
would have become obvious to her and her attorneys on 20
th
July that the period within which the application for review was to
be filed had expired on 18 April 2010.
It is far more probable that when the applicant requested assistance
on 26
th
June the attorneys were aware that the
applicant’s matter had been heard by the first respondent in
March 2010 and that
the statutory time limit had already expired. In
the absence of an explanation it begs the question why the review
application
was not filed sooner. Despite this, the applicant offers
no more than a chronology of events without any reasonable
explanation
for the delays.
As far as the merits of the applicant’s case and her prospects
of success are concerned, the record and documents filed
in this
matter reflect that the applicant referred a dispute to the first
respondent concerning her dismissal by the third for
misconduct.
The applicant’s dismissal followed a disciplinary enquiry into
the applicant’s alleged misconduct namely:
‘
1
breach of your duty of good faith to your employer and breach of
confidentiality in that you accessed Ms Ann Lamont's computer
and
downloaded an e-mail she had sent to third parties;
2 dishonesty, in that you
advised Ms Ann Lamont that you have obtained the said e-mail from a
co-employee when in fact this is not
the case;
3 insolence\insubordination as
exhibited in your e-mail to Ms Ann Lamont dated 10 June 2009 in which
e-mail you accused her of inter-alia
being a liar;
4 unauthorised absence from work
and failure\refusal to apply for leave in that in your e-mail to Ms
Ann Lamont and 10 June 2009,
you simply announced that you would be
taking 11 June 2009 off to go to the CCMA and that it would be taken
off, and you are indeed
absent on 11 June 2009 without
authorisation.’
The applicant referred a dispute regarding her dismissal to the
first respondent who appointed the second respondent conduct
the
arbitration.
At the conclusion of the arbitration the second respondent found:
‘
On the
submissions before me I must find the applicant guilty of all four
counts of misconduct, some more gross and others. In their
totality,
I had been persuaded that the applicant's actions had rendered the
continued employment relationship be intolerable and
that dismissal
was appropriate.’
And issued the following award:
‘
With
due regard to the testimony and evidence before me, to which I have
applied my mind, I find, which I believe is just and equitable,
that
the dismissal of the applicant was both substantively and
procedurally
fair
.
The applicant’s application is herewith dismissed.’
Whilst the applicant suggests that the second respondent failed to
apply his mind to the material placed before him the applicant’s
grounds of review are essentially based on a defect in the
arbitration proceedings in that the second respondent committed a
gross irregularity in the manner in which he conducted the
arbitration and in particular how the second respondent dealt with
the evidence.
The conclusion reached by the second respondent in his award and the
analysis of the evidence do not suggest that the outcome
is one to
which a reasonable decision-maker could not have arrived. At best
for the applicant in order to demonstrate good prospects
of success,
the applicant is required to show that the irregularity deprived the
applicant of a fair hearing.
In the matter of
Director-General, Department of Public Works and
Another V Public Service Sectoral Bargaining Council and Others,
7
Molahlehi J said the following:
‘
The
critical question in determining whether to interfere with an
arbitration award because of latent or patent defects is, as was
stated in
Goldfields
Investment & another v City Council of Johannesburg &
anothe
r,
to determine whether the defect is so serious as to prevent the trial
of the issues resulting in the denial of a fair hearing
of the
affected party. In this regard, Schreiner J dealing with the same
issue in that case observed that -
“
[i]f
it did prevent a fair trial of the issues then it will amount to a
gross irregularity. Many patent irregularities have this
effect. And
if from the magistrate's reasons it appears that his mind was not in
a state to enable him to try the case fairly this
will amount to a
latent gross irregularity. If, on the other hand, he merely comes to
a wrong decision owing to his having made
a mistake on a point of law
in relation to the merits, this does not amount to gross
irregularity”'.
I am not satisfied that the applicant’s prospects of success
in showing that the applicant was denied a fair hearing are
sufficient to outweigh what is a patently poor and inadequate reason
for the delay in filing the application to review the second
respondent’s award.
In the review application, the third respondent’s challenged
the nature of the relief sought by the applicant viz that
despite
having been employed on a fixed term contract which would have
expired on 31 July 2011 the applicant simply sought an
order
declaring her dismissal to be both procedurally and substantively
unfair. The applicant’s response was simply to
state that
should she succeed with the review application she would then
proceed to “launch an automatically unfair dismissal
dispute
in this Court although during argument counsel for the applicant
suggested that the Court should consider “further
or
alternative relief”.
In the circumstances, I make the following order:
The applicants application for condonation is refused;
There is no order as to costs.
_______________________
D H Gush
Judge of the Labour Court
APPEARANCES:
FOR THE APPLICANT:
Adv Hally
Instructed by Norton Rose
FOR THE THIRD RESPONDENT: S Hardie, Stephen Hardie Attorneys
Note
At the conclusion of the hearing of the matter, as there was some
uncertainty as to the status of the third respondent, the parties
were given leave to ascertain and determine whether the third
respondent, a section 21 of the Companies Act 61 of 1973 company,
had
been deregistered and to this end judgment was reserved.
The parties later confirmed that the third respondent was in fact
still registered and operating albeit under another name. The
newly
named entity assumed responsibility and undertook to abide by the
decision of the court.
In the interim however, the court file containing the entire
pleadings in the matter was misplaced in the courts offices and
eventually
the applicant’s attorneys were asked to provide the
court with a duplicate set of the pleadings which they duly did.
The court wishes to express its gratitude to the applicant’s
attorneys for their assistance.
1
Section
145
(1)(b) of the
Labour Relations Act 66 of 1995
2
1962
(4) SA 531
(A).
3
At
page 532 para C – E.
4
(2007)
28 ILJ 1028 (LAC).
5
At
page 1037 para 34.
6
Page
1038 para 35/6.
7
(2012)
33 ILJ 1649 (LC) at para 23.