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[2013] ZALCJHB 60
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Maleka v Augusta Profiles (Pty) Ltd and Others (JR 2597/11) [2013] ZALCJHB 60 (30 April 2013)
REPUBLIC OF SOUTH REPUBLIC
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case no: JR 2597-11
In the matter between:
PHASWANE DANIEL MALEKA
.....................................................................
Applicant
and
AUGUSTA PROFILES (PTY) LTD
....................................................
First
Respondent
METAL AND ENGINEERING
INDUSTRIAL BARGAINING COUNCIL
.......................................
Second Respondent
KEVIN MULLIGAN N.O.
...................................................................
Third
Respondent
Heard: 30 April 2013
Delivered: 30 April 2013
EX
TEMPORE
JUDGMENT
Lagrange J
The applicant has applied to review a rescission ruling handed down
on 31 August 2011 which he received in 5 September 2011.
The
applicant filed his review application on 27 October 2011, and
accordingly is approximately one and a half weeks late. The
applicant has applied for condonation for the late filing of the
review application.
The reason for the delay is the applicant’s difficulty in
obtaining confirmation of a case number which was only obtained
in
20 October 2011. The applicant identifies the person he was
communicating with in the registrar's office and provides sufficient
detail to make his explanation plausible. In my view of the delay is
not excessive given that the applicant completed the application
by
20 October 2011. It is not entirely clear why it took a further week
to file the application, but I am satisfied that the
explanation is
sufficient given the brevity of the time period of the delay. The
first respondent is not opposing the review
application, nor has it
opposed the application for condonation. As it is the party best
able to state any prejudice it might
have suffered, it is safe to
assume that it suffered no material prejudice as result of the
delay. On the merits of the review
application of dealt with below
and in the light of my conclusions on that issue condonation of the
late filing of the review
application should be granted.
The applicant had applied to rescind a dismissal ruling issued on 21
July 2011 following his failure to appear at the arbitration
process
set down for that day. He arrived at the dispute resolution Centre
where the arbitration hearing was being held one hour
late. The
reason given by the applicant for his lateness was that the
arbitration was set down during a national strike in the
petroleum
sector and filling stations in the area where he lives (Ga Rankuwa)
had run dry and his car ran out of petrol. By the
time he had
managed to obtain more petrol he was already out of time and he made
two calls to one Dudu Mahlangu at the CDR reception
to inform them
that he was running late. In his review application the applicant
says that when he arrived at the DRC the arbitrator
advised him that
he had received his messages but the employer was not prepared to
wait any longer.
In deciding whether to accept that the applicant had a justifiable
explanation for his lateness, the arbitrator took account
of the
employer's submission that the applicant had provided no proof of
his claims that he was unable to obtain petrol in and
stated that
the petrol strike only impacted on the public during its first week
and by the time the arbitration was convened
almost all petrol
stations were receiving regular deliveries of petrol. The employer
also argued that because the applicant said
he was already out of
time by the time he managed to find petrol, if he had prepared
properly it could have avoided being late
for the proceedings.
In evaluating the applicant’s justification the arbitrator
stated:
"It is significant that
the applicant did in fact arrived at the arbitration venue, although
nearly an hour late. This in itself
highlights the fact that the
applicant was actually able to obtain petrol enough to get into the
venue. He was aware of the time
at which he was expected to appear at
the arbitration. Had he started earlier or make proper provision he
ought to have been able
to arrive in time. If the ready availability
of petrol was genuinely a problem, he was aware of the situation in
ought to have
taken it into account in his planning."
[1] The arbitrator then went on to evaluate whether the applicant's
prospects of success were sufficient to outweigh the inadequacy
of
his explanation. In doing so, the arbitrator appears to have applied
the test for condonation rather than the test for rescission.
An
applicant for rescission of an award must show show:
1.1. that its absence at the hearing has been reasonably explained;
and
1.2. that it has a
bona fide
case to place before the CCMA and
that it has not lost interest in having its case heard.
1
In
SA Democratic Teachers Union v Commission For Conciliation,
Mediation & Arbitration & Others
(2007) 28 ILJ
1124 (LC)
, Molahlehi J restated the well known principle of
assessing a bona fide case as opposed to the test for reasonable
prospects
of success applied in condonation applications:
“
[38]
A commissioner in considering prospects of success does not have to
pronounce on the merits of the case. All that the commissioner
needs
to do is to investigate whether on the averments made by the
applicant there is a prima facie case, that there is a chance
of
succeeding when the main case is heard. In other words to establish
whether there is a reasonable prospect of success on the
merits, it
suffices if an applicant can show a prima facie case
through
setting out averments which if established at the proceedings of the
main case would entitle the applicant to some relief.
a bone fide
case is not the same as a case with reasonable prospects of success.
It is simply a case in which the applicant can
succeed if his version
were to be upheld
.”
The applicant appears to be dogged by problems of lateness and was
dismissed after arriving 20 min late at work while he was
in a final
written warning. The respondents premises are in Boksburg and the
applicant was travelling from Ga-Rankuwa where he
had his permanent
residence at the time. He claimed he left at 4:30 AM and it took him
nearly 3 hours to get to work as opposed
to the normal hour. He was
not feeling well as he had a toothache, which appears to have been
confirmed by evidence that he had
a tooth extracted later that day.
The arbitrator's comment was that he could not see the relevance of
this to the applicant's
lateness on that occasion. In the
applicant's version if he was in fact given half a day off to attend
a dentist, and it appears
to be an implicit part of his case that
his lateness on that occasion ought to be mitigated by the fact that
he should have gone
to the dentist in any event that morning, and in
the circumstances the fact that he did first report for work albeit
20 min late
should be seen in that context as mitigating factor. On
the face of it, the applicant's case seems weak, but I cannot say
that
an arbitrator might not find mitigating factors in the context
in which the lateness occurred or in the degree of lateness, which
militate against dismissal being an appropriate sanction.
In the circumstances, I am satisfied that the third respondent did
not apply his mind to the criteria for rescission, and misconstrued
the nature of a bona fide case. In relation to his evaluation of the
justification for the applicant's lateness at the arbitration
hearing he failed to have consideration to the phone calls made by
the applicant demonstrating his intention to attend the hearing
and
preferred the evidence of the employer on the general effect of the
strike in the petroleum sector without explaining why
he dismissed
the applicants evidence of the prevailing situation at petrol
stations in the area where he lived, when the employer's
representative had no particular knowledge of this. Everything
pointed to the applicant taking steps to attend the hearing, but
being thwarted by logistical obstacles caused by the strike in
getting to the dispute resolution Centre in Johannesburg from
Ga-Rankuwa on time. The arbitrator failed to evaluate whether the
applicant was in wilful default, when assessing the justification
for his lateness.
Order
[9] in light of the evaluation above,
9.1. The applicant's late filing of his application to review the
arbitrator's rescission ruling issued under case number MEGA
30659
dated 31 August 2011 is condoned.
9.2. They said ruling is reviewed and set aside and substituted with
a ruling resending the dismissal ruling issued in the same
matter on
21 July 2011.
9.3. The registrar must remit of the applicant’s unfair
dismissal dispute under case number MEGA30659 to the dispute
resolution
Centre of the second respondent which must set the matter
down for a fresh hearing before an arbitrator other than the third
respondent.
9.4. As the matter is unopposed no order is made as to costs.
_________________
R LAGRANGE, J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT: Self representing
1
Northern
Province Local Government Association v Commission for Conciliation,
Mediation and Arbitration and Others
(2001)
22 ILJ 1173 at paras 15 – 17;
Foschini
Group (Pty) Ltd v Commission for Conciliation, Mediation and Others
(2002) 23 ILJ 1048 (LC) at para 16.