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[2013] ZALCJHB 157
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Mokgale v Commission for Conciliation Mediation and Arbitration and Others (JR 420/11) [2013] ZALCJHB 157 (11 July 2013)
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGEMENT
Not reportable
Case no: JR 420/11
In
the matter between:
Albert
Mokgale
..................................................................................................
Applicant
and
C
C M A
....................................................................................................
1
st
Respondent
Commissioner
Kagiso Nthite
................................................................
2
nd
Respondent
Sheikh
Anta Diop College
.
.....................................................................
3
rd
Respondent
Heard
:
9 July 2013
Delivered
:
11 July 2013
_____
JUDGMENT
_____
BRUINDERS
AJ
The applicant was a teacher employed by a college. He
alleges that he was unfairly dismissed on 22 July 2010. He was
dismissed
allegedly for fraud and having sexual relationships with
learners. The LRA requires him to have referred his unfair dismissal
dispute within 30 days after the date of the alleged dismissal; i.e.
by 21 August 2010. He referred an unfair dismissal dispute
to the
CCMA on 4 January 2011. His referral was 164 days’ late. He
applied to the CCMA to condone the late referral of
his dispute. The
commissioner found that the referral was 136 days’ late and
that was excessive. He refused to condone
the late referral because
he found that applicant had failed to provide a reasonably
acceptable explanation for the delay.
The applicant applies to review and set aside the
commissioner’s ruling. The review is brought under
s158(1)(g)
of the
Labour Relations Act 66 of 1995
, as amended (the LRA). The
ground of review is not identified with any precision. The applicant
says that the ruling is reviewable
because the commissioner failed
to accept reasonable evidence presented to her. It appears that the
ground of review is that
the commissioner failed to take into
account or ignored relevant evidence while taking into account
irrelevant facts.
That ground of review can only succeed if the applicant
can show that despite being presented with relevant evidence, the
commissioner
chose to ignore that evidence, preferring instead to
refuse condonation on the grounds of irrelevant evidence, and that
her choice
was material. Her choice would be material if reliance on
the evidence that she ignored, would have led to a different result.
The evidence that the commissioner allegedly ignored
was that applicant could not refer his dispute because he was out of
the
country for a period of four months. The extracts from his
passport attached to the review papers show that applicant was out
of the country from 9 August 2010 until 22 November 2010.
It is not clear from the documents before the
commissioner, that this fact was drawn to her attention. If it was
not drawn to
her attention, then she did not ignore it. If it was
drawn to her attention, then it is in any event not material.
Applicant
had 16 days between 23 July (the date of his dismissal)
and 8 August 2010 (the day before his departure) to refer his
dispute.
He provided no explanation for why he failed to do so in
that time. Nor was his explanation for why he failed to do so in
that
period, or in the period between his return (on 22 November
2010) and the date of referral (on 4 January 2011) found to be
acceptable
by the commissioner. His explanation was that it took
time for him to gather relevant evidence and that he did not have
money
to consult an attorney (which he says he did on 4 December
2010.) His explanation that he took time to find an attorney or
funds
to pay an attorney was rejected by the commissioner. She found
that he did not need an attorney or funds to refer his dispute.
Her
reason for rejecting the applicant’s explanation is not
unreasonable.
[6] The commissioner cannot be faulted for rejecting the
applicant’s explanation for his excessive delay as
unsatisfactory
and therefore unacceptable. There are no grounds in
law to set aside the ruling. I make the following order:
(a) The application to review and set aside the ruling
made by commissioner Nthite under CCMA case number GAJB 141-11 is
dismissed.
(b) No costs order is made.
T J Bruinders
Acing Judge of the
Labour Court