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[2013] ZALCPE 7
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Lemley v Commission for Conciliation Mediation and Arbitration and Others (P 32/12) [2013] ZALCPE 7 (17 April 2013)
Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
case no: P 32/12
In the matter between:
EDWARD LEMLEY
...................................................................................................
Applicant
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
..............................................................
First
Respondent
COMMISSIONER E LOOCK N.O
...........................................................
Second
Respondent
COMMISSIONER J FORBES N.O
.............................................................
Third
Respondent
T SYSTEM SA (PTY) LTD
.......................................................................
Fourth
Respondent
Heard: 22 January 2013
Delivered: 17 April 2013
Summary: An applicant who has withdrawn a dispute from the CCMA
before it is decided on its merits is not barred from referring the
same dispute afresh. A ruling that the CCMA lacks jurisdiction to
entertain a dispute when it in fact has such jurisdiction is
erroneous and reviewable.
JUDGMENT
LALLIE, J
Introduction
This is an application to review rulings of the second and third
respondents in which the applicant was barred from referring
a
further dispute having withdrawn his original one. As this
application has been filed outside the six weeks’ period
envisaged in Section 145 (1) (a) of the LRA,
1
the applicant filed an application for the condonation of its late
filing. Both applications are opposed by the fourth respondent.
Condonation Application
It is trite that in determining the
condonation application I need to consider a number of factors
including the degree of lateness,
the explanation of such lateness,
prospects of success, the importance of the case and prejudice. In
this regard, see
Melane v Santam
Insurance Co Ltd.
2
I will now consider whether the applicant has made out a case for
the grant of the condonation application. Section 145 (1) (a)
of the
LRA requires an applicant to file a review application within six
weeks of the date that the award was served on the applicant.
It,
further, provides for instances in which the application may
timeously be filed later than the six weeks period. The applicant’s
circumstances fall under the first category. The applicant alleged
that this application is nine months late as he received both
rulings in question in May 2011. The fourth respondent expressed the
view that the rulings are two years and a year late respectively.
Explaining the delay, the applicant submitted that after receiving
the rulings in May 2011, he consulted with Advocate Ashley
Moorhouse
during July 2011. He was advised in December 2011, after many
consultations, to review the rulings as the first was
based on a
error of law. As he was not satisfied with the delay from July to
December 2011, he approached a different firm of
attorneys in
January 2012 which assisted him file the review application on 13
February 2012.
The applicant submitted that he has good prospects of success as the
rulings in question are based on an error of law. He further
submitted that he will suffer more prejudice than the fourth
respondent should the condonation application be refused as he will
be unable to pursue his dispute. He ,further, submitted that his
claim for severance benefits has not prescribed.
An analysis of the extent of the delay in the
filing of the review application reveals that after the parties were
verbally informed
of the first ruling on 18 March 2010, it took the
applicant a lot of effort and persuasion before receiving the
written ruling,
well over a year after it had been made. He had to
wait for about two months for the second ruling. The CCMA’s
failure
to serve the applicant with copies of the rulings shortly
after they were made cannot be laid at the door of the applicant
particularly
because he did not just sit by and waited for what was
lawfully due to him. With the assistance of his attorneys he kept
asking
the CCMA for copies of the first ruling. At face value the
period between May 2011 when the applicant receive the first ruling
and his first consultation with Advocate Moorhouse in July 2011 and
the many subsequent consultations until December 2011 looks
excessive. But when it is scrutinized, a picture of an applicant who
keeps consulting with his counsel on his matter from time
to time
emerges. The applicant never lost interest in his case; this view is
supported by his conduct of approaching a different
firm of
attorneys in January 2012 when his many consultations yielded no
results. The new firm acted with the required urgency
and filed his
review application a month later. I am mindful of the line of
decisions including
Saloojee and
Another, NNO v Minister of Community Development
3
which hold a litigant responsible for the delay of his or her chosen
representative. Each case is judged on its merits and the
circumstances of this matter require that the applicant’s
persistent efforts of trying to approach this court on review
be
acknowledged.
The applicant has good prospect of success because the first ruling
is based on the second respondent’s incorrect assessment
of
the facts before her. The second ruling is based on the first. It is
true that the applicant will suffer more prejudice than
the fourth
respondent should this application be refused as he will lose the
opportunity of having his day in court.
The review application is late by a period of about nine months. It
is excessive, however, the applicant provided a good explanation
for
the lateness, he has good prospects of success and he will suffer
more prejudice than the fourth respondent should this application
be
refused. Having considered all the relevant factors collectively and
the circumstances of this case, I am convinced that the
applicant
has made out a case for the grant of the condonation application.
The review
The review application is opposed by the fourth respondent, mainly,
on the basis that the rulings which form the subject of this
application are not reviewable in law.
The applicant was employed by the fourth respondent and its
predecessor until his dismissal for operation requirements on 25
September 2009. The applicant, assisted by his trade union UASA
challenged the fairness of the dismissal for operational
requirements
at the first respondent (the CCMA). At the arbitration
hearing scheduled for 9 December 2009, the applicant withdrew his
case
on the advice of his union official as he intended adding
further claims to his unfair dismissal for operational reasons
claim.
The applicant referred a second dispute to the CCMA in which he
augmented the relief he originally sought against the fourth
respondent by adding or claim for entitlement to severance benefits.
At its arbitration, on 18 March 2010, the second respondent
found
that the CCMA lacked jurisdiction as the applicant had earlier
withdrawn the dispute.
The applicant’s requests to the CCMA for a hard copy of the
ruling fell on deaf ears and he referred another dispute to
third
respondent on 28 February 2011 challenging his unfair dismissal for
operational reason and for severance benefits. It was
scheduled for
conciliation on 28 February 2011 before the third respondent who
issued the ruling that the CCMA had no jurisdiction
to deal with the
dispute.
Grounds for review
The applicant submitted that the second and third respondents
committed misconduct and gross irregularity in relation their duties
in reaching the unreasonable decision that he was unable to refer
another dispute to the CCMA after withdrawing the same or similar
dispute in the past. The applicant further submitted that he
retained the right to refer the dispute to the CCMA again after
abandoning the original one. The disputes were different in that the
first referral was an unfair dismissal dispute and in the
subsequent
ones he added severance benefits to the unfair dismissal for
operation reasons claim.
I now consider whether the applicant proved the existence of grounds
to review and set aside the ruling of the second respondent
(the
first ruling) which is the subject of this application. It is common
cause that at the arbitration hearing which was schedule
for 9
December 2009, the applicant voluntarily withdrew and abandoned the
unfair dismissal for operational reasons dispute. He,
subsequently,
filed another dispute against the fourth respondent in which he
sought the following relief:
‘
1.
Retrospective reinstatement at Port Elizabeth, in a position agreed
to by both parties; or
2. Severence
package to be paid in accordance to the ARMA retrenchment policy
version 2, clause 7.2; or
3.
Alternative relief.’
When the dispute was scheduled for arbitration on 18 March 2010, the
second respondent issued the first ruling in which she found
that
the CCMA lacked jurisdiction to entertain it as the applicant had
earlier withdrawn and abandoned the same dispute, relating
to the
same set of facts and requiring the same relief.
The second respondent erred in stating that the applicant sought, in
the dispute before her, the same relief he sought in the
referral he
had withdrawn.
It is common cause that the dispute the applicant withdrew on 9
December 2009 is not the same as the one before the second
respondent. The former related to the applicant’s unfair
dismissal for operational reasons and the latter related to the
unfair dismissal for operation requirements and entitlement to
severance benefits. The second respondent’s decision was
based
on her error in her assessment of the dispute before her. Had the
second respondent assessed the dispute before her correctly,
she
would have reached a different decision. Her incorrect decision
prejudiced the applicant in that it denied him the opportunity
of
having his case heard. The correct approach to be adopted in
determining whether the CCMA has jurisdiction is laid down in
SARPA
v SA Rugby (Pty) Ltd and others
,
SA Rugby (Pty) Ltd v SARPU,
4
where it was held that it is whether objectively speaking, the facts
which would give the CCMA jurisdiction to entertain the
dispute
existed. If such facts did not exists the CCMA had no jurisdiction
irrespective of the commissioner’s finding.
The court further
held, relying on
Benicon Earthworks and Mining Services (Pty) Ltd
v Jacobs NO and Other
5
that the CCMA may not grant its jurisdiction which it does not
have nor deprive itself of jurisdiction by making a wrong finding
that it lacks jurisdiction which it actually has.
6
Section 191 (1) (a) (ii) of the LRA confers jurisdiction to
conciliate unfair dismissal disputes on the CCMA. Section 41 of the
Basic Condition of Employment Act 75 of 1997 (the BCEA) grants the
CCMA jurisdiction to conciliate and arbitrate disputes regarding
entitlement to severance benefits. Section 191 (12) grants the CCMA
jurisdiction to arbitrate disputes regarding the fairness
of
dismissals for operational requirements of the employer. When the
second respondent made her finding, the dispute regarding
the
applicant’s entitlement to severance benefits had not been
withdraw from the CCMA by the applicant. The dispute before
the
second respondent was materially different from the one the
applicant had withdrawn. When the dispute before the second
respondent is considered objectively the only conclusion that can be
drawn is that the CCMA had jurisdiction to arbitrate at least
the
entitlement to severance benefits dispute.
I agree with the approach in
Ncapayi
v
Commission for
Conciliation, Mediation and Arbitration and Others
7
that disputes which have been referred to the CCMA and withdrawn
before they are decided on their merits may be referred afresh.
The
applicant is, therefore, not barred from referring afresh the unfair
dismissal dispute he withdrew before the CCMA decided
it on the
merits. The second respondent, therefore, erred in finding that the
CCMA lacked jurisdiction to entertain the dispute
before her as the
CCMA has jurisdiction to entertain the entire dispute before her.
Her decision is, therefore, stands to be
reviewed and set aside.
The third respondent’s approach of refusing to review the
second respondent’s jurisdictional ruling is correct. However,
because his finding is based squarely on the incorrect finding of
the second respondent’s ruling, that the CCMA lacked
jurisdiction to entertain the dispute before her as it had been
withdrawn and abandoned, it is equally incorrect and reviewable.
The fourth respondent did not act unreasonably by opposing this
application; and a costs order will, therefore, not be appropriate
in the circumstances.
[22] In the circumstances, the following order is made:
22.1. The application for condonation of the late filing of the
review application is granted.
22.2. The second respondent’s ruling under case number ECPE
5759-09 and dated 18 March 2010 is reviewed and set aside;
22.3. The third respondent’s ruling under case number 497-11
and dated 4 March 2011 is reviewed and set aside;
22.4. The first respondent is directed to schedule the dispute under
case number ECPE 5759-09 for arbitration before a commissioner
who
will consider all the necessary enquiries including condonation,
other than the second and third respondents ;
22.5.No order is made as to costs.
______________
Lallie, J
Judge of the Labour Court of South Africa
APPEARANCES
For the Applicant: Advocate M Grobler
Instructed by: Van Der Walt Attorneys
For the Fourth Respondent: Mr F Le Roux for
Mohlaba & Moshoana Inc
1
Labour
Relation Act 66 of 1995.
2
(1962)
(4) 531 at 532 B-F.
3
1965
(2) SA 135
(A).
4
[2008] ZALAC 3
;
(2008)
9 BLLR 845
(LAC)
at
para 41
.
5
(1994)
15 ILJ 801 (LAC)
6
Above
n 4 at para 40.
7
(2011)
32 ILJ 402 (LC)
at para 27.