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[2014] ZALCJHB 121
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PSA obo Letsoalo v Malema NO and Others (JR2413/10) [2014] ZALCJHB 121 (8 April 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR 2413/10
In the matter between:
PSA OBO
LETSOALO Applicant
And
COMMISIONER M K MALEMA
N.O First
Respondent
GPSSBC
GAUTENG Second
Respondent
DEPARTMENT OF HOME
AFFAIRS Third
Respondent
Heard: 13
September 2013
Delivered: 08 April
2014
Summary:
Application to review –The arbitration award reviewable- the
Commissioner committed a material
errors of law and facts.
Commissioner is ruling to appreciate the provisions a section 18(6)
of the Immigration Act considering
condonation for the late filing of
the extinction of residence and work permit, by the Applicant
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This
is an application to review and set aside the arbitration award of
the first respondent (the arbitrator) made under case number
GPBC675/2010 dated 2 August 2010. The applicant filed the review
application because he was unhappy with the finding of the arbitrator
that his dismissal was fair and accordingly, dismissed his alleged
unfair dismissal claim.
Background facts
[2]
The
applicant, Mr Letsoalo at the time of his dismissal, was employed as
a senior administrative officer, responsible for adjudicating
applications for work permits of foreign citizens including
consideration of the extensions thereof. The applicant was accused
of
wrongfully approving the extension of the work permit of Mr Patel,
who is of Indian nationality. The allegation was that he
failed to
follow the prescribed procedures in dealing with the extension of the
work permit of Mr Patel. In the alternative, the
applicant was
charged with prejudicing the administration and discipline of the
third respondent.
[3]
It
is common cause that the applicant received an application for an
extension of the work permit from Mr Patel. Mr Patel had previously
received a work permit which had expired. His reason for the late
application of the extension of the work permit was based on
health
reasons.
[4]
The
applicant was found guilty and dismissed from the employ of the third
respondent on 11 August 2009. Being unhappy with the outcome
of the
disciplinary hearing, the applicant referred the matter for
conciliation and subsequently to arbitration. The outcome of
the
arbitration award was that the dismissal was for a fair reason.
The arbitration award
[5]
The
Commissioner based his conclusion that the dismissal of the employee
was for a fair reason on the following findings:
‘
18.1
This case is an arbitration case and therefore is a
de
novo
hearing on the facts supporting
either party’s case. The applicant must prove that his handling
of Mr Patel’s application
was a proper in the circumstances,
and this is where the applicant encountered serious difficulties.
18.2
Mr Patel’s so-called original (existing) permit was extinct- as
having expired by the time an
application for its extension was made
or renewal was lodged. I find that it was not capable of being
renewed or extended.
18.3
The applicant mentioned his consideration of Mr Patel’s medical
reasons, but there has not been
evidence tendered of those medical
reasons on record.
18.4
In his consideration of that late application the, applicant failed
to observe prescribed procedures
as laid down in the regulations,
among the most important are those mentioned under paragraph 11.1
above.
18.5
There was undoubtedly confusion which in my view remains as to the
identity of the company or organisation
with which Mr Patel entered
into a contract of employment. The applicant has not cleared in his
case, and he just did not.
18.6
The purpose of the application for the extension of the wok permit
and the applicant’s reasons
for approval that application was
mutually destructive in respect of the company or organisation with
which Mr Patel intended to
take up employment.
18.7
There has also been a material omission by the applicant to tender
evidence of his consideration if
ever, of those documents which he
insist were required to be attached to the application in spite of
the fact that they had to
be considered in handling the application.’
[6]
The
arbitrator further found that because the initial permit had expired
at the time the application for the extension of the permit
was made,
Mr Patel was an illegal immigrant and therefore his permit “was
no longer capable of renewal or extension.”
Furthermore, the
arbitrator found that Mr Patel’s application did not “satisfy
the requirements of the Government Gazette
No 27725,” in that
the following information was amongst others not provided in the
application for the extension of the
temporary permit:
a.
Medical
and radiology report
b.
Contract
signed by both applicant and the employer
c.
Original
advertisement of the job in the national media
d.
List
of shortlisted candidates for the interview
e.
Proof
of the registration of the employer with the Registrar of Companies.
Grounds of review
[7]
The
applicant contends that the arbitrator ignored his evidence regarding
the medical reasons provided by Mr Patel and also the
evidence of the
respondent’s witnesses who testified that, had the application
been brought before them, they would have
also approved the extension
of the work permit.
[8]
The
applicant further contends that the arbitrator, in arriving at his
conclusion, failed to appreciate the provisions of regulation
18 (6)
(a) of the Immigration Act which makes provision for condonation of
the late application for an extension of the work permit
by a senior
administrative officer.
[9]
In
the supplementary affidavit, the applicant contends that the
arbitrator, in arriving at the conclusion that his dismissal was
fair, applied an incorrect test of the onus of proof. It is also
contended by the applicant that no reasonable decision maker could
have arrived at the decision reached by the arbitrator. It is
contended in this regard that the arbitrator incorrectly analysed
the
evidence which was placed before him.
The third respondent’s
case
[10]
The
case of the third respondent as per the testimony of its main witness
and senior adjudication officer, Ms April, at the arbitration
hearing, was that Mr Letsoalo ought to have rejected Mr Patel’s
application as at the time the application was made he (Mr
Patel) was
already an illegal immigrant. The third respondent further contended
that the permit should not have been extended because
Mr Patel did
not attach all the relevant documentation as required by the law.
[11]
The
third respondent further contended that the application should have
been rejected because Mr Patel was being employed by a different
company to the one mentioned in the initial application for which the
temporary permit was granted. The contention, in this regard,
is that
the permit was granted on the basis that Mr Patel would be working
for Bhatiya Import and Export CC but the extension was
sought for the
purposes of taking employment with Internet Cellular.
The case of Mr
Letsoalo
[12]
The
first witness in support of Mr Letsoalo’s case was Mr Mtsweni
who testified that Mr Patel had in the initial application
attached
all the relevant documentation required by the law. According to him,
it was not necessary to attach the same when he
applied for the
extension of the permit because that documentation could, if needed,
be retrieved from the file.
[13]
Mr
Letsoalo in support of his case testified that the first thing that
he noted when he received Mr Patel’s application was
that the
initial permit had expired. It was for that reason that he summoned
him to the office to enquire about the reason for
the delay in filing
the application. The other reason for calling him to the office was
to enquire as to whether he was still working
for the same company
whose name was on the initial application.
[14]
Mr
Patel denied having resigned from Bhatiya and stated that he was
still employed by the same company. As concerning the reason
for the
delay in filing the application for the extension of the permit, Mr
Patel stated that it was because of “medical
reasons.” It
was for that reason and the fact that the delay was only eight days
that Mr Letsoalo condoned the late filing
of the application and
thereafter granted the extension.
Evaluation
[15]
It
is now well established that the test to apply when considering
whether to review an arbitration award is that of a reasonable
decision maker which entails enquiring into whether the decision
which is the subject of the review is one that a reasonable decision
maker could not have reached.
[1]
[16]
In
the present instance, the decision reached by the arbitrator is, with
due respect, unreasonable for two main reasons. The first
concerns
the test he adopted in dealing with the issue as to who has onus to
proof the fairness of the dismissal. The second reason
which is
closely related to the first has to do with the approach the
arbitrator adopted in dealing with the facts, the circumstances
and
the legal issues relating to the misconduct for which Mr Letsoalo was
accused of having committed.
[17]
It
is trite that in dismissal for misconduct cases the onus to show that
the dismissal was for a fair reason rests with the employer
and not
the employee.
[2]
What the
employee has to prove is that he or she was dismissed. The issue of
dismissal was common cause in the present instance.
[18]
It
is apparent from the reading of the arbitration award that the
arbitrator in the present instance placed the onus on the employee,
Mr Letsoalo, to proof that his dismissal was unfair. In this respect,
the arbitrator as indicated above found that Mr Letsoalo,
had to
prove that he had handled the application for the extension
properly.
[19]
The
arbitration award stands to be reviewed for the above reason alone.
It further stands to be reviewed also because the arbitrator
misconceived in a fundamental manner the issue he had to deal with
and consequently committed both material errors of facts and
the law.
[20]
The
key issues which the arbitrator had to determine relate to the
following:
a.
The
powers of Mr Letsoalo to adjudicate applications for work permits
and if he had;
b.
Whether
he exercised his powers properly in relation to:
i.
considering
and granting condonation for the late filing of the application to
extend the temporary permits,
ii.
considering
the extension of the application without the documentation required
by regulation 6.5 of the Regulations.
[21]
The
grounds upon which Mr Letsoalo could have been found guilty of the
charges against him were if the answers to the above were
in the
negative. It has not been disputed that Mr Letsoalo had the power
prior to his dismissal to consider applications for work
permits
including condonation for the late filing of such applications. The
power to consider condonation for the late filing of
the extension of
work permits is derived from regulation 18(6) which reads as follows:
‘
A
foreigner who is in the Republic and applies for a change of status
or conditions relating to his or her temporary residence permit,
or
for an extension of the period for which the permit was issued, shall
submit his or her application at least 30 days prior to
the date of
expiry of that permit: Provided that –
a)
In
the case of a permit issued for less than 30 days; or
b)
Where
such foreigner failed to comply with this sub-regulation, the
application shall only be accepted within the validity period
of the
permit and upon the foreigner having demonstrated to the satisfaction
of the Director General that good cause exists for
acceptance of the
late application.’
[22]
In
relation to the submission of the documentation when applying for the
extension of the permit, sub-regulation (5) reads as follows:
‘
(5)
An application is not required to submit documents that is already in
the possession of
the Department and which can be retrieved or copied
from the records of the Department.’
[23]
One
of the reasons for finding Mr Letsoalo guilty of failing to comply
with the provisions of the regulations was that he considered
the
application without the documentation referred to in the regulations.
In this regard, with due respect, the arbitrator failed
to apply his
mind to the facts and the law.
[24]
The
essential fact which was common cause was that the documentation in
question was attached in the initial application and therefore
in law
Mr Patel was not required to attach same in the application for
extension. The law also gave Mr Letsoalo the discretion,
as the
administrative officer responsible for considering application of
this nature, to process the extension applications without
requiring
production of the documentation in question. It is apparent that in
exercising his discretion, as he was legally entitled
to, Mr Letsoalo
did not call for the documentation. This was the understanding of the
witnesses of both parties. Even Ms April
seems to have accepted
during cross examination that in a case of the renewal and applicant
does not serve to submit documentation
that is already with the
department.
[25]
The
other issue which the arbitrator failed to appreciate and accordingly
made a finding that no reasonable arbitrator could have
made,
concerns the condonation application itself. It is apparent from the
reading of regulation 18 (5) that an officer in the
position of Mr
Letsoalo has the power to grant condonation for the late filing of an
application to renew or extend the expired
permit.
[26]
Although
Ms April suggest that in her testimony that Mr Patel should have
submitted the letter to the director general stating the
reason for
the late filing of the application, it, firstly, has to be noted that
the testimony was contradictory in this respect.
She testified that
the application should not have been entertained because the initial
application had expired. In other words,
even if there were good
reasons for the late filing of the extension application, that
application on her version, should not be
entertained in law at all.
She later says that a letter should have been submitted to the
Director General seeking condonation
for the late filing of the
extension application.
[27]
It
is important to note that the regulations do not prescribe the manner
and the form for an application for condonation for the
late filing
of an application to renew or extend an expired permit. It is
also important to note that it was not the case
of the Department
that Mr Letsoalo did not have the power to condone the late filing of
the renewal one of the permit.
[28]
In
my view, had the arbitrator appreciate that the issue that he was
dealing with, he would do found that the approach adopted by
Mr
Letsoalo in dealing with Mr Patel’s application was in line
with the broad principles adopted by the Courts and other
dispute
resolution bodies whenever confronted with an application for
condonation for non-compliance with the timeframes set out
in the
law.
[29]
The
arbitrator seems to suggest in his finding that Mr Letsoalo did not
apply his mind properly in considering the condonation in
that “there
has not been evidence tendered of those medical reasons on the
record.’’ There is nothing in the
Act or the regulations
that requires a medical certificate to be attached when applying
for condonation for the late
filing of an extension or renewal
of the permit.
[30]
It
is apparent that Mr Letsoalo granted condonation on the basis that he
found the explanation for the delay to have been acceptable
and
reasonable and also that the duration of the delay was not excessive.
It has to be noted in this regard that the department
did not make
case during the arbitration proceedings that the
condonation was granted for illegal or ulterior motives.
[31]
There
is a suggestion in the departments answering papers that the case of
Mr Letsoalo came about because of the investigation which
was
conducted in the Pretoria and Tzaneen offices. This evidence was
never placed before the arbitration proceedings and therefore
deserves no consideration in this review application.
Conclusion
[32]
As
indicated above, the arbitrator committed errors of law and fact in
arriving at the conclusion that Mr Letsoalo was guilty as
charged. In
law, in the first instance Mr Letsoalo had the authority to consider
applications for work permits, the extensions
of the period thereof
including granting condonation where the application for the
extension is late. Secondly, he also in law
had the authority to
consider applications for extension of permits without calling for
documentation submit in the initial application.
[33]
In
summary, the facts which are undisputed are: Mr Patel was granted a
temporary work permit. He was late in applying for its extension.
He
was called into the offices of the department after submitting his
application for the extension of the permit by Mr Letsoalo
to enquire
as to the reason for late application. It is apparent that Mr
Letsoalo was satisfied with the explanation and accordingly
granted
the extension of the permit and did so without requiring him (Mr
Patel) to submit documents which he had submitted in the
initial
application.
[34]
It
is for the above reason that I find that the decision reached by the
arbitrator is one which no reason decision maker could have
reached.
A reasonable decision maker taking into account the provisions of the
law, the facts and the circumstances of this case
could have found
that the dismissal of Mr Letsoalo was substantively unfair.
[35]
In
light of the above, I find that the applicant has made out a case
warranting interference with the arbitrator’s arbitration
award. I see no reason why costs should follow the results.
Order
[36]
In
the premises, the following order is made:
1.
The
arbitration award made under case GPBC675/2010 dated 2 August 2010,
is reviewed and set aside.
2.
The
arbitration award is substituted with an order to the effect that:
i.
The
dismissal of Mr Letsoalo was substantively unfair.
ii.
The
third respondent is ordered to reinstate Mr Letsoalo retrospective to
the date of his dismissal without loss of any benefit.
3.
The
third respondent is to pay the costs of the applicants.
_______________
Molahlehi, J
Judge
of the Labour Court of South Africa
Appearances:
For the Applicant:
Advocate
P Kirstein
Instructed
by:
Couzyn,
Hertzog & korak Attorneys
For the Respondent:
Advocate M Gumbi
Instructed
by:
State
Attorneys
[1]
See
Sidumo
and Another v Platinum Mines Ltd and Others
2008 (2) SA 24
(CC) at para 110 and
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) and
Others
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at para 13
.
[2]
Section
192 of the LRA which reads as follows: ‘(1) In any proceedings
concerning any dismissal, the employee must establish
the existence
of the dismissal. (2) If the existence of the dismissal is
established, the employer must prove that the dismissal
is fair.’