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[2014] ZALCJHB 142
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Phoku v Telkom SA Ltd and Others (JR506/13) [2014] ZALCJHB 142 (29 April 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT
REPORTABLE
CASE
NO JR 506/13
In
the matter between:
THADISHE
PHOKU APPLICANT
and
TELKOM
SA
LTD 1
ST
RESPONDENT
L
NOWOSENETZ
NO
2
ND
RESPONDENT
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
3
RD
RESPONDENT
Date
heard: 25 April 2014
Judgment
delivered: 29 April 2014
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside a ruling made by the
srcond respondent (the commissioner). In his ruling, the
commissioner
refused to condone the late referral of the applicant’s unfair
dismissal dispute to the CCMA.
[2]
The material facts are not in dispute. The applicant was dismissed in
2008. On 25 June 2008, he referred a dispute to this court
in
circumstances where there had been no prior referral of the dispute
to the CCMA. The matter proceeded court to the point of
trial where
the jurisdictional point (i.e. that there had been no referral to
conciliation as required by s 191 of the LRA) was
upheld. During the
course of this litigation, until 7 February 2013, the applicant was
represented by an attorney. The terms of
the order granted on 7
February 2013 were that the proceedings should be stayed until such
time as the matter had been referred
to the CCMA for conciliation.
The applicant was further directed to file such an application.
[3]
On 9 February 2013, the applicant filed an application in the CCMA
seeking condonation for the late referral of his dismissal
dispute.
In the application, the applicant recorded that the matter had been
referred late on account of the erroneous direct referral
of the
dispute to this court. In relation to his prospects of success, the
applicant stated that he had been dismissed without
the proper
procedure having been followed and his prospects were “very
high”. It does not appear that the first respondent
in these
proceedings filed any affidavit opposing the application for
condonation. However, handwritten notes made by the commissioner
indicate that the application was indeed opposed. In his ruling, made
on for March 2013, the commissioner recorded the reasons
for the late
referral of the dispute and the applicant’s prospects of
success. He found that the reason for the late referral
was
unreasonable in that the applicant had been legally represented and
had failed to show good cause why the referral was not
made
timeously. In regard to the prospects of success, the commissioner
noted that the existence of the dismissal had been placed
in dispute
and in regard to prejudice, the commissioner found that the first
respondent would be prejudiced by the granting of
condonation since
material witnesses would no longer be available to testify at any
arbitration hearing. The application for condonation
was accordingly
refused.
[4]
The lead basis on which this court is entitled to interfere with the
commissioner’s decision is limited. This court is
entitled to
intervene if and only if the decision to which the commissioner came
was so unreasonable that no reasonable decision
maker, having regard
to the available material, could have come to that decision. This
court is not entitled to interfere only
because it considers that the
commissioner’s decision was wrong. In addition, it is
incumbent’s on an applicant in
an application such as the
present to articulate properly his or her grounds for review. These
must obviously set out on the basis
on which the applicant contends
that the decision under review fails to meet the reasonableness
threshold.
[5]
In his founding affidavit, the applicant does not directly attack the
reasonableness of the commissioner’s decision. Rather,
he
contends that the decision was wrong. In relation to the
commissioner’s point concerning legal representation, the
applicant
avers that he was not legally represented when the
jurisdictional point was argued in this court. That may be so, but a
reading
of the commissioner’s ruling indicates that throughout
the course of the litigation process, and in particular when the
matter
was referred to this court without a prior referral for
conciliation and to the point of the pre-trial conference, the
applicant
had been assisted by an attorney. I do not understand the
applicant to contest this. The applicant’s legal representative
was fully aware of the jurisdictional point that had been taken by
the first respondent; indeed, it is specifically recorded in
the
pre-trial minutes signed by the applicant’s attorney. In
relation to the prospects of success, the applicant contends
that the
first respondent had failed to produce evidence of what it averred
was a mutual separation agreement, i.e. the basis on
which it
contended that the applicant had no prospects of success. While it is
true that no written agreement was produced, this
is not necessarily
definitive. The applicant’s real complaint appears to be
captured in paragraph 3.3 of his founding affidavit
where he contends
that the dismissal occurred during the course of the implementation
of an order for reinstatement previously
granted by this court and
that for that reason, he deemed it appropriate to refer the dispute
directly to this court. The applicant’s
view, however genuinely
it may have been held, was simply wrong. Whether the mistake made by
the applicant is in itself a basis
on which condonation ought to be
granted is clearly a matter that the commissioner reflected upon. As
I have indicated, the test
is not whether the commissioner was wrong;
what matters is that his decision was one to which a reasonable
decision-maker could
come on the evidence. What weighed with the
commissioner was the excessive period of the delay. When the
application for condonation
was filed, the period of delay was some
four years and nine months. The delay was clearly inordinate and
served to outweigh any
factors that were to the applicant’s
advantage. One of the fundamental principles underlying the LRA is
the expeditious and
efficient resolution of disputes. This objective
would be wholly undermined if applications for condonation were to be
granted
in circumstances such as the present, where through ignorance
or bad advice, employees fail to make proper referrals (or, as in
this case, make any referral at all) and then seek condonation years
later. In the present instance the applicant had, for at least
a
significant period of the litigation process, the assistance of an
attorney. The applicant’s attempt to cast the bulk of
the blame
on him, however reprehensible the conduct of the attorney may have
been, weighed heavily with the commissioner.
[6]
When regard is had to the evidence observed before the commissioner,
even the applicant’s version, I am not persuaded
that the
decision made by the commissioner falls outside of a band of
decisions to which reasonable person could come. The application
to
review and set aside the commissioner’s ruling therefore stands
to be dismissed.
[7]
In relation to costs, Mr Mosebo, who appeared for the first
respondent, charitably did not pursue any order for costs as against
the applicant.
For
these reasons, I make the following order:
1. The
application is dismissed.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the applicant: In person
For
the first respondent: Mr P Mosebo, Maserumule Inc.