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[2014] ZALCJHB 173
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Mathobela v Commission For Conciliation Mediation And Arbitration and Others (JR1152/12) [2014] ZALCJHB 173 (13 May 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT REPORTABLE
CASE
NO: JR 1152/12
In
the matter between:
LOUISAH
EMILY MATHOBELA
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
First
Respondent
COMMISSIONER
E HARMSE.
Second
Respondent
QUINTILES
CLINDERPHARM (PTY) LTD
Third
Respondent
Heard:
09 January 2014
Delivered:
13 May 2014
Summary: Commissioner
failing to address the need for condonation with regard to third
respondent’s late filing of answering
affidavit. Commissioner
misunderstanding what an inquiry into prospects of success entails.
Ruling set aside.
JUDGMENT
NAIDOO
AJ
Introduction
[
1]
This is an application to review and set aside the second
respondent’s (Commissioner) ruling under case number GATW
271-12,
delivered on 30 March 2012 wherein the applicant’s
condonation application was dismissed.
[2]
The applicant first sought condonation for the late filing of its
supplementary affidavit. The third respondent did not persist
in
opposing condonation. Having regard to the relevant legal principles
I am of the view that it would be in the interest of justice
that
condonation under these circumstances be granted.
Background
[3]
The applicant was dismissed for reasons relating to incapacity on 20
January 2012 and referred an unfair dismissal dispute to
the first
respondent on 23 February 2012. The first respondent set the matter
down for an in
limine
hearing, heard on 28 March 2012.
[4]
The matter came before the commissioner who delivered a ruling, dated
30 March 2012, dismissing the applicant’s condonation
application. It is this ruling that forms the subject matter of these
proceedings.
[5]
A relevant portion of the letter advising the applicant of her
dismissal reads;
‘
The
dismissal will be effective from 20 January 2011(termination date).
You will be paid for one month
in lieu
of notice and this payment together with any other monies due to you
will be paid to you by 29 February 2012.’
Condonation
hearing
[6]
At the hearing the applicant’s representative raised the point
that the third respondent’s opposing answering affidavit
was
filed fourteen days (14) outside the prescribed time period. The
third respondent’s representative took the view that
on a
reading of the first respondent’s rules, more specifically Rule
31 (5) (a), there is no obligation on it to file its
answering
affidavit when opposing the applicant’s condonation
application. In the alternative the representative argued that
condonation should be granted under the circumstances.
[7]
In explaining why the applicant was late in filing her dispute, the
applicant’s representative argued that it was initially
taken,
from a reading of the letter of dismissal, that the applicant’s
date of dismissal was 29 February 2011, in which they
would need to
refer the applicant’s dispute on or before 29 March 2011. The
applicant and attorney worked on this premises
until such time as
they realised the date of dismissal was 20 January 2011, after which
the applicant immediately filed her dispute
with the first
respondent.
[8]
With regard to the issue of prospects of success the applicant argued
that the third respondent failed to examine whether her
duties could
be adapted to accommodate her illness, failed to examine alternative
positions before dismissing her and further failed
to act
consistently in that the third respondent accommodated other
employees whose health effected their ability to perform their
duties.
Ruling
[9]
In her ruling, the commissioner acknowledges the
in limine
raised by the applicant but went further to find that Rule 31(10),
allowed her to deal with the process in a manner she deemed
fit and
on the strength of this, stated that she would allow the third
respondent’s representative to make oral submissions
as to why
it was late in filing its answering affidavit.
[10]
As to the reason for delay, the commissioner notes that the applicant
was three (3) days late in referring her dispute and
that while such
delay was not excessive, she did not accept the reason tendered as
one that is reasonable. On this point the commissioner
states that
she was not persuaded by the misinterpretation relied upon by the
applicant’s representative. The letter of dismissal,
according
to the commissioner, clearly stated that the applicant was dismissed
on 20 January 2012 and further goes on to advice
the applicant that
she had thirty days from such date to refer her matter to the first
respondent. In addition the applicant had
been duly represented by an
attorney before her dismissal and as such should have been advised of
the prescribed time period in
which to refer her matter. From this
assessment the commissioner found the applicant had not vigorously
perused her case.
[11]
Addressing the issue of prospects of success, the commissioner
records that the applicant worked 19 years in the position she
was
dismissed from, yet it was the conditions associated with this
position which were not conducive to her health. The commissioner
further accepts that while the third respondent held an incapacity
hearing, which spanned over a number of days and took into account
various medical reports on the applicant’s health, there was no
alternate position it could have placed the applicant in
and for
these reasons the applicant had failed to establish a prima facie
case.
Grounds
on review
[12]
The applicant attacks the commissioner’s findings on two
grounds;
(a)
Firstly in the absence of the third respondent making out an
application for condonation, the
commissioner should not have
considered its evidence and should have continued the matter on the
basis that its application for
condonation remained unopposed.
(b)
The second ground attacks the commissioner’s finding on the
issues of reason for delay
and prospects of success. The applicant
argued the commissioner was unreasonable not to have accepted her
reason for delay and
committed a gross misconduct in finding the
applicant approached the matter in a dilatory manner when there was
no proof to this
effect before the commissioner. On the issue of
prospects of success, the commissioner took it upon herself to decide
the merits
of the matter which she was not called to do. Furthermore,
the applicant raised arguments which remained unchallenged and if
established
at arbitration, would render her dismissal unfair. For
this reason the applicant argues she did establish a prima faci case
before
the commissioner.
Evaluation
[13]
While the applicant is correct in that a party opposing a condonation
application must file an answering affidavit within fourteen
days of
receiving the application, the first respondent’s Rule 31(10)
does allow a commissioner to deal with an application
in a manner he
or she deems fit. In this case the commissioner found that she could
hear oral submissions with regard to the late
filing of the third
respondent’s answering affidavit. I cannot fault the
commissioner for taking this view. In terms of s138
of the LRA, a
commissioner must conduct proceedings in a manner that gives effect
to the primary objectives of the LRA that being
an effective
resolution of labour disputes. Had the commissioner not adopted this
view she would have had to postpone proceedings,
allow the third
respondent to file its condonation application, give the applicant an
opportunity to oppose same and only then
the matter would be ripe for
hearing. It cannot be said that this option would lend credence to
the aforementioned objective of
the LRA.
[14]
However, on a reading of the transcript, it is clear that despite the
commissioner adopting the approach described above, she
failed
thereafter to address the issue of the third respondent’s
condonation. The transcript nor the commissioner’s
award makes
no reference to why the third respondent was late in filing its
answering affidavit, or any other further consideration
associated
with a condonation application. Her failure to do so meant that the
third respondent’s submissions were not properly
before her. A
commissioner cannot simply dispense with the requirements of
condonation, especially if it was an issue raised by
one of the
party’s.
Reason
for delay
[15]
It is trite that this court, on review, should guard against
substituting its own findings on the evidence that was before
a
commissioner but rather to assess whether the commissioner’s
finding falls within the ambit of what is considered reasonable.
The
commissioner did not consider the applicant’s reason for delay
as plausible. She found the letter of dismissal clear and
unambiguous
in relation to the date of dismissal. Further to this, the
commissioner took into consideration the fact that the applicant
was,
at all material times, being assisted by an attorney. While I might
not agree with the commissioner’s findings on this
point, I am
nevertheless not of the view that no other commissioner, acting
reasonably, would not come to the same conclusion on
this issue.
Prospects
of success
[16]
In
SA
Democratic Teachers Union v Commission for Conciliation, Mediation &
Arbitration & others
[1]
(2007) 28 ILJ 1124 (LC) the court said;
‘
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. The applicant need not deal fully
with the
merits of the case
[17]
In considering the applicant’s prospects of success the
commissioner was faced with a dispute of fact on material issues,
amongst these were whether the third respondent investigated
alternate positions to place the applicant in and whether the
applicant’s
duties could have been accommodated in
consideration of her health. Having only the submissions of each
party before her, the commissioner
accepted the third respondent’s
version in finding the applicant had no prospects of success. The
commissioner was not required
to make this determination.
In
addition, the applicant’s argument before the commissioner
included the allegation that the third respondent had in the
past
accommodated other employees under similar circumstances as what the
applicant found herself in. This remained unchallenged.
Having
regard to the principle laid down in SA Democratic Teachers Union
(supra
) it
is clear that the averments made by the applicant, if established
would have entitled her to the relief claimed. In light of
the
factual dispute an arbitrator would have been better placed to deal
with these issues at arbitration. It is clear that the
commissioner
did not understand what was required of her when determining whether
or not the applicant had any prospects of success.
[18]
I am satisfied that the irregularities committed by the commissioner
with regard to her failure to address the third respondent’s
need for condonation and in dealing the issue of prospects of
success, has a direct bearing on the reasonableness of her ruling.
For these reasons, it becomes necessary to set aside the
commissioner’s ruling. There is sufficient information placed
before
this Court to further substitute the commissioner’s
ruling with a finding that condonation should be granted.
Order
[19]
In the premises the following order is made:
19.1
The applicant’s late filing of her supplementary affidavit is
condoned.
19.2
The second respondent ruling under GATW 271-12 is set aside and
replaced with a finding that the applicant’s
condonation
application be granted.
19.3
The first respondent is directed to set the matter down for
arbitration before a commissioner other than
the second respondent.
19.4
There is no order as to costs.
______________________________________
Moksha Naidoo
Acting
Judge of the Labour Court of South Africa
APPEARANCES
For
the Applicant: Pieter Strydom : Instructed by JJR Incorporated
For
the Respondent: Mr A Hinds
[1]
[1]
(2007)
28 ILJ 1124 (LC) at para 38