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[2014] ZALCPE 20
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Mkokeli v Commission for Conciliation, Mediation and Arbitration and Others (P548/12) [2014] ZALCPE 20 (30 July 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
No: P548/12
In
the matter between:
MAXWELL
MKOKELI. Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
First
Respondent
COMMISSIONER
THERESA
MALGAS Second
Respondent
IBI
EASTERN
CAPE Third
Respondent
Heard:
1 August 2013
Delivered:
30 July 2014
Summary:
The commissioner’s failure to apply the correct legal
principles for the determination of a condonation
application may
result in an unreasonable condonation ruling which is susceptible to
review.
Review
of a condonation ruling.
JUDGMENT
LALLIE,
J
Introduction
[1]
This is an application to review and set aside a ruling of the second
respondent (“the commissioner”) refusing the
applicant’s
application for condonation of the late referral of his unfair
dismissal dispute to the first respondent.
Factual
background
[2]
The applicant was employed by the third respondent. He was dismissed
for misconduct on 23 July 2012 and referred an unfair dismissal
dispute to the first respondent on 3 October 2012. As his dispute was
referred outside the 30 day period prescribed in section
191(2) of
the Labour Relations Act 66 of 1995 (‘the LRA’) he
applied for condonation using the first respondent’s
standard
from. The hearing of the condonation application was scheduled for 30
October 2012 in Humansdorp. Pursuant to listening
to arguments, the
commissioner issued the ruling, the applicant seeks this court to
review and set aside.
The
condonation ruling
[3]
In her ruling, the Commissioner relied on
National
Union of Mine Workers and Others v Western Holdings Goldmine
[1]
where it was held that the factors to be considered in determining
whether the applicant has shown good cause for condonation are
the
period of the delay, the explanation for the late referral, the
applicant’s prospects of success, the importance of the
case,
and the balance of prejudice. She added that as a commissioner she
was obliged to be fair to both parties. She further relied
on
Mziya
v Putco Ltd
[2]
where it was held that:
‘…
There
is a further principle which is applied and that is that without a
reasonable and acceptable explanation for the delay, the
prospects of
success are immaterial, and without prospects of success, no matter
how good the explanation for the delay, an application
for
condonation should be refused’.
[4]
The commissioner found that the referral was late by 41 days. She was
not satisfied with the applicant’s explanation for
the delay
that he had faxed a letter of appeal to the third respondent and
decided to approach the first respondent when he received
no
response. She took into account the third respondent’s
submissions that the reason for the delay was unreasonable as the
applicant was aware of the 30 days’ requirement as he had
lodged disputes with the first respondent in the past. She was
convinced that the applicant did not pursue his matter diligently.
The applicant was found not to have furnished enough explanation
from
the date of his dismissal to the date of the referral of his dispute
to the first respondent.
[5]
The applicant submitted that he had good prospects of success as his
appeal was neglected. The commissioner accepted the third
respondent’s version that the applicant was charged with and
found guilty of serious acts of misconduct and had valid warnings
on
dismissal. She found nothing unusually important about the matter but
expressed the view that it was important to the parties.
She made no
finding on the issue of prejudice and dismissed the application.
Grounds for review
[6]
The applicant submitted that the commissioner committed gross
irregularities by unreasonably failing to apply her mind to relevant
evidence. She failed to attach weight to the applicant’s
evidence and failed to play an inquisitorial role to determine
whether the applicant’s version was plausible. The Commissioner
consequently reached an irrational conclusion. The commissioner
unreasonably concluded that he lacked prospects of success as a
result of her failure to apply her mind to his evidence. She failed
to apply the relevant legal principles for determining condonation.
[7]
The third respondent denied the existence of valid grounds to review
and set aside the award and submitted that the applicant
sought to
rely on evidence which was not tendered before the commissioner.
[8]
In determining the review application, I am enjoined to consider
whether the decision the commissioner reached is a decision
a
reasonable decision maker could not reach on the evidence before the
commissioner. See
Sidumo
and Another v Rustenbergurg Platinum Mines Ltd and Others
[3]
.
I am further required to establish whether the commissioner dealt
with the primary issue, considered the matter before her and
reached
a reasonable decision. See
Goldfields
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
[4]
.
Part of this test includes establishing whether the commissioner
applied the correct legal principles in reaching the decision
which
is the subject of the review.
[9]
The commissioner could grant condonation had the applicant shown good
cause as envisaged in section 191 (2) of the LRA. The
application of
the relevant legal principles in determining whether good cause was
shown is therefore relevant in determining this
application. In
Siegelaar
v Minister of Safety and Security
[5]
the Court dealt with condonation as follows:
‘
[35] In
other words, in determining whether the delay in bringing the
proceedings is unreasonable the court is obliged to exercise
a
judicial discretion taking into account all the relevant
circumstances. Guidance can also be sought from cases dealing with
applications for condonation for special leave to appeal. In
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others
[6]
the Constitutional Court stated:
‘
This court
has held that an application for leave to appeal will be granted if
it is in the interests of justice to do so and that
the existence of
prospects of success, though an important consideration in deciding
whether to grant leave to appeal, is not the
only factor in the
determination of the interests of justice. It is appropriate that an
application for condonation be considered
on the same basis and that
such an application should be granted if that is in the interests of
justice and refused if it is not.
The interests of justice must be
determined by reference to all relevant factors, including the nature
of the relief sought, the
extent and cause of the delay, the nature
and cause of any other defect in respect of which condonation is
sought, the effect on
the administration of justice, prejudice and
the reasonableness of the applicant’s explanation for the delay
or defect.’
[36] In other words, the interests of
justice are a central consideration in deciding whether to grant
condonation for an unexplained
delay. So too is the observance of
appropriate standards in the administration of justice. Applications
for condonation must be
properly made in the appropriate manner in
order to ensure they can be effectively adjudicated’.
[10]
The commissioner found that the applicant did not furnish enough
explanation for the lateness of his referral. She considered
the
applicant’s version that he faxed a letter of appeal to the
respondent and after he received no response he decided to
approach
the CCMA. Although the commissioner was required to give brief
reasons for decision she had a duty to do more than just
state the
applicant’s version. Section 191 (1) (b) of the LRA requires a
referral to be made within 30 of the date of dismissal
or within 30
days of the employer making a final decision to dismiss or uphold the
dismissal. The outcome of an appeal falls within
the realm of making
a final decision to dismiss or uphold a dismissal. When the applicant
faxed a letter of appeal, he expected
the employer to deal with his
appeal and decide whether to dismiss or uphold it. The 30 day period
would have started from the
date of the outcome of the appeal. The
third respondent’s submissions that the commissioner considered
to the effect that
the applicant was aware that he should have
referred his dispute within 30 days as he had lodged several
disputes with the
first respondent in the past does not deal with the
issue of waiting for a response to the letter of appeal. The
Commissioner could
not reasonably reach the conclusion that she was
not satisfied with the applicant’s explanation for the delay
without dealing
with the issue of the appeal.
[11]
In reaching the finding that the applicant had no prospects of
success, the commissioner considered that the applicant was
found
guilty of serious charges which were detrimental to the third
respondent and destroyed the relationship of trust. She also
took
into account the applicant’s warnings for similar misconduct
which were still valid on dismissal. The test for prospects
of
success goes further than the gravity of the misconduct which led to
an employee’s dismissal and his or her disciplinary
record. In
determining whether the applicant had prospects of success, the
commissioner should have considered whether the applicant
had made
averments which could have resulted in his success if proved. The
applicant submitted that his appeal was neglected and
the accusations
against him were not proved at the disciplinary hearing. The
applicant phrased his prospects of success as follows
‘
My
appeal was neglected and no proof was given to me on my hearing to
prove their accusations
’
.
The applicant is a lay person. The only reasonable inference which
can be drawn from his submission is that the third respondent
failed
to discharge the onus of proving his guilt at the disciplinary
hearing. In the event of the third respondent’s failure
to
discharge the onus of proving that the applicant committed the acts
of misconduct he was dismissed for, the applicant could
be
successful.
[12]
The Commissioner did not deal with the issue of prejudice at all. The
interests of justice are the over-arching principle in
condonation
applications and require that all relevant factors be considered.
When the award is considered in its totality, it
shows that the
commissioner committed gross irregularities which rendered her award
reviewable. The Commissioner failed to apply
the test for condonation
correctly and made omissions which led her to reach an unreasonable
conclusion on the condonation application.
She failed to deal with
the evidence on the reasons for lateness leading her to conclude that
the applicant provided no reasonable
explanation for the delay. Her
failure to apply the correct test for prospects of success led her to
conclude that the applicant
had none. Her ruling did not stand the
test for review.
[13]
In the premises, the following order is made:
13.1
The condonation ruling issued by second respondent under case number
ECPE 4345-12 is reviewed and set aside.
13.2
The matter is remitted to the first respondent for the condonation
application to be determined
de
novo
by a
commissioner other that the second respondent.
_______________________________
Lallie J
Judge
of the Labour Court of South Africa
APPEARANCES
For the
Applicant:
Mrs Van
Staden of the Justice centre
For
the Respondent:
Mr Unwin of Chris Unwin Attorneys
[1]
(1994) 15
ILJ
610 (LAC)
[2]
[2002] ZACC 30
;
[1999] 2 BLLR 103
(LAC) at para 10.
[3]
2008 (2) SA 24 (CC).
[4]
[2014] 1 BLLR 20 (LAC).
[5]
(2005) 26
ILJ
133 (LC) at 143 C-G
[6]
[2000] ZACC 3
;
2000 (2) SA 837
(CC)