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[2015] ZALCJHB 146
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Industrial Development Corporation v Commission for Conciliation, Mediation and Arbitration and Others (JR523/13) [2015] ZALCJHB 146 (5 May 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR 523/13
DATE:
05 MAY 2015
Not
Reportable
INDUSTRIAL
DEVELOPMENT
CORPORATION
.............................................................
Applicant
And
COMMISSION
FOR CONCILIATION, MEDIATION
&
ARBITRATION
........................................................................................................
First
Respondent
NTHABISENG
PULE MANTSHULE
NO
............................................................
Second
Respondent
MSINGATHI
MACDOWELL
MYENGEZA
..........................................................
Third
Respondent
Heard:
16 April 2015
Delivered:
5 May 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
This is an opposed application to review and set aside a condonation
ruling issued by the second respondent (Commissioner) under
case
number GAJB 33476/12 and dated 5 March 2012. The applicant further
seeks an order that the matter be referred back to the
first
respondent for a hearing
de novo
before a commissioner other
than the second respondent, or alternatively, for the Court to
substitute the condonation ruling with
an order that condonation is
refused.
Background
[2]
The applicant is a National Development Finance Institution set up to
promote Economic Growth and Industrial Development. It
is owned by
the South African Government under the supervision of the Department
of Economic Development.
[3]
The third respondent was employed by the applicant as Senior Manager
– Project and Corporate Finance. During October 2012
he was
charged with acts of misconduct pertaining to causing the applicant
to incur fruitless and wasteful expenditure and breaching
his
employment contract. He was subsequently dismissed on 13 November
2012, and on 19 December 2012 referred a dispute to the first
respondent (the CCMA).
[4]
The dispute was scheduled for a con/arb hearing on 23 January 2013.
The applicant had lodged an objection to the con/arb process
and the
parties had appeared before Commissioner N Raffee. At those
proceedings, the applicant had objected to the jurisdiction
of the
CCMA in that the referral was lodged late and not accompanied by an
application for condonation. Commissioner Raffee had
agreed that the
referral that was lodged out of time, and had accordingly issued a
ruling to the effect that the third respondent
should apply for
condonation.
[5]
The third respondent had immediately and on the same day being 23
January 2013, filed an application for condonation. An
in limine
hearing was scheduled for 18 February 2013.
[6]
It was common cause that the applicant had not filed an opposing
affidavit, but had merely opposed the application from the
bar,
having been represented in those proceedings by an attorney. On 5
March 2013, the second respondent (Commissioner) had issued
a ruling
today effect that the third respondent’s late referral of the
dispute was condoned.
The
submissions made at the in limine hearing and the ruling:
[7]
The Commissioner had noted that the referral was late by six days,
and that the delay was minimal. Having taken into account
the
explanation given by the third respondent, the Commissioner held that
he should be given the benefit of the doubt as his actions
demonstrated that he always had an interest and intention of filing a
dispute. The Commissioner further took into account the third
respondent’s submissions in regard to the reason for his
alleged unfair dismissal and his allegations that a fair procedure
was not followed.
[8]
The Commissioner concluded that the third respondent had demonstrated
that he had reasonable prospects of success with his claim,
and that
the decision to condone the late referral would not prejudice the
applicant more than it would the third respondent as
he had shown
good cause.
The
Grounds of review:
[9]
The grounds of review were as follows;
9.1 The Commissioner
had committed gross irregularity and or misconduct and reached a
decision which was unreasonable and had therefore
committed a
reviewable irregularity in terms of the LRA.
9.2 The degree of
the delay in defending the dispute was 35 days, and therefore the
finding by the Commissioner that the delay was
only six days was
unreasonable and not supported by evidence. In this regard it was
argued that the finding failed to take into
account the principle
that the explanation for the delay should be fully made and should be
for the entire period until the application
for condonation is made.
On the grounds that the Commissioner had found that the delay was
only six days the ruling should be reviewed
and set aside on that
ground alone, as the Commissioner had failed to apply her mind to the
facts and/or the evidence before her.
9.3 The finding by
the Commissioner that the third respondent had prospects of
success was not supported by evidence, as he
did not submit any proof
to substantiate his allegations of the alleged unfair dismissal
despite his promises to do so. In this
regard it was submitted that
the Commissioner had made a speculative finding about prospects of
success, when none existed.
9.4 The Commissioner
failed to take into account that the granting of the condonation
would prejudice the applicant, and further
that the Commissioner
miscomprehended or ignored a further principle that without a proper
explanation for the delay the prospects
of success are immaterial.
The
legal framework:
[10]
The test to apply in a review application is that of a reasonable
decision maker
[1]
. The test
entails an enquiry into whether the decision reached by the
Commissioner is one that a reasonable decision maker could
not have
reached on the material placed before him. An application for
condonation is always equated to seeking an indulgence for
non-compliance with stipulated time frames. Whilst it is accepted
that condonation is not there for taking, in the end, its
consideration
involves the exercise of a wide discretion
[2]
.
[11]
In exercising a discretion, a Commissioner should take into account
all the relevant factors, and in particular, the well-established
legal principles set out in
Melane
v Santam Insurance Co. Ltd
[3]
,
where it was held that;
‘
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success and the importance of the case. Ordinarily these
facts are
interrelated, they are not individually decisive, save of course that
if there are no prospects of success there would
be no point in
granting condonation. Any attempt to formulate a rule of
thumb would only serve to harden the arteries
of what should be a flexible discretion. What is needed is an
objective conspectus
of all the facts. Thus a slight delay and a good
explanation may help to compensate prospects which are not strong. Or
the importance
of the issue and strong prospects may tend to
compensate for a long delay. And the Respondent’s interests in
finality must
not be overlooked”
[12]
Further legal principles to be taken into account in exercising the
discretion is that
an
application for condonation should be filed without delay as soon as
a party to litigation becomes aware of the need to file
such an
application
[4]
. To enable the
Commissioner or the court for that matter to properly exercise a
discretion, a party seeking condonation must set
out all the facts
and circumstances relating to the delay, and most importantly, must
provide a satisfactory explanation and account
for each period of the
delay. Any period of delay that is unaccounted for, may result in an
indulgence being refused
[5]
.
Evaluation:
[13]
In this case, and as already indicated, the application at the
in
limine
hearing was opposed from the bar, and it is accepted that
the Commissioner was enjoined by the provisions of Rule 31 (10) of
the
CCMA rules to determine the application in the manner that she
deemed fit.
The
extent of the delay and the explanation thereof:
[14]
The applicant took issue with the fact that the Commissioner did not
apply her mind to the actual extent of the delay in view
of the
referral having been lodged on 19 December 2012 when the dismissal
had taken place on 13 November 2012. In this regard,
it was contended
that after the third respondent’s dismissal, he was advised
immediately that his appeal would not be entertained
and that he
should refer a dispute to the CCMA. It was further pointed out that
the applicant was legally represented at the internal
disciplinary
enquiry and should thus have been aware of the time periods. Other
than the delay having been six days when the referral
was initially
lodged, it was argued that following the ruling of Commissioner
Raffee on 23 January 2013, at the time that the applicant
filed an
application for condonation, the referral was now 35 days out of
time, which delay the applicant had failed to give an
explanation to.
[15]
In explaining the delay, as considered by the Commissioner, the third
respondent had in his affidavit, apportioned blame on
the CCMA
officials who had advised him when he initially applied for
condonation after his dismissal that he had completed incorrect
condonation forms. From the record of proceedings, the applicant had
also informed the second respondent that after his dismissal,
he had
enquired from a Mr. Seema of the applicant as to what was the next
process he should follow, and this individual could not
give him an
answer. He had then made his own enquiries from the CCMA website and
had discovered condonation forms which he had
downloaded and
completed even though at the time he was not certain whether his
referral was late. Having handed in the forms at
the CCMA, he was
then informed that he had completed an incorrect form and was advised
that his referral was within the time periods.
This was after he had
also informed the CCMA officials of the date his internal appeal was
turned down. He was then informed to
complete the Form 7.11 which he
had done.
[16]
It was common cause that the third respondent had lodged an appeal on
16 November 2012. The applicant contends that on the
same date that
the appeal was lodged, the third respondent was informed that it
would not be entertained. The third respondent
however refuted this,
and contended that the response to his appeal was instead received on
20 November 2012. In this regard, he
had referred the Court to page
19 of the indexed pleadings, which was a response to his appeal via
e-mail from the applicant’s
Seema on 20 November 2012,
confirming that his appeal had been rejected.
[17]
It was nevertheless argued on behalf of the applicant that the date
on which the appeal is finalised does not change the date
of the
dismissal. This approach finds support in
Edgars
Stores Ltd v SACCAWU
[6]
,
where the Labour Appeal Court held that a dismissal dispute arose on
the date when the original dismissal was communicated to
the
employee, and confirmed in
SACCAWU
v Shakoane
[7]
.
It is doubted however whether this issue is settled in the light of
Zondo JP’s unanimous decision in
Fidelity
Guards Holdings (Pty) Ltd v Epstein & Others
[8]
where
he had quoted with approval, Pillemer AJ’s sentiments expressed
in
Fidelity
Guards Holdings (Pty) Ltd v Epstein & Others
[9]
in
the following terms:
“
It
seems to me to be absurd that an applicant who pursues an internal
appeal procedure would be precluded from utilizing the dispute
resolution procedure provided in s 191 of the Act if the decision on
his appeal is delivered more than 30 days after the date of
dismissal
because he believes he was dismissed on the day he is notified that
he has lost his appeal. It is also ridiculous in
my view for an
applicant to have to proceed against his employer in the CCMA while
an appeal is pending or the result thereof is
awaited, when to do so
may well sour the relationship and/or affect the result of the
appeal. The Act prescribes the date of the
dismissal (s 190). The
absurd consequence may be a procedural requisite in cases such as the
present one. Condonation in such a
case must inevitably be granted
and, furthermore, it is perfectly reasonable for the employee to
believe that the date the dispute
arose is the date he is told
finally that his appeal against his dismissal has been refused..”
[18]
The pertinent issue however in respect of the delay in this case is
that its extent was six days, which the applicant contends
was
unexplained. To however suggest that the delay is in fact 35 days,
and that the third respondent was expected to account for
the latter
delay is far-fetched. This is so in that a referring party that
genuinely believes that a dispute was referred on time,
and without
having been made aware by the CCMA of the fact that this was not the
case, cannot be expected to proffer any other
reasonable explanation
for the delay he or she was not aware of, other than that he or she
was not aware of the need to apply for
condonation. Having realised
the folly of its argument in this regard, and further having made
reference to the decision in
Weltevrede
Kwekery (Pty) Ltd v CCMA & Others
[10]
,
the applicant had correctly abandoned that line of argument
pertaining to the delay being 35 days.
[19]
The applicant did not take issue with the Commissioner’s
conclusions that a delay of six days was minimal. I however
fail to
appreciate the applicant’s attack on the conclusions made by
the Commissioner that the third respondent’s explanation
should
be given the benefit of the doubt as he had always demonstrated an
intention to file a dispute. This conclusion in my view
is
unassailable on the facts, as the third respondent’s contention
that he had enquired from the applicant’s Seema
as to what the
next step should be without being given an answer. The fact that the
applicant was legally represented in the internal
disciplinary
enquiry cannot be held against him in view of the fact that on his
version, and after his application was not entertained
on 20 November
2012, he had made his own means of what steps to take. It cannot be
correct as contended on behalf of the applicant
that the third
respondent’s intention to file the dispute was not relevant.
This is even pertinent where upon being informed
that he needed to
file an application for condonation, the third respondent had
immediately done so on the same date.
[20]
The Commissioner’s reasoning that the third respondent should
be given the benefit of the doubt in the light of the explanation
he
had given pertaining to conflicting messages he had received from
CCMA officials cannot in my view be regarded as unreasonable.
As at
19 December 2012 when he approached the CCMA, and in view of having
informed the CCMA officials that his appeal was finalised
on 20
November 2012, the third respondent could not be blamed for assuming
that his referral was within time on the advice of CCMA
officials,
and the Commissioner was correct in giving his explanation a benefit
of the doubt and accepting it.
Prospects of
success:
[21]
In
Production
Institute of South Africa (PTY) Ltd v CCMA & others
[11]
,
Molahlehi J in dealing with the issue of prospects of success held
that these did not entail an applicant having to prove on a
balance
of probabilities that he or she would succeed when the merits of the
case are heard. He further held that;
“…
What an applicant needs to do
is to provide a basis that shows that he or she has a good chance of
succeeding when the matter is
considered on its merits. It is however
not good enough for the applicant to make a broad and sweeping
statement that he or she
has good prospects of success. An averment
that there are prospects of success or bona fide defense must be
substantiated and backed
by facts”.
[22]
In
Gaoshubelwe
and Others v Pieman's Pantry (Pty) Ltd
[12]
this Court held that:
“
The
prospects of success or bona fide defence on the other hand mean that
all what needs to be determined is the likelihood or chance
of
success when the main case is heard. See Saraiva Construction (Pty)
Ltd v Zululand Electrical and Engineering Wholesalers (Pty)
Ltd
1975
(1) SA 612
(D) and Chetty v Law Society, Transvaal
1985 (2) SA 756
(A) at 765 (A-C).”
[23]
In regards to the third respondent’s prospects of success, the
Commissioner had concluded that in the light of his submissions
that
his dismissal was unfair and that the applicant had not followed a
fair procedure, he had demonstrated that he had reasonable
prospects
of success with his claim. The applicant however takes issue with the
fact the Commissioner’s conclusions in this
regard were not
supported by evidence, and further that the Commissioner did not even
know the charges with which the third respondent
was dismissed.
[24]
The difficulty with the applicant’s case at the
in limine
hearing is that it chose to oppose the application for condonation
from the bar. In the light of the mere submissions made at that
hearing in opposing the application, as opposed to the third
respondent’s affidavit and substantiation of his averments in
the hearing, I fail to appreciate the reason it was expected of the
Commissioner to place more weight on the oral submissions made
from
the bar rather than an affidavit filed in support of the application.
The material facts leading to the dismissal as suddenly
pleaded in
this review application and as further encapsulated in the written
heads of arguments were not matters placed before
the Commissioner by
way of evidence. Inasmuch as the applicant contended that the
Commissioner’s conclusions were not supported
by evidence from
the third respondent, it also did not place any evidence other than
mere oral submissions before the Commissioner
to support its case
that there were no prospects of success. To this end, the
Commissioner’s conclusions that the third respondent
had
prospects of success on the merits can equally not be deemed to be
unreasonable in the light of the material placed before
her.
Prejudice:
[25]
In the written heads of argument, the applicant had submitted that
the Commissioner was addressed on the question of prejudice
it would
suffer, and that the Commissioner in her ruling had stated that her
decision to condone the application would not prejudice
the applicant
more than it would prejudice the third respondent as he had shown
good cause. The applicant took issue with these
conclusions on the
basis that the Commissioner miscomprehended the issue of prejudice in
that showing good cause cannot be an indication
of the absence of
prejudice.
[26]
In
Balmer
& others v Reddam (Bedfordview) (Pty) Ltd
[13]
this Court per Molahlehi J held that in deciding prejudice, a party
seeking condonation must show in what way the other party would
not
suffer prejudice if condonation were granted. In his application for
condonation before the Commissioner, the third respondent
did not
properly address the issue of prejudice and had merely made reference
to the fact that Seema had lied when he informed
him he was not aware
of the CCMA procedures and Rules whilst allowing him to file an
appeal. He had also raised the issue pertaining
to the blame the CCMA
should take in the late referral. As his application did not
clearly address this issue, and further
having been implored by the
Commissioner
[14]
to elaborate
further on the issue, his ultimate contention was that even though he
did not know what prejudice the applicant would
suffer, as far as he
knew, there was no prejudice the applicant would suffer if
condonation were granted.
[27]
On the other hand, the submissions made on behalf of the applicant in
regards to the issue of prejudice were even more inarticulate
as the
focus was more on the allegation that the merits were sketchy and/or
the explanation for the delay was sketchy
[15]
.
In my view, and based on the submissions made in this regards at the
hearing before the Commissioner, I fail to appreciate the
reason that
it could have been expected of the Commissioner to conclude that the
applicant stood to suffer more prejudice if condonation
was to be
granted. No comprehensible material was placed before the
Commissioner in regards to what prejudice the applicant would
suffer
if condonation were to be granted. It might be correct that the
Commissioner may have miscomprehended the concept of prejudice
in the
light of the reasoning. This however does not imply that the ultimate
discretion exercised and decision arrived at is unreasonable
as a
whole, especially in the light of the extent of the delay in
referring the dispute.
Conclusions:
[28]
The fervent manner with which this application was pursued by the
applicant in the light of the minimal nature of the delay
in
referring the dispute is perplexing in the extreme. I do not think
that a delay of six days in the referral of the dispute is
such that
the applicant would be prejudiced in meeting that case in the
ordinary course. On the whole, and further having taken
account of
the material before her, there is no basis for a conclusion to be
reached that in exercising her discretion and granting
the
application for condonation, the Commissioner had arrived at a
decision that no other reasonable Commissioner could have arrived
at.
There is therefore no basis for this Court to interfere with that
ruling.
Order:
i.
The application to
review and set aside the ruling issued by the second respondent under
case number GAJB 33476-12 and dated 5 March
2013 is dismissed.
ii.
The first respondent is
ordered to set down the dispute for arbitration on an expedited
basis.
iii.
There is no order as to
costs.
Tlhotlhalemaje,
AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Adv. N Muvangua
Instructed
by: Maserumule INC
For
the Respondent: In Person
[1]
Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others
2008
(2) SA 24 (CC)
[2]
Motloi
v SA Local Government Association
[2006]
3 BLLR 264
(LAC)
para [16]
[3]
1962
(4) SA 531
(A) at 532B-E
[4]
See
Meintjies
v HD Combrinck (Edms) Bpk
1961 (1) SA 262
(A) at 263 H-264B.
[5]
See
NUMSA
and another v Hillside Aluminium
[2005] 6 BLLR 601 (LC)
[6]
(1998)
19 ILJ (LAC)
[7]
(2000)
21 ILJ 1963 (LAC).
[8]
(2000)
21 ILJ 2382 (LAC) at para 21
[9]
(2000)
21 ILJ 2009 (LC) at para [18]
[10]
2006
(7) BLLR 706
(LC) at paras [16 – 17] where the court held that
the Commissioner’s mind must be directed to the lateness of
the
referral and not the condonation application.
[11]
Case No: JR1974/2009 at para 12
[12]
2009
30 ILJ 347 (LC) at para 27
[13]
(2011)
32 ILJ 2121 (LC) at para 10
[14]
Page
11-12 of the Record of Proceedings
[15]
Page
18 -20 of the Record