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[2015] ZALCJHB 222
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Zulu v CCMA and Others (JR1517/10) [2015] ZALCJHB 222 (2 June 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
CASE
NO
: JR1517/10
DATE
:
02 JUNE 2015
In
the matter between
SUNDAY
ZULU
.........................................................................................................................
Applicant
And
CCMA
.............................................................................................................................
First
respondent
SBINGOSENI
HINTSO
N.O
....................................................................................
Second
respondent
SUNNYSIDE
PARK
HOTEL
.....................................................................................
Third
respondent
JUDGMENT
STEENKAMP,
J
This
is an application for condonation and an application to have an
arbitration award reviewed and set aside. In dealing
with the
application for condonation, I will refer to the well-known
principles set out in
Melane
v Santam Insurance
Company
Limited.
[1]
Firstly,
the extent of the delay is excessive. The application is more than
eight months late, despite the generous period of six
weeks provided
for in the Labour Relations Act.
[2]
The
only explanation that the applicant offers is the following.
The arbitration award, handed down on 10 Feb 2010, was sent
to his
trade union, SACCAWU. “Subsequently I was informed by the
CCMA that the arbitration award was sent to [SACCAWU”.
He does
not say when. He then says:
“
I
contacted the union offices and they reluctantly informed me that
they never received the arbitration award. They further
promised me that if they are in receipt of it, they will get in touch
with me.”
Eventually,
the applicant did get a copy of the award, apparently on 14 May 2010
after he took a letter from his attorneys, Kgotleng
attorneys, to the
CCMA. He says:
“
I
immediately sent the same [i.e. the award] to my legal representative
for perusal and advice.”
That
legal representative was the applicant’s attorney, Mr
Kgotleng. Kgotleng went on holiday, apparently, without
bothering to refer the matter to anyone else and only returned two
months later, on 17 July 2010. Despite that,
it took
another four months, until 19 November 2010, to deliver the
review application. The only explanation for that
is that the
applicant says:
“
At
the time I was out of pocket without any money to pay my attorneys.”
He
does state that the attorney was reasonable and gave him a chance to
seek finances to enable him to proceed with the matter.
He does
not explain when he did that and why it took another four months to
file a simple review application comprising 11 pages,
four of which
deal with the application for condonation. The explanation is a
poor one.
I
turn then to the prospects of success. Having perused the
transcript of the proceedings and the arbitration award, it is
clear
that the arbitrator, Commissioner Sibongiseni Hintsho, dealt with the
evidence and argument before him clearly and comprehensively.
He noted that the dispute concerned the dismissal of the applicant
for poor work performance and failure to follow through an
instruction. The applicant was employed as assistant front office
manager of the Sunnyside Park Hotel. A customer requested an amended
invoice from the applicant. The applicant never sent it to the
client, despite numerous requests.
The
arbitrator analysed the evidence and noted that it is common cause
that the application received a request from the client to
amend an
invoice. The applicant confirmed that it was part of his duties
to assist guests with invoices, yet, he did not
comply. The
arbitrator further noted that it is common cause that the application
was aware of the rules and regulations
of the respondent. He
confirmed that he was trained and did not require any further
training. He was previously warned
for poor work performance.
He had a valid final written warning. The respondent applied
principles of progressive discipline
prior to the dismissal. He
was counselled on numerous occasions about his poor performance and
he was offered a lower level
job, which he refused. At the internal
appeal hearing, he was again offered demotion as an alternative to
dismissal. He declined.
The
arbitrator found on a balance of probabilities that the dismissal was
substantively fair. Applying the principles set
out in
Herholdt
v Nedbank Ltd
[3]
and in
Goldfields
Mining
[4]
,
that conclusion is not so unreasonable that no other arbitrator could
have come to the same conclusion. Therefore, the application’s
prospects of success in the condonation application are
non-existent.
ORDER
The
application for condonation is dismissed.
STEENKAMP
J
CERTIFICATE
OF VERACITY
I,
the undersigned, hereby certify that,
in
as far as it is audible
, the
aforegoing is a
VERBATIM
transcription of the proceedings as was ordered to be transcribed by
iAfrica Transcriptions and which had been recorded by
Digital Court
Recording Services by means of a digital recorder.
In
the matter between :
SUNDAY
ZULU Applicant
And
SUNNYSIDE
PARK HOTEL Respondent
CASE
NO
: JR1517/10
RECORDED
AT
: JOHANNESBURG
Court
:
Labour Court
Court
Nr
:
Stenographer
:
DATE
OF HEARING
: 2 JUNE 2015
ORDER
TO TRANSCRIBE
: Transcribe whole case.
RECEIVED
BY TRANSCRIBER ON
: 15 JULY 2015
COMPLETED
BY TRANSCRIBER ON
: 21 JULY 2015
TRANSCRIBER
:
A G VAN STADEN
NUMBER
OF PAGES
: 10
Number
of CDs
:
Sound
via Internet
: Yes
PLEASE
NOTE
1.
Court digital recording equipment not utilised to its full potential.
3.
Court stenographer’s annotations incomplete.
4.
Where no clear annotations are furnished, names are transcribed
phonetically.
[1]
1962 (4) SA 531 (A).
[2]
Act 66 of 1995 s 145(1)(a).
[3]
[2013] 11 BLLR 1074 (SCA).
[4]
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC).