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[2015] ZALCJHB 190
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IMATU obo Greyvenstein v Ekurhuleni Metropolitan Municipality and Others (JR1697/14) [2015] ZALCJHB 190 (2 July 2015)
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR
1697/14
DATE: 02 JULY
2015
Not Reportable
In the matter
between:
IMATU OBO
GREYVENSTEIN
............................................................................................
Applicant
And
EKURHULENI
METROPOLITAN
MUNICIPALITY
............................................
First
Respondent
ADVOCATE L
MOSALA-MATLATLE
N.O
........................................................
Second
Respondent
SOUTH AFRICAN
LOCAL GOVERNMENT.
BARGAINING
COUNCIL
........................................................................................
Third
Respondent
Heard: 06 January
2015
Delivered: 02
July 2015
Summary: Review
of Bargaining Council Condonation Ruling
JUDGMENT
FOUCHE, AJ
Introduction
[1]
The applicant is applying, for the second
respondent's condonation ruling, issued under the auspices of the
third respondent, to
be reviewed and set aside in terms of s
158(1)(g) read with s 145 of the Labour Relations Act,1995 (“LRA”).
[2]
The applicant also wants the second
respondent's arbitration award to be replaced by an order dismissing
the first respondent's
condonation application.
[3]
The application is unopposed and there was
no appearance on behalf of any of the Respondents at the hearing.
Facts
[4]
The interpretation of clause 6.3 of the
Disciplinary Procedure and Code Collective Agreement concluded in the
third respondent is
central to this matter. Clause 6.3 of the
collective agreement provides as follows:
“
The
Employer shall proceed forthwith or as soon as reasonably possibly
with a Disciplinary Hearing but in any event not later than
three (3)
months from the date upon which the Employer became aware of the
alleged misconduct. Should the employer fail to proceed
within the
period stipulated above and still wish to pursue the matter, it shall
apply for condonation to the relevant Division
of the SALGBC.”
[5]
The applicant’s member, Mr
Greyvenstein, was accused of causing malicious damage to the first
respondent’s property
on 18 December 2012.
[6]
On 5 June 2013, Greyvenstein was presented
with a notice to attend a disciplinary hearing on 14 June 2013, in
respect of the alleged
misconduct. The disciplinary hearing
proceeded on 20 June 2013, having being postponed on 14 June 2013.
The chairperson
of the hearing recused himself for reasons unrelated
to this application.
[7]
After 20 June 2013, Greyvenstein next heard
from the first respondent on 4 February 2014, when he received a
charge sheet inviting
him to attend a disciplinary hearing on 10
February 2014. The hearing did not take place on 10 February
2014.
[8]
On 8 May 2014, the first respondent lodged
an application for condonation with the third respondent in terms of
clause 6.3 of the
collective agreement. In the condonation
application the first respondent alleged,
inter
alia
, that:
i.
the chairperson of the hearing on 20 June
2013 issued a ruling that the first respondent needed to obtain
condonation in terms of
clause 6.3 of the collective agreement prior
to the continuation of the disciplinary hearing;
ii.
the first respondent became aware of the
alleged misconduct on 18 December 2012;
iii.
the disciplinary hearing took place on 14
June 2013;
iv.
the disciplinary hearing would take place
as soon as the condonation has been granted;
v.
the disciplinary hearing would take place
more than a year after the first respondent became aware of the
alleged misconduct;
vi.
the disciplinary hearing was heard in time;
vii.
the first applicant had good prospects of
success because the misconduct was malicious damage to the first
respondent’s property
in that a vehicle was damaged and photos
were presented as proof;
viii.the
first respondent would suffer prejudice if the matter remains
unresolved;
ix.
Greyvenstein would not be prejudiced
because he would receive an opportunity to answer any evidence
against him and prove his innocence.
[9]
No photographs were annexed to the first
respondent's condonation affidavit.
[10]
The applicant opposed the condonation
application. The applicant alleged
inter
alia
, that:
i.
when Greyvenstein received the charges on 5
June 2013, it was 6 months after the alleged incident and the
applicant's delay in charging
Greyvenstein at that stage amounted to
approximately 3 months;
ii.
the first respondent provided no
explanation for the delay;
iii.
the first respondent did not apply for
condonation because the first respondent alleged that there was no
lateness as the matter
was heard in time;
iv.
the first respondent did not allege that it
was Greyvenstein who damaged the vehicle;
v.
the first respondent failed to establish
any wrong-doing against Greyvenstein;
vi.
the first respondent is the author of its
own misfortune;
vii.
Greyvenstein would suffer prejudice should
the condonation be granted due to the lapse of time and the possible
unavailability of
witnesses.
[11]
The second respondent granted the first
respondent's condonation application.
Grounds of review
[12]
Mr Mkwibiso argued on behalf of the
applicant that the second respondent misconstrued the nature of the
matter that was before her,
committed a gross irregularity by
disregarding material evidence and that the second respondent's award
is one that no reasonable
arbitrator could make. The second
respondent failed to consider the proper interpretation of the
collective agreement and the relevant
law in general.
Analysis
[13]
A
condonation ruling is not an award for the purpose of s. 145 of the
LRA. Condonation rulings of Bargaining Councils are
reviewable
under s. 158(1)(g) of the LRA. A review in terms of s 158(1)(g)
comprises a common law review.
[1]
[14]
The
test to be applied in dealing with applications for review was
formulated in Sidumo and Another v Rustenburg Platinum Mines
Ltd and
Others.
[2]
This
reasonableness test requires the review court to ask the question:
“
Is
the decision reached by the commissioner one that a reasonable
decision maker could not reach?
”
The reasonableness test applies to review proceedings under
s 158(1)(g) of the LRA.
[3]
[15]
The
first respondent is bound by the collective agreement by virtue of
being a member of the South African Local Government Association
(“SALGA”).
[4]
An arbitrator acting under the auspices of the third respondent has
the power to determine whether the first respondent should
be granted
condonation in terms of clause 6.3 the collective agreement.
[5]
[16]
The
second respondent in considering the condonation application was
tasked with exercising her discretion judiciously. This
required considering the facts against the established factors to be
considered in condonation applications, being the degree of
lateness,
the explanation for the delay, the prospects of success in the main
case, the importance of the case, and ultimately
the interests of
justice.
[6]
The second
respondent also had to keep in mind that without a reasonable and
acceptable explanation for the delay, the prospects
of success are
irrelevant and in the absence of prospects of success an application
for condonation should be refused.
[7]
[17]
The second respondent found that the first
respondent complied with clause 6.3 of the collective agreement when
it instituted the
disciplinary hearing by issuing the charge sheet on
5 June 2013. The second respondent thus concluded that there
was no delay
on the part of the first respondent in instituting the
disciplinary enquiry against Greyvenstein.
[18]
The second respondent interpreted the three
months referred to in clause 6.3 to commence only once the accusation
of misconduct
has been brought before the Municipal Manager or his
authorised representative. Clause 6.1 of the collective
agreement provides
as follows:
“
An
accusation of misconduct against an Employee shall be brought in
writing before the Municipal Manager or his authorised representative
for investigation.”
[19]
The
second respondent’s finding is not supported by the wording of
clause 6.3 of the collective agreement. Considering
both the
context and the language
[8]
of
both clauses 6.1 and 6.3 there is no basis for link that the second
responded tried to establish between the two clauses.
[20]
I
agree with Steenkamp J in
Mahoko
v Mangaung Metropolitan Municipality & Others
[9]
that clause 6.3 of the collective agreement is peremptory, which
means strict compliance with its provisions is required.
[21]
The employer has to proceed with the
“
disciplinary hearing
”
within the three month period provided for in clause 6.3.
Initiating the disciplinary process by presenting Greyvenstein
with a
notice to attend a disciplinary hearing on 5 June 2013, did not
meet the requirements of clause 6.3. This approach
is supported
by the distinction between clause 6.3 referring to “
proceed…
with a Disciplinary Hearing
” as
opposed to clause 6.2 of the collective agreement referring to
“
institute disciplinary
proceedings
”.
[22]
On the first respondent’s version the
disciplinary hearing commenced on 14 June 2013. The
applicant alleged
that the disciplinary hearing commenced on 20 June
2013 and not 14 June 2013. However, it is not necessary to
decide that
aspect for the purpose of this judgment.
[23]
The three month period provided for in
clause 6.3 must be calculated from “
the
date upon which the Employer became aware of the alleged
misconduct”
. In the
condonation application the first respondent conceded that it became
aware of Greyvenstein’s misconduct on
18 December 2012.
It means that in order to comply with the provisions of clause 6.3
the first respondent had to proceed
with the disciplinary hearing by
no later than 18 March 2013. The first respondent thus failed
to proceed with the disciplinary
hearing within the time limit
provided for in clause 6.3.
[24]
The
second respondent misconceived the nature of the enquiry or the
process she had to conduct to establish whether the first respondent
had complied with clause 6.3. The flawed interpretation of
clause 6.3 resulted in the incorrect finding that the first
respondent
had complied with the provisions of clause 6.3. The
consequences are that the applicant was denied a fair hearing and the
second applicant committed a gross irregularity.
[10]
misconstrued the evidence before her when she linked the
interpretation of clause 6.3 of the collective agreement with the
provisions
of clause 6.1 of the collective agreement.
[25]
The second respondent’s find that the
first respondent complied with the time period in clause 6.3 is also
one that a reasonable
arbitrator would not have made. There are
also no other
reasons or facts upon which
the second respondent did not rely to support her finding which would
render the finding reasonable.
On
this aspect alone the second respondent’s ruling on the
condonation application stands to be reviewed and set aside.
[26]
It would serve no purpose to remit this
dispute to the third respondent. This court is in as good a
position as the third
respondent to consider the condonation
application. I thus proceed to consider the remainder of the
condonation application
for this purpose.
[27]
The
second respondent’s approach to the interpretation of clause
6.3 also resulted in her not considering the degree of lateness.
Should an employer commence a disciplinary hearing more than three
months after it became aware of the employee's alleged misconduct,
the disciplinary hearing would be conducted in breach of clause 6.3.
Where an employer has breached the provisions of clause
6.3 of the
collective agreement, it renders the disciplinary hearing invalid and
of no force or effect.
[11]
It also means that under clause 6.3 granting condonation
retrospectively is not permitted.
[28]
It follows that the disciplinary hearing
that took place on 14 June 2013 and 20 June 2013 was
invalid and these dates
could not be used to determine the degree of
lateness.
[29]
The
employer thus has to apply for condonation prior to conducting the
disciplinary hearing. The conduct of the hearing prior
to
condonation being granted would be unlawful and of no force or
effect.
[12]
It means that the degree of lateness should be determined with
reference to both when the condonation application is launched
and
when the disciplinary hearing will take place subsequent to the
condonation application.
[30]
The first respondent’s condonation
application is dated 8 May 2014. The first respondent admitted
in its condonation
application that the disciplinary hearing would
have taken place more than a year after first respondent became aware
of Greyvenstein’s
alleged misconduct. The degree of
lateness is thus material, which requires a good explanation for the
lateness.
[31]
The second respondent’s consideration
of the reasons for the delay focussed on the disciplinary
chairperson’s ruling
that the first respondent had to obtain
condonation in terms of clause 6.3 of the collective agreement prior
to proceeding with
the disciplinary hearing. The chairperson’s
ruling seems to be the only reason why the first applicant launched
the
condonation application. The first applicant denied that it
failed to comply with clause 6.3 of the collective agreement,
which
is why the applicant’s argument that condonation application
was an application in name only and not in substance as
the first
respondent failed to acknowledge that it had proceeded with the
disciplinary hearing out of time it not without merit.
[32]
In
Independent
Municipal & Allied Trade Union obo Zungu v SA Local Government
Bargaining Council & others
[13]
the
following was said about the reasons for the lateness:
“
In
explaining the reason for the delay it is necessary for the party
seeking condonation to fully explain the reason for the delay
in
order for the court to be in a proper position to assess whether or
not the explanation is a good one
”
[33]
The first respondent had to provide a
detailed explanation of the steps it took from 18 March 2013 to when
it filed the condonation
application on 8 May 2014.
It also had to explain why such steps constituted a good explanation
for the lateness.
The first respondent failed to provide any
explanation for the lateness.
[34]
The second respondent did not consider the
prospects of success. The second respondent’s view was that for
justice to prevail
both parties must be given an opportunity to have
their side of the story heard.
[35]
The second respondent referred to the
photographs of the damaged vehicle, which indicates that the
photographs were probably shown
to the second respondent during the
condonation hearing.
[36]
The difficulty with the first respondent’s
allegations regarding the prospects of success is that it failed to
establish any
causal link between the damage to the vehicle and
Greyvenstein’s conduct. The first respondent at least had
to allege
that it was Greyvenstein who caused the damage to the
vehicle. As such Greyvenstein was not placed at the “scene”
of
the misconduct. The first respondent thus failed to demonstrate
any prospects of success.
[37]
Even if I am wrong about the prospects of
success the condonation application could not succeed given the
lengthy delay and the
absence of good reasons for the delay.
[38]
The above analysis also demonstrates that
second respondent also acted unreasonably and committed gross
irregularities when she
misconstrued the nature of the enquiries
involved in considering the reasons for the delay and the prospect of
success.The second
respondent failed to consider whether the first
applicant had any prospects of success and did not realise that the
first respondent
had not submitted any explanation for the delay.
[39]
This case is, other than to the parties,
not of particular importance. In the interest of justice,
Greyvenstein should not be exposed
to the prejudice of having to
answer to the allegations more than two years after the alleged
misconduct. In this regard
Greyvenstein’s interests
outweigh the prejudice the first respondent may suffer as a result of
the disciplinary process not
being concluded.
[40]
The applicant did not ask for an order as
to costs save in the event that any of the respondents unsuccessfully
oppose the review
application. This is appropriate considering
the ongoing relationship between the parties.
Order
[41]
I therefore make the following order:
1
The condonation ruling of 1 July 2014 under case number GPD 051401 is
reviewed and set aside.
2
The condonation ruling is replaced with the following ruling:
“
The
application for condonation is denied.”
FOUCHE
AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Mr V G Mkwibiso
Union
Official – Imatu
For
the Respondents: No appearance
[1]
Toyota
South Africa Motors (Pty) Ltd v Radebe
[2000]
3 BLLR 243
(LAC) at para 31
[2]
(2007)
28
ILJ
2405
(CC) at para 110
[3]
Trafford
Trading (Pty) Ltd v National Bargaining Council for the Leather
Industry of SA & others
[2010]
1 BLLR 95
(LC), at para 32;
Southern
Life Association v CCMA
[2001]
3 BLLR 375
(LC),
para 31
[4]
Hendricks
v Overstrand Municipality & Another
[2014]
12 BLLR 1170
(LAC)
,
para 4; S. 23(1) of the LRA
[5]
S. 33A(1), (4)(a) and (8)(f) of the LRA read with s. 138(9) of
the LRA;
SAMWU
obo Jacobs v City of Cape Town & Others,
[2014]
10 BLLR 1011
(LC)
,
paras 11-12
[6]
Melane
v
Santam
Insurance
Co
Ltd
1962 (4) SA 531
, at 532C-E
;
Seatlolo & Others v Entertainment Logistics Service (A Division
of Gallo Africa Ltd)
(2011) 32 ILJ 2206 (LC), para 7
[7]
Chetty
v
Law
Society
,
Transvaal
1985 (2) SA 756
(A), at 765;
NUM
v
Council
for
Mineral
Technology
[
1999]
3 BLLR 209
(LAC), para 10
[8]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
2 All SA 262
(SCA);
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
2014 1 All SA 517
(SCA);
[9]
(
J878/13,unreported,
8 May 2013)
para
26;
SAMWU
obo Jacobs v City of Cape Town & Others
,
supra, para 23
[10]
Toyota
South Africa Motors (Pty) Ltd v Radebe
,
supra,
para
41
[11]
SAMWU
obo Jacobs v City of Cape Town & Others
,
supra, para 13:
SAMWU
obo Nesengani v Mogale City Local Municipality & Others,
(J1784/14, unreported, 5 August 2014)
para
10
[12]
SAMWU
obo Nesengani v Mogale City
,
supra, para 3
[13]
(2010)
31 ILJ 1413 (LC) para 13