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[2015] ZALCJHB 197
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Shabangu v Commission for Conciliation Mediation And Arbitration and Others (JR2232/10) [2015] ZALCJHB 197 (8 July 2015)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 2232/10
In the matter between
ALFRED MANDLA
SHABANGU
Applicant
and
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
First Respondent
MASHOODA PATEL N.O
Second Respondent
ANGLO PLATINUM MINE
Third Respondent
Heard:
29 October
2014
Delivered:
8 July 2015
Summary:
When the applicant has failed to establish grounds to have a
condonation ruling reviewed and set aside, this court will
not
interfere with the
condonation ruling.
JUDGMENT
LALLIE J
[1]
In this application the applicant seeks an order reviewing and
setting aside an arbitration ruling in which the second respondent
declined his application to condone the late referral of his unfair
dismissal dispute to the first respondent. It is opposed by
the third
respondent. The facts of this matter are briefly that the applicant
was employed by the first respondent as a machine
operator from 1
August 2001. Owing to allegations of misconduct against him, he was
subjected to a disciplinary enquiry whose chairperson
dismissed him
for misconduct on 24 August 2009. The applicant launched an appeal
against the decision to dismiss him. Both the
verdict and penalty
were upheld. Aggrieved by the outcome of his appeal, the applicant
referred an unfair dismissal dispute to
the first respondent on 3
June 2010. As the referral was made outside the statutory 30 day
period, he applied for condonation.
It is the third respondent’s
decision refusing the applicant’s condonation application that
forms the subject matter
of this application.
[2]
The applicant submitted that his disciplinary enquiry was held on 23
June 2009 but he received the dismissal letter on 31 May
2010. He
lodged an appeal which was denied in 2009. His grounds for review are
that the second respondent failed to take into account
that he
received the dismissal letter on 31 May 2010, he was busy with his
trade union, NUM, in connection with his case and not
aware of the
lateness as he had been advised to wait for the dismissal letter. The
commissioner therefore failed to consider that
the delay was caused
by the third respondent. The applicant sought to rely on the third
respondent’s failure to consider
23 June 2009, 31 May 2010 and
the 23 June 2010, dates which he considered relevant to his
condonation application. He submitted
that the second respondent
committed misconduct by conducting the arbitration in an irregular
manner and issuing a ruling which
was obtained improperly.
[3]
Opposing the application, the third respondent submitted that the
applicant was issued with the outcome of his appeal advising
him that
both the verdict and penalty imposed by the chairperson of his
disciplinary enquiry on 25 August 2009 had been upheld.
He
acknowledged its receipt by appending his signature on the form of
the outcome of his appeal. He was informed in the same form
that he
had 30 days from 24 September 2009 to refer a dispute to the second
respondent should he so wish. The third respondent
submitted that the
applicant established no grounds to have the ruling review and set
aside as the second respondent had considered
the submissions
presented before her. She found the delay of 252 days excessive. She
further found that the applicant made no efforts
to ascertain the
progress of his matter, he was aware that he had to refer his dispute
to the first respondent within 30 days and
he had failed to prove
that he had prospects of success. The third respondent denied that
the applicant received the letter confirming
his dismissal on 31 May
2010 and submitted that all the grounds the applicant sought to rely
on were invalid. It was further submitted
on behalf of the third
respondent that when the condonation application was argued, the
second respondent afforded the applicant
an opportunity to augment
the submissions made in his application. The applicant filed no
replying affidavit and all the submissions
made by the third
respondent in its answering affidavit were not refuted.
[4]
The test for review is whether the arbitration award constitutes a
decision a reasonable decision-maker could not reach on the
facts
before the commissioner. In this regard see
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
.
In
Goldfields
Mining SA (Pty) Ltd [Kloof Gold Mine]
[2]
,
it was held that the duty of the reviewing court is to ascertain
whether the arbitrator considered the principal issue, evaluated
the
facts presented and came to a reasonable conclusion. The totality of
the facts before the second respondent proves that she
considered the
issue before her. She evaluated the facts and even afforded the
applicant an opportunity to augment his application.
The applicant
presented no grounds to prove that the third respondent reached an
unreasonable conclusion. All the grounds the applicant
sought to rely
on have no basis. His submission that he received his dismissal later
on 31 May 2010 is not true because he acknowledged
receipt of the
outcome of his appeal on 25 August 2009. It is also not true that he
was not aware of the lateness of his referral
because he was advised
in his appeal outcome that he had 30 days from 24 September 2009 to
refer his dispute to the first respondent.
It is therefore, untrue
that the delay was caused by the third respondent. A reading of the
condonation ruling proves that the
second respondent took into
account all the material dates and the applicant failed to establish
how the second respondent misconducted
herself. The applicant has
failed to establish grounds to have the condonation ruling reviewed
and set aside. A reading of the
ruling proves that it falls within
bounds of reasonableness and there is therefore no reason to
interfere with it.
[5] In
the premises, the application for review is dismissed.
________________________
Lallie J
Judge
of the Labour Court of South Africa
APPEARANCES
For the Applicant:
Mr
Shabangu
In person
For the Respondent:
Mr Malan
Edward Nathan Sonnenbergs
[1]
[2007] 12 BLLR
1097 (CC).
[2]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC)