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[2015] ZALCJHB 251
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Protea Coin Group v SATAWU obo Mabasa and Others (JR373/2011) [2015] ZALCJHB 251 (7 August 2015)
REPUBLIC
OF SOUTH AFRICA
Not reportable
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JR 373/2011
In the matter between:
PROTEA COIN
GROUP
APPLICANT
and
SATAWU OBO SIMON
MABASA
FIRST RESPONDENT
THULANI AKIN
N.O.
SECOND RESPONDENT
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
THIRD RESPONDENT
Heard
:
6 August 2015
Delivered
:
7 August 2015
RULING: LEAVETO APPEAL
VAN
NIEKERK J
[1]
This is an application for leave to appeal against the whole of the
judgment delivered by Pillay AJ on 4 December 2013. For
convenience,
I shall refer to the parties as in the review application.
[2]
Two applications served before the court
a
quo
. The first was the
application to review and set aside the second respondent’s
ruling that the employee’s dismissal
was substantively and
procedurally unfair; the second was an application to dismiss the
application for review on the grounds that
the applicant had failed
to prosecute the review application with due diligence. In essence,
the court
a quo
found
that the Rule 11 application should be dismissed as the prospects of
success in the review application were overwhelming,
and further
ordered that the arbitration award be reviewed and set aside. The
basis on which the award was specifically set aside
was the absence
of any jurisdiction on the part of the second respondent to hear the
dispute referred to arbitration. The court
reasoned that the dispute
had been referred for conciliation outside of the statutory 30 day
time limit, and that in the absence
of any application for
condonation, the CCMA had no jurisdiction.
[3]
Specifically, the court
a quo
found that the employee had been
dismissed on 3 February 2009. While the employee had recorded his
date of dismissal as being 20
September 2010, the court found that
this was not correct. The factual background to the dispute is that
the employee was arrested
on 5 December 2008, and released on bail on
29 December 2008, when he reported for work and was told that he
would have to wait
for his criminal trial to be finalised before the
applicant could make a decision on the resumption of his duties. The
applicant’s
version is that in circumstances where it was not
aware how long the employee would be in custody or whether he would
receive bail,
it decided on 3 February 2009 to terminate his services
because it could not keep his position open any longer.
[4]
Section 190(1) of the LRA makes clear that the date dismissal is the
earlier of the date on which a contract of employment terminated
or
the date on which the employee left the service of the employer.
There is no reference in that section to the date on which
the
employee acquired knowledge of any termination, or the date on which
any termination first came to the employee’s attention.
If the
legislature had intended the date of dismissal to mean the date on
which the fact of any termination of employment came
to the knowledge
of the employee, it would have said so. Any potential injustice to an
employee in the circumstances is addressed
by the right to apply for
condonation.
[5]
Insofar as the employee sought to submit that the 30 day period
commenced only once the fairness of a dismissal was disputed,
that is
not what the Act provides. Section 191 (1) specifically provides that
a referral must be made within 30 days ‘of
the date of a
dismissal’. As I have indicated, the provisions of s 190 define
the date of dismissal.
[6]
That being so, in my view, the court
a quo
was correct in
holding that the date of dismissal was the date on which the
applicant unilaterally terminated the employee’s
contract (i.e.
3 February 2009). Of course, it was always open to the employee to
seek condonation for the late referral of his
dispute and in
circumstances such as the present, it would be surprising were
condonation to be refused. However, the fact that
the referral was
unaccompanied by any application for condonation has the consequence,
as the court correctly found, of an absence
of jurisdiction. The
review was accordingly correctly upheld and the application to
dismiss correctly dismissed.
[7]
For the above reasons, I am not persuaded that another court might
reasonably come to a different conclusion and the application
for
leave to appeal stands to be dismissed.
I
make the following order:
1.
The application for leave to appeal is dismissed.
2.
There is no order as to costs.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT