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[2015] ZALCJHB 316
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Mothapo v Metal and Engineering Industries Bargaining Council and Others (JR 1646/14) [2015] ZALCJHB 316 (12 August 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR 1646/14
DATE:
12 AUGUST 2015
Not
Reportable
In the matter
between:
MAKOLOBE JOHANNES
MOTHAPO
.........................................................................
APPLICANT
And
METAL AND
ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
...............................................................................
FIRST
RESPONDENT
JAN STEMMETT
N.O
.................................................................................
SECOND
RESPONDENT
BEVCAN ROSSLYN
(Division of
NAMPAK)
...............................................
THIRD
RESPONDENT
Heard: 11 August
2015
Delivered: 12
August 2015
JUDGMENT
VAN NIEKERK J
Introduction
[1] This is an
application to review and set aside a ruling made by the second
respondent, to whom I shall refer as the commissioner.
In his ruling,
the commissioner refused to condone the late referral of an unfair
dismissal dispute by the applicant. The applicant
had been dismissed
on 25 May 2011. He referred his dispute to the second respondent only
on 21 January 2014, 940 days late.
The ruling
[2] The
commissioner’s ruling was clearly influenced by the period of
the delay in this matter. In his award, he says the
following:
3.1 I find that the
degree of lateness (940 days, which is more than 31 months or 2 ½
years) is excessive in the extreme.
The applicant would have to
furnish a very good reason for the delay.
3.2 The applicant
provided proof of his initiation as a traditional healer, but the
exact dates of his initiation treatment are
not clear because the
commencement date he provides (6/6/2011), does not correspond with
the date provided by Dr Chauke (3/6/2011).
It is also not clear
whether the applicant was confined to treatment at all times until
4\8\2013. This would appear not to be the
case, since the applicant
states that after his initiation, he went for cleansing and further
rituals which took about four months.
3.3 The applicant
fails to explain what prevented him from lodging a dispute or
approaching the council for advice, from the time
of his dismissal
until the commencement of his initiation.
3.4 The applicant
also fails to explain what prevented him from lodging a dispute after
completion of his treatment in August 2013
until he eventually
approached the council in January 2014.
3.5 Although there
is no opposing affidavit from the respondent and even if the sanction
of dismissal was too harsh, I am not persuaded
that the applicant is
furnished an acceptable reason for the delay of 940 days.
3.6 I take into
account that the applicant will be prejudiced of condonation is not
granted, but I also have to take into account
the respondent’s
interest in having finality and that respondent will be prejudiced if
condonation is granted on the poor
explanation given by the applicant
for the delay.
The grounds for
review
[3] The applicant
asserts that the ruling was not the one to which a reasonable and
objective decision-maker could have come to.
In doing so, the
applicant seeks in his founding affidavit to introduce new factual
material which he contends he would have brought
to the
commissioner’s attention by way of clarifying any uncertainty
that may have existed in relation to the papers that
served before
the commissioner.
The applicable
legal principles
[4] The threshold
for review is fairly well-established. Section 145 permits the review
of an arbitration award, amongst other grounds,
where the arbitrator
commits a gross irregularity. This extends to latent gross
irregularities or, put another way, instances where
an arbitrator
fails to apply him or herself to the available evidence, makes defect
of factual findings and the like. In these
instances, a party seeking
to set aside an award or ruling must establish both the irregularity
or defect relied on and that the
Sidumo threshold is met. In Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA & others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC), the Labour Appeal Court noted that it is not
sufficient for an award to be set aside simply to establish a gross
irregularity
in the conduct of the arbitration proceedings; in the
event that a gross irregularity in the conduct of the proceedings is
established,
it is incumbent on an applicant to establish that the
result was unreasonable or ‘put another way, whether the
decision
that the arbitrator arrived at is one that falls outside the
band of decisions to which a reasonable decision-maker could come to
on the available material’. In other words, the review court
must consider whether despite the arbitrator’s reasoning,
the
result is nevertheless capable of justification on the available
material.
[5] What this
analysis requires where what is at issue is any assessment of whether
a reviewable defect and/or irregularity has
occurred or what its
impact is to be upon an award, is a determination first of the nature
of the error alleged to have been committed
by the arbitrator and any
distorting effect that the error may have had on the outcome of the
arbitrator’s award. If it is
reasonably clear that but for the
identified error relied upon the award would have been different or
cannot stand on its own reasoning,
then it is prima facie an
unreasonable award. The court must then have regard to the issues and
the evidence as a whole to determine
whether or not the outcome is
nevertheless capable of being sustained on the Sidumo test. This test
reinforces the difference between
a review on the one hand and an
appeal on the other and makes clear that a reviewing court is not
entitled to intervene simply
because it would have come to a
different conclusion on the same material.
Analysis
[6] I am unable to
find on the papers before me that the commissioner committed any
reviewable defect or that any irregularity occurred
in the
proceedings under review. The commissioner had regard to all of the
factors to which he was obliged to have regard to. The
exercise of
discretion which was based on relevant factors, having regard to
facts that are not in dispute.
[7] In so far as the
applicant in the present proceedings suggests that the award is
reviewable simply because the commissioner’s
decision was made
in Chambers, there is no merit in that submission. The commissioner
had before him an unopposed application and
was entitled to deal with
the merits of the application without convening a hearing. The
applicant ought to have made out his case
as comprehensively as
possible in his founding affidavit. It is not open to an applicant in
a review application to make out a
case that ought to have been made
before the commissioner. In short, there was no demonstrable
prejudice to the applicant in the
manner in which the ruling under
review was made.
[8] Given the above
findings, it is not necessary for me to consider whether the outcome
of the proceedings can nonetheless be sustained
having regard to the
record. Even if I were called upon to make this decision, I am unable
to find on the papers that the commissioner’s
decision falls
outside of a band of decisions to which reasonable people could come
to on the available material. In this regard,
the period of the delay
is in itself a basis on which condonation ought to be refused.
[9] An application
for review is described in the Practice Manual as an application akin
to an urgent application. To condone referrals
as late as the
referral in the present matter would be to undermine the statutory
purpose of expeditious dispute resolution. Insofar
as the applicant’s
explanation for his delay is concerned, it is trite that an applicant
seeking condonation must explain
each period of the delay and must
provide an explanation that covers in full all the aspects relating
to the reasons for the delay.
A listing of significant events which
took place during the period in question without any explanation for
the time that elapsed
between these events does not place the court
in a position properly to assess the explanation for the delay. The
failure to provide
a proper explanation in the sense referred to
above, will normally result in the failure of an application for
condonation on that
ground alone, regardless of any prospects of
success on the merits. As I have indicated above, that the
explanation is required
to be made out in full in the application
made to the first respondent. Since the present application is
unopposed, I do not intend
to make any order as to costs.
For the above
reasons, I make the following order:
1. The application
is dismissed.
ANDRÉ VAN
NIEKERK
JUDGE OF THE
LABOUR COURT
APPEARANCES
For the
Applicant: Union Official