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[2015] ZALCJHB 289
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National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR2227/11) [2015] ZALCJHB 289 (9 September 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR2227/11
DATE:
09 SEPTEMBER 2015
Not
Reportable
In the matter
between:
NATIONAL UNION OF
MINEWORKERS
.................................................................
First
Applicant
SIPHO
MAGAGULA
...............................................................................................
Second
Respondent
And
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
..........................................................................
First
Respondent
BORMAN
LUCAS
NO
............................................................................................
Second
Respondent
EXXARO
REDUCTANTS (PTY)
LTD
....................................................................
Third
Respondent
Delivered:
9 September 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
The Applicants seek condonation for the
late service and filing of the review application. In the event that
condonation is granted,
they further seek to review and set aside the
arbitration award issued by the Second Respondent (The Commissioner)
on 12 June 2011
under case number LP4891-10. In the award issued
under the auspices of the First Respondent (CCMA), the Commissioner
found that
the dismissal of the Second Applicant (Magagula) by the
Third Respondent (‘Exxaro’) was procedurally and
substantively
fair. Both applications are opposed by Exxaro.
The condonation
application and evaluation:
[2]
Magagula was employed by Exxaro as a Senior
Process Controller. He was dismissed pursuant to a disciplinary
enquiry held on 16 July
2010 on account of allegations of misconduct.
NUM had referred a dispute to the CCMA on Magagula’s behalf,
resulting in the
award that is the subject matter of the review
application.
[3]
In terms of the provisions of section 145
(1) (a) of the Labour Relations Act (the LRA), the review application
ought to have been
filed within six weeks of the date that the award
was received. The review application was filed and served on 16
September 2011,
which is some 49 days outside of the statutory time
limits.
[4]
Section
145 (1A) of the LRA provides that the Court may on ‘good cause’
shown, condone the late filing of an application
in terms of
subsection 1. The Court has a discretion whether to grant condonation
or not, and in exercising that discretion, the
Court will take into
account the principles and factors enunciated in
Melane
v Santam Insurance Company Ltd
[1]
,
being the degree of lateness; the explanation for non-compliance with
the time frame; the prospects of success; and the importance
of the
case.
[5]
Other
considerations which other Courts have alluded to include the
convenience of the court and the avoidance of unnecessary delays
in
the administration of justice
[2]
.
It is also accepted that these factors are not individually decisive
but are interrelated and must be weighed against each other.
In
Brummer
v Gorfil Brothers Investments (Pty) Ltd
[3]
,
Jacoob J further stated that the interests of justice should be an
overall consideration when dealing with such applications.
[6]
In
weighing these factors against each other, and further in exercising
its discretion, the Labour Appeal Court in
NUM
v Council for Mineral Technology
[4]
held that the court must do so
judicially
upon a consideration of all the facts of the case. The Labour Appeal
Court further added that;
“
A
slight delay and a good explanation may help to compensate for
prospects of success which are not strong. The importance of the
issue and strong prospects of success may tend to compensate for a
long delay. There is a further principle which is applied and
that is
that without a reasonable and acceptable explanation for the delay,
the prospects of success are immaterial, and without
prospects of
success, no matter how good the explanation for the delay, an
application for condonation should be refused”
[7]
Where
condonation is sought within the context of an application for a
review, the Labour Appeal Court in
A
Hardrodt (SA) (Pty) Ltd v Behardien and Others
[5]
in reference to
Queenstown
Fuel Distributors CC v Labuschagne NO and Others
[6]
held that;
‘
The
principles laid down in that case included, firstly that there must
be good cause for condonation in the sense that the reasons
tendered
for the delay had to be convincing. In other words the excuse for
non-compliance with the six-week time period had to
be compelling.
Secondly, the court held that the prospects of success of the
appellant in the proceedings would need to be strong.
The court
qualified this by stipulating that the exclusion of the appellant's
case had to be very serious, ie of the kind that
resulted in a
miscarriage of justice.’
The extent of the
delay and explanation:
[8]
The review application was filed some 49
days out of time. The delay is excessive
albeit
not in the extreme. Be that as it may, a compelling explanation is
still required in order for an indulgence to be granted.
[9]
In explaining the delay, Mr David
Radibotseng, the Regional Organiser of NUM averred that having
received a copy of the award, he
had forwarded it to the union’s
head of the legal department. The head of the legal department only
instructed the applicants’
attorneys of record on 28 June 2011
to furnish an opinion on whether the award was reviewable or not.
[10]
The attorneys of record had on 29 June 2011
and on 4 July 2011 sent correspondence to the Union requesting a
bundle of documents.
Radibotseng had then made arrangements for the
documents to be delivered to the union’s head office for
collection by the
attorneys of record. On 6 July 2011 the attorneys
of record had perused the documents. However due to the work schedule
of both
the attorneys of record and Radibotseng, the matter was only
discussed on 20 July 2011. On 8 August 2011, the attorneys of record
had reverted to the union on the matter, and on the issues which
required Magagula’s input.
[11]
Between 4 July 2011 and 12 August 2011
Radibotseng had made attempts to contact Magagula. Only on 13 August
2011 did Radibotseng
manage to contact Magagula and inform him to
attend to the Union’s offices in Lephalale. Magagula, due to
being unemployed
was only able to raise money and attended to the
office of the union on 30 August 2011. On 31 August 2011
consultations were then
held with the attorneys of record. The review
application was according to Radibotseng filed on 9 September 2011,
and the delay
was not due to any negligence on the union’s
part.
[12]
It is my view that the reasons proffered
for the delay in filing the review application are neither compelling
nor satisfactory.
As it was correctly pointed out on behalf of
Exxaro, the explanation is starved for details, and no full account
was given for
each and every period of the delay. The first
difficulty with the applicants’ application is that it is trite
that an applicant
must seek condonation as soon as it becomes
apparent that the time frames have not been complied with. In this
case, the review
application was filed and served on 16 September
2011 (not 9 September 2011 as alleged by Radibotseng).
[13]
As can be gleaned from paragraph 64 of the
founding affidavit to the review application, the applicants knew
that there was indeed
a need for an application for condonation.
Notwithstanding that fact, the application was only filed on 13
September 2012, some
one year after the review application was filed.
There is no explanation as to the reason the condonation application
was not filed
simultaneously with the review application or soon
thereafter.
[14]
A further difficulty with the application
for condonation is that the confirmatory affidavit of Magagula is
unsigned. If indeed
there were consultations held with Magagula on 31
August 2011 as alleged, it remains inexplicable that the issue of
condonation
could not have been settled then in the light of the
alleged difficulties in contacting him. To the extent that Magagula’s
confirmatory affidavit was unsigned when filed and served with the
founding affidavit, it is concluded that it is not properly
before
the Court, and any averments made in regards to him by Radibotseng in
the founding affidavit remains hearsay.
[15]
It is further trite that the work schedule
of union officials and attorneys of record cannot be a justifiable
excuse for not complying
with the time limits. Furthermore, the
excuse that Magagula was unemployed and thus not having the necessary
finances to travel
from his hometown to Lephalale for consultations
with Radibotseng is even more inexcusable. There is no explanation as
to what
NUM did to assist Magagula as its member to ensure that he
managed to travel to Lephalale for consultations. Radibotseng having
represented Magagula in the arbitration proceedings was clearly
familiar with the facts of the case. There was therefore no need
for
Magagula to be present for the purposes of filing the review
application, as there was always an option of filing a supplementary
affidavit once the requirements of Rule 7 had been complied with.
[16]
Furthermore, the averment to the effect
that there were attempts to contact Magagula between 4 July 2011 and
13 August 2011 is hardly
substantiated. It is not known how and when
these attempts were made and what the difficulties were in
successfully contacting
him. Any attempts by the applicants in
filling up these gaps in the replying affidavit are indeed futile, as
it is trite that a
case cannot be made out in the replying affidavit.
[17]
Even
if consultations were only held on 31 August 2011 with the attorneys
of record, there is still no explanation for the delay
between that
date and 16 September 2011 when the review application was ultimately
filed. On the whole, and having had regard to
the attempt to explain
the delay in the filing of the review application, I am satisfied
that in the words of Zondo JP (as he then
was)
in
Moila
v Shai N.O. and Others
[7]
,
the
Applicants’ purported explanation for the delay is no
explanation at all
.
To
the extent that no explanation has been proffered, ordinarily it
would not be necessary to deal with other considerations relevant
to
such applications. However for the sake of completeness, I will
address the applicants’ prospects of success on the merits.
Prospects
of success:
[18]
In
regards to the approach in dealing with the aspect of prospects of
success, this Court in
Gaoshubelwe
and Others v Pieman's Pantry (Pty) Ltd
[8]
stated the following:
‘
The
prospects of success or bona fide defence on the other hand mean that
all what needs to be determined is the likelihood or chance
of
success when the main case is heard…’
[19]
The evidence presented at the arbitration
proceedings can be summarised as follows;
19.1
Magagula was prior to his dismissal, also an elected shop steward.
Exxaro had opened a new gas plant which
was considered to be
hazardous. The Mines, Health and Safety Act
[9]
required Exxaro to ensure that all of its employees were trained and
competent to operate the plant. In this regard, Exxaro did
not
operate night shifts, but employees worked according to a roster in
terms of which they were on duty for four days, and off
duty for the
other four days. Factored into the shift system as it then prevailed
was a training schedule.
19.2
General meetings were held with the local branch of NUM, with
Magagula also present, to discuss concerns
regarding attendance at
scheduled training. According to the evidence of Mtegha, Exxaro’s
Operations Manager, employees were
initially reluctant to attend
training sessions as scheduled. At some point after discussions were
held with the Union, most employees
undertook the training. On 21
June 2010, Magagula and two other employees however refused to attend
the training sessions even
after being instructed to do so. They were
subsequently charged with absenteeism without permission; failing to
inform management
in good time; improper behaviour damaging to the
interests of the company; insubordination and failure to obey
instructions.
19.3
During the internal disciplinary enquiries, the other two employees,
as part of their mitigating factors,
undertook to attend the training
and were issued with final written warnings. Magagula however did not
make any such commitment.
The chairperson of the enquiry took the
failure to make a commitment as an aggravating factor and dismissed
him.
[20]
Magagula’s testimony as summarised by
the Commissioner was that he was indeed scheduled to attend training
on 21 June 2010.
He however failed to attend it as it was his day off
and no prior arrangements had been made with him to be at work on his
day
off. The charges initially preferred against him were withdrawn
as a meeting was arranged with management for 24 June 2010 to discuss
issues surrounding work hours and training hours. The charges were
nevertheless reinstated, and he was subjected to a disciplinary
enquiry.
[21]
The Commissioner’s conclusions were
as follows;
21.1
The dismissal was procedurally fair and there was no substance to the
allegations that the presiding officer
of the enquiry was junior to
the initiator and had been intimidated into dismissing Magagula.
Magagula was afforded an opportunity
to appeal but chose not to.
There was no inconsistency in regard to the three employees being
given an opportunity to review their
position, and since Magagula had
refused to commit to future training schedules, this was taken into
account when mitigating factors
were considered.
21.2
In regards to substantive fairness, the Commissioner found that
employees used to attend training as scheduled
until NUM shop
stewards raised the issue with management. Following discussions with
management, training had resumed. Magagula
and others were placed on
shift C, which was scheduled for training on 21 June 2010. They
however did not attend as they alleged
that the training was
scheduled on their day off. However, the shift roster and hours of
work had been explained by management,
and they knew that the
training shift fell within the total of 45 hours per week they were
expected to work.
21.3
Magagula knew that his training was scheduled for 21 June 2010. He
further testified that training was important
and understood that it
was required in terms of the provisions of the Mines Health and
Safety Act. At the disciplinary enquiry,
Magagula was afforded an
opportunity to attend the training, but had refused to commit to it
in future
[22]
The
applicants’ grounds of review were that the Commissioner had
committed numerous gross irregularities in law and fact,
had failed
to apply his mind to the evidence presented, and failed to properly
analyse the evidence. It is now settled law that
an award of a
commissioner is susceptible to be reviewed and set aside if it can be
shown that the decision arrived at is one which
a reasonable
commissioner could not have arrived at in the light of the material
before him or her
[10]
. In
Herholdt
v Nedbank Ltd
[11]
,
the Supreme Court of Appeal,
per
Cachalia JA summarized the review test as follows
:
‘
A review of a
CCMA award is permissible if the defect in the proceedings falls
within one of the grounds in section 145(2) (a) of
the LRA. For a
defect in the conduct of the proceedings to amount to a gross
irregularity as contemplated by section 145(2) (a)(ii),
the
arbitrator must have misconceived the nature of the enquiry or
arrived at an unreasonable result. A result will only
be
unreasonable if it is one that a reasonable arbitrator could not
reach on all the material that was before the arbitrator.
Material errors of fact, as well as the weight and relevance to be
attached to particular facts, are not in and of themselves sufficient
for an award to be set aside, but are only of any consequence if the
effect is to render the outcome unreasonable.’
[23]
In
Goldfields
Mining South Africa (Pty) Ltd v
CCMA
and Others
[12]
the Labour
Appeal Court held that in the review court must ask the following
pertinent questions;
‘
The
questions to ask are these: (i) In terms of his or her duty to deal
with the matter with the minimum of legal formalities, did
the
process that the arbitrator employed give the parties a full
opportunity to have their say in respect of the dispute? (ii)
Did the
arbitrator identify the dispute he was required to arbitrate (this
may in certain cases only become clear after both parties
have led
their evidence)? (iii) Did the arbitrator understand the nature of
the dispute he or she was required to arbitrate? (iv)
Did he or she
deal with the substantial merits of the dispute? and (v) Is the
arbitrator’s decision one that another decision-maker
could
reasonably have arrived at based on the evidence?’
[13]
And
‘
Where
the arbitrator fails to have regard to the material facts it is
likely that he or she will fail to arrive at a reasonable
decision.
Where the arbitrator fails to follow proper process he or she may
produce an unreasonable outcome (see
Minister
of Health and Another v New Clicks South Africa (Pty) Ltd and Others
2006
(2) SA 311
(CC)). But again, this is considered on the totality of
the evidence not on a fragmented, piecemeal analysis. As soon as it
is
done in a piecemeal fashion, the evaluation of the decision
arrived at by the arbitrator assumes the form of an appeal. A
fragmented
analysis rather than a broad-based evaluation of the
totality of the evidence defeats review
as
a
process.
It follows that the argument that the
failure
to have regard to material facts
may
potentially
result
in a wrong decision has no place in review applications. Failure to
have regard to material facts must
actually
defeat the constitutional imperative that the award must be rational
and reasonable - there is no room for conjecture and
guesswork.’
[14]
[24]
In this case, the applicants’ grounds of review are without
substance. Insofar as the first four questions identified
in
Goldfields
are concerned, I did not understand the applicants’ case to be
that the Commissioner’s findings in that regard were
found
wanting. There are thus no prospects of success that the review court
can find that the decision reached by the Commissioner
was one that
no other reasonable decision maker could come to in the light of the
material placed before him. These conclusions
are fortified by the
following;
The
main reason that led to Magagula’s dismissal was that he had
refused to attend a training scheduled for 21 June 2010.
Under
cross-examination, Magagula had conceded that training was important,
and that the employer had a duty to keep a competent
workforce
[15]
.
He had accepted that the new plant was delicate and a dangerous area,
and it was important for all employees to be competent to
do their
jobs. This invariably could only be made possible through proper
training. He had further accepted that the employer had
a right to
discipline employees who refused to attend training. He had conceded
that he did not attend the training scheduled for
21 June 2010. He
had nevertheless testified that the training was scheduled on his off
day, that he already had something planned
for that day as he was not
supposed to be at work. It was nevertheless put to him that Exxaro’s
witnesses’ testimony
to the effect that the 21
st
of June 2010 was not a day off was never disputed in the arbitration
proceedings, and to this end, there was no substance to his
contention that he was supposed to be off duty on that day.
[25]
Crucial in this case however was the lifeline given to Magagula
during the disciplinary proceedings. The other employees similarly
charged with him had shown contrition, and had committed to attending
the training sessions in future. Magagula on the other had
remained
recalcitrant and refused to make any such undertaking. This can be
gleaned from his examination-in-chief where he was
asked questions by
his representative Mr Radibotseng regarding future commitment to
attend training
[16]
. Magagula
had conceded that he was asked questions by the Chairperson as to
whether he would commit to future training and his
response was that
he had not made such an undertaking as he could not answer the
question then ‘as he did not know
what would happen to him in
the future’. His testimony was further that the other employees
received final written warnings
whilst he was dismissed because he
could not answer whether he was prepared to commit to future
training.
[26]
In circumstances where Magagula appreciated the importance of the
training in the light of Exxaro’s operations, and further
in
view of his own version that he had always propagated for other
employees to be trained, it is therefore inexplicable that having
failed to attend such training in circumstances where he was supposed
to have done so, he would in the course of a disciplinary
process,
and where afforded a life-line, refuse to make any future commitment
to such training. In these circumstances, I fail
to appreciate how it
can be argued that the Commissioner’s conclusions that the
dismissal was substantively fair are not
reasonable.
[27]
The applicants’ further arguments surrounding the conclusions
of the Commissioner in regards to procedural fairness are
equally
without merit. The Commissioner had appreciated that he was
constrained by the failure of Exxaro to call upon the chairperson
of
the internal disciplinary enquiry to testify. Central to the dispute
in this regard was whether the chairperson, who had reported
to the
initiator was intimidated into dismissing the applicant. Firstly, it
was put to Magagula that he never disputed the evidence
of Viljoen
the initiator that that Darren Meyer, the chairperson did not report
to him. In my view, it is not sufficient to simply
make an allegation
that a chairperson’s findings were influenced in one way or the
other, or that the chairperson came to
his or her conclusions after
being intimidated. It is crucial where such allegations are made that
they should be supported by
evidence to indicate in what manner the
chairperson was intimidated or how he or she was influenced into
arriving at a particular
decision. Having gone through the record,
the only issue that was raised in this regard was that the
chairperson reported to the
initiator and was therefore influenced or
intimidated. Nevertheless, there was no evidence to indicate in what
material respects
this was the case.
[28]
The applicants’ contentions in regards to the appeal procedures
are equally without merit. It was common cause that Magagula
was
represented at the appeal hearing by a NUM regional organiser, who
appeared to be only interested in a verdict rather than
making
submissions as requested by the appeal chairperson. No new
information was presented at the appeal, and in the light of
Magagula
and his representative’s approach to those proceedings not to
present anything new, there is no basis for any conclusion
to be
reached that they were not afforded an opportunity of an appeal
process.
[29]
A further ground of review in this regard related to inconsistency in
the application of the rule in that the other employees
who were
jointly and contemporaneously charged with Magagula were not
dismissed. Clearly this ground has no merit in the light
of the
conclusions reached that Magagula and others were afforded an
opportunity to commit to future training. Magagula had confirmed
that
he did not know what the other three employees said in the appeal
hearing that led to them not being dismissed. Nevertheless,
it was
not in dispute that the other employees had committed to future
training, whilst he had bluntly refused to do so. In those
circumstances, there can be no substance in the contention that he
was treated differently when he had rebuffed the opportunities
given
to him to show contrition and to commit to attend training in future.
[30]
In the light of the above factors, and having taken into account the
grounds of review as advanced by the applicants, there
are no
prospects that a finding can be made that the decision arrived at by
the Commissioner was one that no other reasonable Commissioner
could
have arrived at in the light of the material before him.
[31]
I have had regard to the excessive nature of the delay in filing and
serving the review application, the failure to proffer
any reasonable
or acceptable explanation in that regard, the lack of prospects of
success on the merits, and the prejudice that
would be caused to
Exxaro in the event that condonation was to be granted. In the light
of the factors, it is my view that it would
not be in interests of
justice to grant the application for condonation. I have also had
regard to considerations of law and fairness,
and I am of the view
that a cost order is not warranted in this case. Accordingly, the
following order is made;
Order:
i.
The application for the late filing of the
review application is dismissed.
ii.
The application to review and set aside the
arbitration award issued by the Second Respondent under case number
LP4891-10 dated
10 June 2010 is dismissed.
iii.
There is no order as to costs.
TLHOTLHALEMAJE,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For the
Applicant: Mr. P Motaung of Nomali Tshabalala Attorneys
For
the Third Respondent: Mr T Kubayi of AHI Employers Organisation
[1]
1962
(4) SA 531 (A).
[2]
Foster
v Stewart Scott Inc
(1997)
18 ILJ 367(LAC)
[3]
[2000] ZACC 3
;
[2000]
(2) SA 837
(CC) at 839 F
[4]
[1999]
3 BLLR 209
(LAC) at para 10.
[5]
(2002)
23 ILJ 1229 (LAC) at 1231C
[6]
(2000)
21 ILJ 166 (LAC).
[7]
(2007)
28 ILJ 1028 (LAC) at para 34
[8]
2009
30 ILJ 347 (LC) at para 27.
[9]
Act
29 of 1996
[10]
Sidumo
and Another v Rustenburg Platinum Mines and Others Ltd
2008
(2) SA 24 (CC)
[11]
[2013] 11 BLLR 1074
(SCA) par 25 at 1084.
[12]
2014] 1 BLLR 20 (LAC)
[13]
At para 20
[14]
At para 21
[15]
Line
4-5 of the record page 110
[16]
Page
102 of the transcribed record line 8 - 30