About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 471
|
|
Sereth Investments (Pty) Ltd v National Bargaining Council for the Road Freight Industry and Others (JR1243/2013) [2015] ZALCJHB 471 (16 October 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Case
no: JR 396/14
In
the matter between:
NATIONAL
UNION OF
MINEWORKERS First
Applicant
THABO
PHAMOTSE
Second
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION First
Respondent
JSC
NKOSI
N.O. Second
Respondent
GFI
MINING SOUTH AFRICA (PTY)
Third
Respondent
Heard:
10 July 2015
Delivered:
16 October 2015
Summary:
Review of a condonation ruling
JUDGMENT
COOK
AJ,
Introduction
[1]
This is a
review instituted by the Applicant in terms of Section 158(1)(g) of
the Labour Relations Act (“LRA”). The
Applicant seeks to
review the condonation ruling of the Second Respondent (“the
commissioner”) under the auspices of
the First Respondent (“the
CCMA”) under case number GAJB310905-13 (“the ruling”).
[2]
The
Applicants seek the following relief:
2.1
To
review and set aside the ruling issued by the Second Respondent under
case number GAJB310905-13;
2.2
Substituting
the Commissioner’s ruling with one that condonation application
is granted; and
2.3
Ordering
the First Respondent to set the matter down for arbitration.
[3]
The
Third Respondent (“the mine”) opposes the review and
seeks that the application be dismissed with costs.
Background
[4]
The
employee resigned on 2 May 2012 and only referred the dispute to the
CCMA on 20 December 2013. Accordingly, the delay is 18
months.
[5]
The
Commissioner, in his analysis, stated:
‘
The
degree of lateness is excessive and is not mitigated by the reason
for the delay and is not consistent with the reason for the
delay.
The Applicant resigned in 2013 but escalated the matter a year later
yet at all material times he was represented by the
union. The
Applicant does not make out a prima facie case. He alleges a
constructive dismissal. The Applicant was merely
redeployed and
his concerns were handled by the Respondent. The Applicant speculates
he would have been dismissed. The Respondent
stands to be irreparably
prejudiced if condonation is granted. Having regard to all the
circumstances and specifically the weight
of prejudice, I come to the
conclusion that condonation should be denied.’
[1]
Case
law
[6]
In
Herholdt
v Nedbank Limited, (Congress of South African Trade Unions as Amicus
Curiae),
[2]
the SCA described the standard of review as follows:
‘
In
summary, the position regarding the review of CCMA awards is this: 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
inquiry 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 their effect is to render the
outcome unreasonable.’
[7]
The
general principles applicable to condonation applications were set
out in the case of
Melane
v Santam Insurance Co Ltd,
[3]
where it was said:
‘
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success and the importance of the case. Ordinarily these
facts are
interrelated, they are not individually decisive, save of course that
if there are no prospects of success there would
be no point in
granting condonation.’
[8]
The
court must be appraised of all the facts and circumstances relating
to the delay. The applicant for condonation must provide
a
satisfactory explanation for each period of delay.
[4]
Analysis
[9]
The
reasons for the excessive delay are contained in the affidavit filed
in the application for condoning the late referral.
[5]
[10]
The
Court is in agreement that the explanation provided is unacceptable.
The explanation provided shows culpability on behalf of
the employee
and the union. The union acted with ineptitude in dealing with the
employee’s matter.
[11]
The
Court cannot fault the Commissioner’s finding in respect of the
prospects of success in this matter. The employee did
not establish
that the employer had made the employment relationship intolerable.
Rather telling in this matter is that the employer
did not lodge any
grievance in this matter and the employee also worked out his notice
period. The employee also applied for voluntary
retrenchment and only
after that was not granted, did the employee decide to resign.
[12]
Even
on the employee’s own version, the working conditions had not
become so unbearable that the employee could no longer
reasonably be
expected to endure them. The employee need not have resorted to the
termination of the employment relationship, which
was the remedy of
last resort.
[13]
The
finding of the Commissioner that the mine would be prejudiced is also
a reasonable finding in that the mine deserved and was
entitled to
the speedy and expeditious dispute resolution and this would have
been frustrated by the lengthy delay in this matter
as well as the
fact that the mine would have had to defend a claim that was without
merit.
Conclusion
[14]
The
finding of the Commissioner in this matter on a proper conspectus of
all the evidence before him is a reasonable finding and,
accordingly,
the review application ought to be dismissed.
[15]
The
Court finds no reason why, in law and fairness, costs should not
follow the result.
[16]
Accordingly,
the Court makes the following order:
1.
The
review application is dismissed with costs.
____________
Cook
AJ,
Acting
Judge of the Labour Court of South Africa
APPEARANCES.
For
the Applicant:
Advocate Z M Navsa.
Instructed
by:
Solomon Holmes Attorneys.
For
the Respondent:
Mr P Motaung
Instructed
by:
Nomali Tshabalala Attorneys
[1]
Page
16, index to pleadings.
[2]
[2013]
11 BLLR 1074
(SCA) at para 25.
[3]
1962 (4) SA 531
(A) at 532C-E.
[4]
See
NUMSA
and Another v Hillside Aluminium
[2005] ZALC 25
;
[2005] 6 BLLR 601
(LC) at para 12.
[5]
I
ndex
to the bundle of documents at
21-23,
paras 39 to 56
of.