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[2015] ZALCJHB 408
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UCIMESHAWU obo Mohale v Commission for Conciliation, Mediation and Arbitration and Others (JR2753/12) [2015] ZALCJHB 408 (19 November 2015)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Reportable
Case No: JR 2753/12
In
the matter between:
UCIMESHAWU
obo
SAMSON
MOHALE
Applicant
and
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
JACOB DANIEL SELLO;
N.O.
Second Respondent
THE
BUTCHER SHOP &
GRILL
Third Respondent
Heard:
13 August 2015
Judgment
:
19 November 2015
Summary:
Application for review in terms of s 145 of the LRA; Application
launched outside the prescribed six
weeks’ time frame;
Application for condonation launched over 16 months after the review;
Explanation for the delay insufficient
and inadequate; No application
to condone the late delivery of the condonation application itself;
Prospects of success on review
extremely poor; Condonation refused
and review application dismissed with costs.
JUDGMENT
VOYI AJ.
[1]
This is an application to review and set
aside an arbitration award that was issued by the Second Respondent
(“the Commissioner”)
on 22 October 2012 under case number
GAJB19813-12.
[2]
The Commissioner issued the arbitration
award following arbitration proceedings that were conducted under the
auspices of the First
Respondent (“the CCMA”
)
on 23 August 2012 and 10 October 2012.
[3]
The application for review is launched by
UCIMESHAWU, a trade union acting on behalf of one Mr Samson Mohale
(“
Mr
Mohale”
).
Only the Third Respondent opposes the review application.
[4]
The
Applicant’s review application is launched in terms of s 145 of
the Labour Relations Act (“the LRA”).
[1]
Under ss 1(a) of s 145 of the LRA, it is stipulated that an
application for an order setting aside an arbitration award must be
applied for ‘
within
six weeks of the date that the award was served on the applicant
,…’.
[5]
In the present matter, it is accepted that
the arbitration award was served on the Applicant on 22 October 2012.
The prescribed
six (6) weeks expired on 03 December 2012. The
Applicant’s review application was only delivered on 17 January
2013, over
six (6) weeks after the actual due date for the
application.
[6]
In the answering affidavit delivered by the
Third Respondent on 14 March 2013, it was pointed out that the
Applicant’s application
for review was brought out of time.
Despite being alerted to the need to apply for condonation as per the
answering affidavit delivered,
the Applicant took no steps to launch
the required application until June 2014.
[7]
On account of observed delays in the
prosecution of the review application, the Third Respondent was
prompted to launch an application
for the dismissal of the review.
The Application to dismiss was launched on 11 February 2014. It was
launched in terms of Rule
11 of the Labour Court Rules.
[8]
The application to dismiss came before this
Court for hearing on 22 April 2014, on which date this Court ordered
the Registrar to
enrol the review application for hearing on the
opposed motion roll. In essence, the application to dismiss was
not granted
and, instead, the Registrar was directed to enrol the
application for review for hearing.
[9]
The application for review came before me
for hearing on 13 August 2015. On behalf of the Third Respondent, the
issue concerning
the late delivery of the review application was
pertinently raised. It was somewhat conceded on behalf of the
Applicant that the
review application was, indeed, filed out of time.
[10]
The explanation tendered for the late
delivery of the review appears at paragraph 4 of the affidavit in
support for the Applicant’s
condonation application. It reads
thus:
‘
The
review application was applied by myself within six weeks which is in
line with section 145 of LRA 66 of 1995 as per form 1,
however I am
told that I should have filed the papers within six weeks while I
only filed them twenty six days late which is not
excessive if that
is the case, I respectfully submit that the failure was not
deliberate and wilfully but it was due to different
interpretation of
the same section 145 of the Act.’
[11]
At the hearing of the matter, the above
explanation was expanded upon with a submission that the Applicant
filed its application
for a case number well within the six (6) weeks
stipulated in s 145(1)(a) of the LRA.
[12]
It was, therefore, the Applicant’s
contention that the review application cannot, necessarily, be
regarded as late if the
application for a case number was filed
within six (6) weeks from the date of service of the arbitration
award on the Applicant.
[13]
An application for a case number is
required by Rule 3(1) of the Labour Court Rules. This Rule provides
as follows:
‘
Any
party initiating
any proceedings must apply for a case number before serving any
documents. The application for a case number must
be made to the
registrar in the registrar's office or by fax. If the application is
made by fax, Form 1 must be used.’
[14]
It is clear from the above provisions of
Rule 3(1) that applying for a case number is distinct from serving
any documents initiating
any proceedings. The notion that the
filing of only an application for a case number is in compliance with
the prescribed
six (6) weeks’ time frame under s 145(1)(a) of
the LRA is demonstrably incorrect.
[15]
It terms of s 145(1)(a) of the LRA, an
applicant is required to ‘apply’ to the Labour Court for
an order setting aside
the arbitration award within the prescribed
six (6) weeks.
[16]
In
NCBAWU
v Masinga and others
,
[2]
it was held thus:
‘
The
application is one governed by
s
145
of
the Labour Relations
Act
66 of 1995
(the
Act). This section provides that in a case such as the present one
the aggrieved party must apply for review within six
weeks of
the date of the award being served on the applicant. I assume that
'apply' means file the papers with all relevant
parties and file
the papers with the registrar. The filing and service of an
application is what is intended by the word 'apply'.’
[3]
[17]
This
Court has in the past held that the mere filing of a notice of
motion, unaccompanied by a supporting affidavit, cannot be regarded
as being in compliance with the requirement to bring an application
for review within six (6) weeks.
[4]
It is even worse in this matter as we are dealing with a filing of
only an application for a case number as contemplated by Rule
3(1) of
the Labour Court Rules.
[18]
If indeed the Applicant truly believed in
its understanding and interpretation of the provisions of s 145(1)(a)
of the LRA, read
together with Rule 3(1) of the Labour Court Rules,
it is difficult to appreciate why it eventually applied for
condonation.
[19]
The Applicant, however, persisted with its
erroneous interpretation and argued that the review was not brought
out of time. As a
fall-back position, the Applicant made reference to
its application for condonation which was delivered in June 2014.
[20]
Whichever stance is taken by the Applicant,
I am unable to find an acceptable explanation for the delay in
delivering the review
application on time. The explanation which is
half-heartedly tendered in the condonation application itself is
simply inadequate
and falls far short of what is required of a late
application.
[21]
To
make matters worse, the application for condonation itself was
delivered way out of time and no explanation for the delay in
launching same, as soon as the need to do so arose, is given.
[5]
[22]
The
application for review was delivered on 17 January 2013 and the
application for condonation was launched only in June 2014.
The
Applicant, in the affidavit in support of condonation, fails to
explain why it took such a long time to launch the application
for
condonation. This failure, on the part of the Applicant, is in my
opinion fatal to the success of the application for condonation
itself.
[6]
[23]
In addressing its prospects of success, the
Applicant simply re-visits the merits of the dismissal dispute. The
Applicant, therefore,
fails to address its prospects of success in
relation to the review application.
[24]
Nonetheless and gleaning from the review
papers as they stand, it becomes apparent that the Applicant’s
prospects of success
with the review are simply non-existent.
[25]
The Applicant’s grounds for review
are not sufficiently articulated and as they stand, they are not
adequate to upset the
Commissioner’s arbitration award. The
grounds for review are succinctly set out as follows:
‘
1.
The
2
nd
respondent was well aware of the charges against me that they were
bsed (sic) on assumptions as per annexure “A” attached,
but without clear reasons ruled in company’s favour.
2.
It was obvious from the company evidence and charges that I did not
influence or persuade
Susan therefore there was no misconduct
committed.
3.
It was also common cause that I had no powers to influence or
persuade the senior member
of management, Susan but only represented
Msawakhe and suggested.
4.
There was no evidence presented that I broke any company rule by
suggesting and representing
Msawakhe on if he could receive his
UIF benefits while he was unemployed.
5.
The 2
nd
respondent did not exercise his powers afforded to
him by LRA 66 of 995 as amended.
6.
It is respectfully submitted that his
ruling stands to be reviewed and set aside in terms of the
Act as
section 145 alternatively at section 158(1)(g)
7.
The 2
nd
respondent did not exercise his discretion
properly when considering submissions made to him hence his action
was grossly unreasonable
towards the applicant.’
[26]
The Applicant opted not to supplement the
above grounds for the review after delivery of the record of the
arbitration proceedings.
It simply delivered the notice envisaged by
Rule 7A(8)(b) of the Labour Court Rules.
[27]
In his arbitration award, the Commissioner
correctly pointed out that what was at the heart of the dispute was
the role of the Applicant’s
member (being Mr Mohale) during the
conversation which gave rise to the misconduct charges being brought
against the said member.
[28]
The misconduct charges emanated from an
incident which occurred on 2 March 2012. On this date, Mr Mohale was
approached by a former
employee of the Third Respondent (being one Mr
Musawakhe Ngubane) who had recently resigned.
[29]
It was Mr Ngubane’s desire to obtain
Unemployment Insurance Fund benefits despite having resigned. In
order to archive this,
Mr Ngubane enlisted the help of Mr Mohale. The
two approached the Third Respondent’s accounts manager, being
one Ms Suzan
Walklett.
[30]
Ms Walklett was approached with a request
that the UI19 form be altered to read that Mr Ngubane had not
resigned but was dismissed
so as to obtain Unemployment Insurance
Fund benefits.
[31]
It was Mr Mohale’s stance that he was
merely an interpreter for Mr Ngubane and, therefore, did not directly
request the Third
Respondent, through Ms Walklett, to alter its
records. It was, however, the Third Respondent’s case that this
request was
directly made by Mr Mohale and that he was not acting as
a mere interpreter.
[32]
As pointed out above, the Commissioner’s
approach to the matter was to consider Mr Mohale’s role during
the conversation
with Ms Walklett.
[33]
Under his analysis of the evidence and
arguments, the Commissioner pointed out that he was faced with two
conflicting versions.
He expressed himself as follows:
‘
I
was faced with two mutually destructive versions and had to conduct a
credibility test in order to decide which version to accept.
I found
the evidence of Walklett to be probable and convincing. She adduced
her evidence without any slightest iota of contradiction
and she was
clearly comfortable during cross-examination. The same could not be
said about the Applicant.’
[34]
In the end and after making some key
observations, the Commissioner concluded as follows:
‘
I,
therefore, accept the [Third Respondent’s] evidence that [Mr
Mohale] approached Walklett to change the reason of Ngubane’s
termination on the form UI19 from resignation to dismissal.’
[35]
The above finding was decisive to the
merits of the dismissal dispute. The Applicant’s member was
disciplined and dismissed
on charges pertaining to an act of
dishonesty.
[36]
Based on what is averred in the founding
affidavit in support of the review application, I find no basis to
set aside the Commissioner’s
decision. To me, the said decision
falls well within the realm of reasonable decisions that could be
made by reasonable decision
makers.
[37]
On the basis of (i) there being no
acceptable explanation for the delay in timeously delivering the
application for review, (ii)
there being no explanation, at all, for
the late delivery of the application for condonation itself, and
(iii) there being no prospects
of success with the review
application, I have no hesitation in refusing the Applicant’s
application for condonation.
[38]
With condonation being refused, the
Applicant’s application for review stands to be dismissed. As
for costs, I see no reason
why same should not follow the results.
Order
[39]
I, accordingly, make the following order:
39.1 The Applicant’s
application for condonation of the late delivery of the application
for review is dismissed.
39.2 The Applicant’s
application for review is dismissed.
39.3
The Applicant is ordered to pay the Third Respondent’s costs.
NP
Voyi
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Union Official
For
the Third Respondent:
Representative from the Employer’s
Organisation
[1]
Act No. 66
of 1995.
[2]
[2000] 2
BLLR 171 (LC).
[3]
At para 6.
[4]
See:
Queenstown
Fuel Distributors CC v Labuschagne NO and others
(1999) 20
ILJ
928 (LC).
[5]
Seatlolo
and others v Entertainment Logistics Service (A Division of Gallo
Africa Ltd)
(2011)
32
ILJ
2206 (LC) at para 10;
Mogola
and another v Head of Department: Department of Education
(2012) 33
ILJ
1203 (LC) at para 23(iv).
[6]
See:
Roto
v Commission for Conciliation Mediation and Arbitration and others
(JR 1546/14) [2015] ZALCJHB 73 (5 March 2015) at para 11(f).