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[2015] ZALCCT 10
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Arries v Education Labour Relations Council and Others (C756/2013) [2015] ZALCCT 10 (5 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C756/2013
DATE:
05 FEBRUARY 2015
Not
Reportable
In
the matter between:
JULIE
ARRIES
.....................................................................................
Applicant
And
EDUCATION
LABOUR RELATIONS COUNCIL
..............
First
Respondent
RETIEF
OLIVIER
N.O
.......................................................
Second
Respondent
DEPARTMENT
OF EDUCATION:
WESTERN
CAPE
..................................................................
Third
Respondent
Date
heard: 9 October 2014
Delivered:
5 February 2015
JUDGMENT
RABKIN-NAICKER
J
[1]
The applicant seeks to review a condonation ruling by the second
respondent (the arbitrator) made on the 27 May 2013. The ruling
in
question refused condonation in the light of what the arbitrator
regarded as an excessive delay and lack of a reasonable explanation
for the delay. The arbitrator made a finding that the referral of
applicant’s dispute was 13 months late.
[2]
The applicant had been employed as an educator by the first
respondent as of 1994 at ParkDene primary school. He was
dismissed on 17 January 2012 and he then lodged an internal appeal,
which was rejected on 29 February 2012. The applicant then referred
the matter through his union (SADTU) to the first respondent on 26
April 2012. The union was of the understanding that the matter
was
referred in time and did not apply for condonation.
[3]
The arbitrator deals with the issue of the late referral in the
following manner:
“
The
application was more than 13 months late (out of 30 days),
considering the fact that the ELRC received the condonation
application
on the 19 April 2013 and the applicant alleged in that
application that he was dismissed on 29 February 2012.
The
applicant stated the reason for the delay that he submitted a
referral to his union SADTU on the 28
th
April 2012 . They
submitted it to the ELRC. He made numerous enquiries with SADTU and
that they stated they had submitted it within
the required time
limits. The ELRC indicated however that the matter was out of time
and that he had to submit a condonation application.
SADTU could not
provide proof that it was submitted in time and he referred the
matter to an attorney.”
[4]
The applicant submits that the ruling stands to be reviewed in that
the arbitrator committed a gross irregularity. The question
for this
court to determine is whether the arbitrator an error of law in that
he equated the delay in making an application for
condonation, with
the delay in referring the matter to the Council. Section 191(1) and
(2) of the LRA provide:
“
191Disputes
about unfair dismissals and unfair labour practices
(1)
(a) If there is a dispute about the fairness of a dismissal, or a
dispute about an unfair labour practice, the dismissed employee
or
the employee alleging the unfair labour practice may refer the
dispute in writing to-
(i)
a council, if the parties to the dispute fall within the registered
scope of that council; or
(ii)
the Commission, if no council has jurisdiction.
(b)
A referral in terms of paragraph (a) must be made within-
(i)
30 days of the date of a dismissal or, if it is a later date, within
30 days of the employer making a final decision to dismiss
or uphold
the dismissal;
(ii)
90 days of the date of the act or omission which allegedly
constitutes the unfair labour practice or, if it is a later date,
within 90 days of the date on which the employee became aware of the
act or occurrence.
(2)
If the employee shows good cause at any time, the council or the
Commission may permit the employee to refer the dispute after
the
relevant time limit in subsection (1) has expired.”
[5]
In Gianfranco Hairstylists v Howard & others
[1]
this court considered the wording of section 191(2) of the LRA
[2]
as follows:
“
As
a general principle, an application for condonation must be made as
soon as the employee becomes aware that condonation must
be sought.
This would usually be before the hearing of the conciliation
proceedings. In my view, the use of the words 'at any time'
was
intended to cater for, inter alia, the contingency that the need for
condonation is brought to the notice of the employee only
at the
conciliation….”
[5]
In Weltevrede Kwekery (Pty) Ltd v Commission for Conciliation,
Mediation & Arbitration & others2 this court per Pillay
J
considered a matter in point as follows:
[13]
I agree …….that s 191(2) allows an employee to apply
for condonation at any time…. ……..
[16]
The second prayer sought is the review and setting aside of the
condonation ruling. The commissioner calculated the period
of delay
to be two days, ie from 28 April to 30 April, and concluded that it
was negligible. He rejected the applicant's contention
that the
referral was 63 days late. The applicant's explanation for this
calculation, which was not offered to the commissioner,
is that the
delay must be calculated up to the time when the condonation
application was made. The contention, as I understand
it, is that a
late referral is no referral until it is accompanied by an
application for condonation.
[17]
In my opinion, such a construction is contrived. The standard
application for condonation form is worded thus under the heading:
'Degree of
lateness.
2.1
The referral is . . . . days late . . .
2.3
Applicant signed the referral form on. . . .'
The
commissioner's mind is directed to the degree of lateness of the
referral, not the condonation application. The referral and
the
condonation application are distinct documents and processes. The
timing of the application for condonation could be relevant.
However,
that must also be weighed against s 191(2) of the LRA permitting
condonation applications to be brought at any time.”
[6]
Given the above authority, I find that the arbitrator committed a
gross irregularity of the latent type when he calculated the
length
of the delay based on the date that the condonation application was
referred to the Council. As a resut of this he conducted
the enquiry
in the wrong way.
[7]
This review application was brought some 16 weeks late. Although this
is substantial, given the prospects of success in the
review, I
exercise my discretion to condone its late filing. In the
circumstances, I make the following order:
Order:
1.
Condonation is granted for the late filing of the review application.
2.
The ruling under case number P.S.E.S. 721314 WC is reviewed and set
aside.
3.
The application for condonation is remitted to the first respondent
for hearing before an arbitrator other than second respondent.
4.
There is no order as to costs.
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant:
ILUSO
Third
Respondent: Adv. S. Seria instructed by the State Attorney
[1]
(2000) 21 ILJ 361 (LC)
[2]
(2006) 27 ILJ 182 (LC)