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[2016] ZALCJHB 2
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SAMWU obo Members v Piotrans (Pty) and Others (JR1095/15) [2016] ZALCJHB 2 (6 January 2016)
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR
1095/15
Not Reportable
In the matter between:
SAMWU OBO 157
MEMBERS
Applicant
and
PIOTRANS (PTY)
LTD
First Respondent
C BRUMMER
N.O.
Second Respondent
SOUTH AFRICAN ROAD PASSENGER
BARGAINING COUNCIL
Third
Respondent
Heard:
08 December 2015
Delivered: 06
January 2016
Summary: Review of a
condonation ruling. Application considered on papers in terms of rule
33.10 of the Rules of the
Bargaining Council. Found that
failure in the circumstances of the case was irregular.
JUDGMENT
MOLAHLEHI, J
Introduction
[1]
This
is an application in terms of which the applicants seek to review and
set aside the ruling of the second respondent (the Commissioner)
made
under case number RPNT 2716, 2684 and 2685 dated 26 May 2015, in
terms of which their condonation application for the late
referral of
their alleged unfair dismissal dispute was dismissed.
Background facts
[2]
The
individual applicants are all drivers who prior to their dismissal
were employed to drive the Rea Vaya buses in the City of
Johannesburg.
[3]
It
is common cause that the 157 individual applicants embarked on an
unprotected strike action at the beginning of 2015. The strike
action
took the form of the applicants abandoning their buses on 2 February
2015 resulting in a traffic gridlock.
[4]
In
an effort to have the applicants abandon their action the first
respondent sought the intervention of their union, SAMWU to assist
in
having the applicants to resume rendering their services. The
individual applicants were also according to the first respondent
sent short text messages (sms) notifying them of the need to resume
their duties with the warnings that failure to do so could
lead to
disciplinary action being taken against them.
[5]
The
applicants were subsequently charged with misconduct relating to the
incident of 2 February 2015. The charge included;
(a)
Failure
and refusal to drive their respective buses,
(b)
Refusal
to park the buses in the prescribed areas,
(c)
Sabotage
of the services of the third respondent,
(d)
Leaving
the buses unattended and in an unauthorised area,
(e)
Disruption
of the first respondent’s operations
(f)
And
failure to act in the interest of the first respondent.
[6]
It
is apparent that few of the employees attended the disciplinary
hearing and the hearing of the rest of over 150 of them proceeded
in
their absence.
[7]
The
recommendation from the independent chairperson who conducted the
disciplinary hearing was that the applicants should be dismissed,
which recommendation the first respondent implemented. The applicants
were informed on 14 February 2015 that they were dismissed.
[8]
The
applicants being aggrieved by their dismissal referred a dispute
concerning the alleged unfair dismissal dispute to the CCMA.
[9]
It
is common cause that the applicants’ referral was defective on
several grounds but more importantly because the person
who signed
the referral did not have the authority to do so. The applicants
conceded that the referral was defective and accordingly
withdrew it
on 29 April 2015.
[10]
It
is also common cause that immediately thereafter and on the same day
of the withdrawal of the dispute the applicants referred
the dispute
again accompanied by a condonation application.
[11]
The
first respondent opposed the application by filing its answering
affidavit on 15 May 2015. It is common cause that the applicants
filed their replying affidavit to the first respondent’s answer
late.
[12]
The
Commissioner considered the condonation applicant on the basis of the
founding and answering affidavits. The Commissioner issued
his ruling
dismissing the condonation application on 26 May 2015 which was about
3 days before the applicant filed their replying
affidavits; namely
29 May 2015.
The grounds of review
[13]
As
indicated earlier the Commissioner considered the condonation
application on the papers without inviting the parties to make
oral
submissions. The applicants contend that this constitutes an
irregularity on the part of the Commissioner. According to them
the
Commissioner should have offered the parties the opportunity to make
oral submissions. The applicants further argues that the
Commissioner
considered the application only on papers before him when such
procedure is not provided for in the bargaining council’s
Dispute Resolution Procedures.
[14]
The
other ground upon which the applicants rely on is that the
Commissioner did not consider its replying affidavit in determining
the condonation application. In this respect the applicants contend
that the Commissioner did not consider the point made that
the
applicants did not receive the notices of the disciplinary hearing.
[15]
It
is further argued by the applicants that had the Commissioner
considered the replying affidavit, he would have noted that prospects
of success were good.
[16]
Mr
Maimane, for the applicants, in his submission regarding the
prospects of success emphasised the fact that the applicants were
not
given proper notice regarding the disciplinary hearing. His emphasis
was on the alleged procedural unfairness of the dismissal.
He
further argued that in not setting the matter down for oral argument
the arbitrator committed an irregularity.
The ruling
[17]
The
arbitrator indicates firstly in his ruling that the matter was
decided on the papers submitted by the parties. This is both
the
founding and answering affidavit, because at the time the bargaining
council had not yet received the applicants’ replying
affidavit.
[18]
As
concerning the degree of lateness the arbitrator found that the delay
was excessive for two reasons: firstly that the applicants
did not
state the degree of lateness correctly and secondly the lack of
proper service by the applicants.
[19]
In
relation to the issue of prejudice the arbitrator found that the
party that would be prejudiced more than the other was the first
respondent if the matter was to proceed to arbitration. It
appears that his finding is based on the following; the reasoning
that the applicants did not avail themselves to the internal
remedies, the negative impact that their conduct had on the
commuters,
the financial and reputational loss that the third
respondent has suffered as a result.
[20]
In
dealing with the prospects of success the arbitrator found the
versions of the parties to be mutually destructive. He then proceeded
to resolve the conflicting versions on the basis of what was said in
First
National Bank v Leeuw,
[1]
where
the Court quoted with approval what was said by the Appellate
Division in
National
Employers Mutual General Insurance Association v Gany
[2]
where
it was held that:
‘
Where
there are two stories mutually destructive, before the onus is
discharged, the Court must be satisfied that the story of the
litigant upon whom the onus rests is true and the other false. It is
not enough to say that the story told by Clark is not satisfactory
in
every respect, It must be clear to the Court of first instance that
the version of the litigant upon which the onus rests is
the true
version, and that case absolute reliance can be placed upon the story
as told by A Gany’.
[21]
In
applying the principles in Gany’s above the Commissioner made
the following finding:
‘
5.3
It is not denied that the applicants’ received notification to
attend the respective hearings; the Applicants averred
that they
received one days’ notice whereas the Respondent submitted that
48 hours’ was given. Nothing prevented the
Applicants from
appearing at the hearings and requesting a postponement due to their
perceived belief that the time period was
too short to prepare a
proper response.
4.5
I find the Respondent’s submissions in relation to the
attempted processes to secure presence of the Applicants at the
respecting hearings more probable and that the absence of the
majority of the Applicants at the hearings was of their own making
and at their peril’.
Legal Principles
[22]
It
is trite that the
test
to apply in determining whether to grant or refuse condonation for
non-compliance with the time frames is the interest of justice
which
is determined by having regard to the following factors: (a)
the degree of lateness or the extend of non-compliance
with the
prescribed time frame, (b) the explanation for the lateness or the
failure to comply with time frames, (c) prospects
of success or
bona
fide
defence in the main case; (d) the importance of the case, (e) the
respondent’s interest in the finality of the judgment,
(f) the
convenience of the court; and (g) avoidance of unnecessary delay in
the administration of justice.
[23]
It
has been repeatedly stated that as a general rule these factors are
not to be determined in isolation of each other but collectively.
The
exception to this rule is stated by Zondo J in Grootboom
[3]
in
the following terms:
“
However,
some of the factors may justifiably be left out of consideration in
certain circumstances. For example, where the delay
is unacceptably
excessive and there is no explanation for the delay, there may be no
need to consider the prospects of success.
If the period of delay is
short and there is an unsatisfactory explanation but there are
reasonable prospects of success, condonation
should be granted.
However, despite the presence of reasonable prospects of success,
condonation may be refused where the delay
is excessive, the
explanation is non-existent and granting condonation would prejudice
the other party. As a general proposition
the various factors are not
individually decisive but should all be taken into account to arrive
at a conclusion as to what is
in the interests of justice.”
Evaluation
[24]
The
test to apply in applications of this nature is that of a reasonable
decision maker as set out by the Constitutional Court in
Sidumo.
[4]
The
test entails, the review court having to enquire into whether the
conclusion reached by the Commissioner is one which a reasonable
decision maker could not reach. It has also been accepted that the
provisions of s 145 of the Labour Relations Act are suffused
in this
test.
[25]
The
key complaint of the applicants in this matter is that they were not
afforded a hearing in as far as their application for condonation
is
concerned. It is common cause, as indicated earlier, that the matter
was considered on papers without scheduling for oral hearing.
[26]
In
defending the ruling the first respondent contends that the
Commissioner had the power to do that in terms of the rules of the
bargaining council.
[27]
The
scheduling of hearing in an application in the bargaining council is
governed by rule 33.9 of the Rules of the bargaining
council which
reads as follows:
33.9
(a) The
Council must allocate a date for the hearing of the application
once
a replying affidavit is delivered, or once the time limit for
delivering a replying affidavit has lapsed, whichever occurs
first.
(b)
The Council must notify the
parties of the date, time and place of the hearing of the
application.
(c)
Applications must be heard on a motion roll.
[28]
The
exception to the above rule is in rule 33.10 of the Rules of the
bargaining council which reads as follows:
33.10
Despite this rule, the Commissioner may determine an application in
any manner it deems fit and, in particular, may have
applications
determined on the papers as delivered with hearing and agreement.
[29]
The
wording of the above rule is exactly the same as that of CCMA rule
31(9). The same applies in relation to rule 33.10 of the
bargaining
council except that in that exception the rule emphasises the power
to determine the hearing on the basis of the papers
filed with
bargaining council. The first respondent’s case as I understand
it is that the Commissioner in terms of the rule
has unfettered
discretion to determine an application on papers without having it
set down for an oral hearing.
[30]
I
do not agree with what seems to be the suggested interpretation of
clause 33.10 of the rules of the bargaining council by the
first
respondent. In fact the proper interpretation of the rule is that the
Commissioner was supposed to have obtained the agreement
of the
parties if the matter was to be decided on paper. This was not done
and therefore the Commissioner adopted an irregular
approach in
considering the condonation application only on papers submitted.
[31]
In
my view taking into account the proper interpretation of clause 33.10
and what was said
in
Kungwini Residential Estate & Adventure Sports Centre Ltd v
Mhlong NO & Others
,
[5]
the
approach adopted by the Commissioner in this matter was irregular. In
that case in dealing with failure to give notice of set
down,
McCall AJA had the following to say:
“
However,
I do not think that this provision can possibly be relied upon to
dispense with the giving of notice to the parties, or
at least to the
applicant if the respondent is in default, of the commissioner’s
intention to hear a matter. For a commissioner
to hear and determine
an application for condonation without notice to the parties would be
to ignore the
audi
alterem partem
rule. There is no indication in the papers that any such notice was
given to either the third respondent, who had applied for
condonation, or the appellant. Although it may be argued that it was
not necessary to give notice to the appellant, since, although
it was
a party as contemplated by Rule 31, it had not given notice of
intention to oppose the application (leaving aside Annexure
“
A
”),
the same cannot be said about notice to the third respondent. Had
notice of the intention to hear the condonation application
been
given to the third respondent’s legal representative, Hawyes,
he would surely have had an obligation to call Annexure
“A”
to the attention of the CCMA or at least to advise the appellant’s
attorneys of the set down of the application.
Had that occurred it is
unlikely that the CONDONATION RULING would have been made in the
absence of both parties and the huge wastage
of time and effort which
has occurred in this matter would have been avoided.’
[32]
In my view had the
third respondent set the matter down for a hearing the possibility
exist that the applicants may have come forward
and indicated that
they were preparing the replying affidavit. This is so when regard is
had to the fact that the applicants submitted
the replying affidavit
three days late. In this circumstances the Commissioner may
possibility have directed the applicants to
file condonation for the
late filing of their replying affidavit.
[33]
It is also possible
that had the bargaining council sought the agreement of the parties
to have the matter considered on papers
to be placed before the
Commissioner, the applicants may have indicated that they were in a
process of preparing their replying
affidavit or request an
opportunity to do so in which case they may have been advised, as a
matter practice, to ensure that the
replying affidavit is accompanied
by a condonation application.
[34]
The same applies once the
matter was placed before the Commissioner for consideration. In the
circumstances of this matter the Commissioner
faced with the absence
of a replying affidavit and a dispute of facts on the papers before
him ought to have directed that the
matter be set down for oral
submission.
[35]
It is apparent from the
papers that the parties had representatives who assisted them in the
condonation application. It therefore
means that the other approach
that the Commissioner could have adopted was to direct that the
parties should make written submissions
which in my view would have
satisfied the
audi
rule. Again in all probabilities, had the Commissioner adopted this
approach, the applicants may have indicated their wish to file
a
replying affidavit.
[36]
In
light of the above I find the ruling of the Commissioner, in refusing
the applicants condonation for the late referral of their
dispute, to
be reviewable. However, whilst noting the need for speedy resolution
of the dispute between the parties, I find that
in the circumstances
of this case the appropriate approach to adopt is to remit the matter
to third respondent for consideration
afresh.
[37]
In
as far as costs are concerned I do not belief that it would
appropriate to allow costs to follow the results.
Order
[38]
In
the circumstances I make the following order:
1.
The
ruling made by the second respondent case number RPNT 2716,
2684 and 2685 dated 26 May 2015, is reviewed and set
aside.
2.
The
matter remitted to the third respondent for consideration by a
Commissioner other than the second respondent.
3.
There
is no order as to costs.
________________
E, Molahlehi
Judge of the Labour
Court of South Africa
Appearances:
For the Applicant:
Adv. F R Memani
Instructed by:
Nemavhula
For the
Respondent: F Malan of
Edward Nathan Sonnenberg Inc.
[1]
(2007)
ZAFSHC 31
(29 March 2007).
[2]
1931
AD 1999
at 199.
[3]
Grootboom
v National Prosecuting Authority and Another
(CCT 08/13)
[2013] ZACC 37
;
2014 (2) SA 68
(CC);
2014 (1) BCLR 65
(CC);
[2014] 1 BLLR 1
(CC
[4]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC).
[5]
[2006]
5 BLLR 423
(LAC).