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[2016] ZALCJHB 30
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SAMWU obo Gorati v SALGBC and Others (JR1173/13) [2016] ZALCJHB 30 (3 February 2016)
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR 1173/13
Not
Reportable
In the
matter between:
SAMWU
obo T P GORATI
Applicant
and
SALGBC
First
Respondent
AS
NTAKOB N.O
Second
Respondent
FEZILE
DABI DISTRICT
MUNICIPALITY
Third Respondent
Heard:
18 November 2015
Delivered:
03 February 2016
Summary:
Application for condonation for late filing of a review
application.
JUDGMENT
MOLAHLEHI,
J
Introduction
[1]
This
is an application to review and set aside the arbitration award
of the second respondent (the arbitrator) under case
number FSD
091212 dated 20 December 2012, in terms of which the
dismissal of the individual applicant, Mr Gorati (the
applicant) was
found to have been both procedurally and substantively fair.
[2]
The
applicant has also applied for condonation for both the late filing
of the review application and the replying affidavit. Both
the review
and the condonation applications are opposed by third respondent.
Background
facts
[3]
The
applicant who was prior to his dismissal by the third respondent
employed as the LED officer was charged and dismissed because
of the
email he had sent to his manager, Ms Moloi. The charges against him
reads as follows:
‘
First
Count
3.3.1
It is alleged that the employee committed misconduct by sending an
e-mail correspondence to his Director
Me V Moloi on Tuesday the 05
June 2012 using insolent, provocative, intimidatory and aggressive
contents against her and distributed
the e-mail to the rest of the
personnel.
Second
Count
3.3.2
The employee committed misconduct by being aggressive
intimidatory by intimidating the Secretary of the Director,
Me L
Mehlape in person in her office in the Municipal Building on Friday
the 29 June 2012.’
[4]
The
email in question as quoted in the transcript of the arbitration
proceedings reads as follows:
“
Victoria,
your resent attitude towards me is so annoying to say the least. The
manner that you have been treating me over the last
month is uncalled
for and must stop with immediate effect. The way you have treated me
at the LED & Tourism Summit in Kroonstad
and at yesterday's
departmental meeting in front of my colleagues was the first and the
last. You don't have to hug and kiss me
whenever you see me but your
attitude and behaviour towards me leaves much to be desired. It is
well known fact in this organisation
about the impasse between us and
unfortunately I cannot help you because I do not know where it comes
from. You were at one point
discussing my private and personal life
with my ex-wife and I just want to say to you enough is enough! I am
so fed up with this
Victoria/Thami issue and something must be done
before something drastic happens. I am a human being with feelings
and emotions
like everybody else in this department and I will never
allow you to harass me emotionally like you have done in recent
weeks.
You either tell you what you want from me or recommend that I
be transferred to another department. So that you continue running
this department like it is your private company with majority
shareholding. You, are the worst manager I have ever worked under,
a
person who does not know how to differentiate between work and
personal issues. Please attend as many leadership and Management
courses as possible. Victoria I am so fed up with your attitude."
The
arbitration award
[5]
The
arbitrator noted that the employee did not deny having written the
email and thus the issue he had to determine was whether
the language
used therein constituted insolence or insubordination. He also noted
that the factors which would aggravate the misconduct
of this nature
would depend on the ‘extend of the abuse, its degree and
whether the words had been uttered in malice.’
[6]
On
the facts concerning the first charge the arbitrator found the
language used by the employee in the email to have been ‘abusive
and directed to a female and that constituted insolence.’ It
was for this reason that the employee was found to have contravened
a
rule of the workplace which was ‘valid as it restores order and
respect for superiors in the workplace.’
[7]
The
employee was not found guilty of the second offence because there was
no evidence to support the allegation regarding the same.
The
grounds for review
[8]
The
employee in this matter challenges the arbitration award on the
grounds that the arbitrator:
a.
Failed
to appreciate and or give effect to his powers and duties set out in
s138 of the Labour Relations Act (the LRA).
b.
Committed
gross irregularity and exceeded his powers in the manner he conducted
the arbitration proceedings.
c.
Failed
to reach a justifiable decision and that the decision is one which no
reasonable decision maker could have reached.
d.
Failed
to take into consideration in arriving at his decision that the
employee had filed a grievance which was ignored by the third
respondent.
e.
Failed
to take into account that the third respondent had failed to comply
with its grievance procedure.
f.
Failed
to take into account the conspiracy to have him dismissed.
g.
Misdirected
himself in the assessment of the evidence
The
condonation application.
[9]
The
condonation application is set out in the founding affidavit in the
following terms:
“
8.1
Mr Gorati was represented in the arbitration by Mr Mahlati of SAMWU
in Sasolburg
8.2
After
the Second Respondent made the award, the first Respondent forwarded
it to Regional Office of SAMWU Local Office in Fezile
Dabi
Municipality apparently during January 2013.
8.3
There
was a strike in relation to demarcation in Metsimaholo Local
Municipality towards the end of January and the beginning of
Febuary
2013. All municipal offices were closed during that period. Another
strike for the removal of the mayor took place in February
2013 which
affected the receipt of the Arbitration Award.
8.4
The
Applicant received the award on 20 March 2013, after the Applicant
contacted the First Respondent to enquire about the award.
On 22
March 2013, the first award was forwarded to Malatji Attorneys to
prepare a review application. Mr Malatji advised the Applicant
that
he will prepare the application in 10 April 2013, Mr Malatji advised
Mr Gorati that he will only file the Application once
his fees have
been fully paid. He wanted R10 000.00. Mr Gorati could not secure the
funds as he is not employed, at the same time
the union could not
assist him because there was a problem with his membership. On 22 May
2013 the membership was resolved and
Maenetja Attorneys prepared the
application and it was launched on 4 June 2013.
8.5
If
one has regard to an assumption that the award was provided to Mr
Gorati in March 2013, this application is in that event approximately
2 months late. I submit that 2 months is pardonable given the reasons
of the delay.”
[10]
In
relation to prospects of success the employee states that he has good
prospects of success because; ‘… the Commissioner
failed
to consider grievance lodged by the Employee and the evidence of 1
st
witness of the employee about conspiracy to dismiss him.’
[11]
As concerning prejudice the employee contends that no party would
suffer any prejudice if condonation was to be granted. According
to
him he would suffer prejudice if condonation was to be refused
because he would not have the opportunity to be heard and would
lose
the opportunity for either being reinstated or re-employed.
Evaluation/Analysis
[12]
It
is trite that in an application for condonation the applicant seeks
an indulgence from the court to extend the time frame provided
for in
the rules or legislation. In considering such an application the
court has a discretion to exercise which it does by weighing
whether
it is the interest of justice to grant or refuse the condonation.
[1]
[13]
In
weighing whether it is in the interest of justice to grant or refuse
condonation the factors which the court will take into consideration
are; the degree of the delay, the explanation, the prospects success
and prejudice. These factors, as has been repeatedly stated
in case
law, are not individually decisive.
[14]
The
two factors that however carries considerable weight are, the
reasonableness of the explanation and prospects of success.
[2]
In
order to succeed the applicant is required to give a full explanation
as to how the delay occurred and that must cover the full
period of
the delay.
[3]
This
requirement is based on the principle that condonation is not there
for the mere asking.
[4]
[15]
In
NUM
v Council for Mineral Technology
,
[5]
held
that:
‘‘
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.”
[16]
In
Moiloa
v Shai
,
[6]
the
court in line with the above principle held that:
“
.
. . in case such as this one, it is not necessary to consider the
prospects of success and that condonation could be refused no
matter
how strong the prospects of success are . . .”
[17]
The
explanation proffered by the applicant in the present matter is in my
view unsatisfactory for a number of reasons. The first
relates to the
alleged financial affordability. In this regard the applicant states
in his founding affidavit that the delay was
due to the fact that he
did not have funds to pay his attorney.
[18]
The
issue of whether financial affordability can serve as an
acceptable explanation for the delay received attention in
Gaoshubelwe
and Others v Pie Man's Pantry (Pty) Limited
,
[7]
where
the court in dealing with the issue had the following to say:
“
In
my view there is no rule that the explanation that the delay was
occasioned by lack of funds should automatically lead to the
dismissal of the application for condonation. If this was to be the
case then in my view the Court would be ignorant of the economic
reality that in most instances faces unrepresented dismissed
employees. I do however agree that as a general approach that lack
of
funds should not on its own constitute reasonable explanation. In
this particular instance it seems to me that it cannot be
disputed
that the applicant had based their hopes of access to justice on the
union which apparently deserted them without any
notice. Faced with
this and in the context where free legal assistance is not readily
accessible, it cannot be said that the period
of three months is
unreasonable regard being had to the fact that the applicant had to
contact the affected employees to seek the
mandate to include them in
the claim, including having to ask them to put forward a contribution
for the legal fees."
[19]
In
Antoinette
Du Plessis v Wits Health Consortium (Pty) Ltd
unreported case JS 122/2011, the court held:
‘
It
is clear from the above and other judgments that a claim of lack of
funds on its own cannot constitute reasonable explanation
for the
delay. In other words, when pleading lack of funds as the cause of
the delay, the applicant needs to provide more than
a mere claim that
the reason for the delay is lack of funds. In this respect, the
applicant has to take the court into his or her
confidence in seeking
its indulgence by explaining “when” not only that he or
she finally raised funds to conduct the
case but also how and when
did he or she raise those funds. The “when” aspects of
the explanation is important as it
provided the courts with the
information as to whether there was any further delay after raising
the funds and whether an explanation
has been provided for such a
delay.’
[20]
The
above was quoted with approval by Tlhotlhalemaje AJ, as he then was,
in Anver Cassem v BASF South Africa (Pty) Ltd unreported
case JS
1176/13. In that case the Learned Judge had the following to say:
[13]
It cannot be doubted that this Court is not insensitive to the harsh
realities of indigence that
ordinarily follow upon a loss of a job.
Most hard hit by the consequences of a loss of a job are low income
earning former employees.
However, when a lack of funds is given as a
reason for a failure to comply with time frames, the Court as
correctly pointed out
by Molahlehi J in Antoinette Du Plessis
requires more than mere averments that indeed the state of one's
destitution prevented
him or her from approaching the Court timeously
with a claim. In view of the discretion it enjoys, the Court, in the
light of these
realities would not be averse to granting an
indulgence on those grounds, depending obviously on the circumstances
of each case.
[14]
On the whole however, it is my view that on its own, the excuse
surrounding a lack of funds for
a failure to timeously institute a
claim is not sufficient for an indulgence to be granted.”
[21]
In
the present case the counsel for the applicant conceded that there is
no indication as to what steps the applicant took to secure
financial
assistance. He also conceded that the applicant’s papers do not
provide the details as to what the nature of the
problem related to
his membership of the union was and what relationship that had with
the filing of the review application on
time. It is also not clear in
what way the strikes at the municipality contributed to the delay in
the filing of the review application.
There is also a period of
twenty days which the applicant has failed to explain.
[22]
Turning
to the prospects of success, I find that they also do not assist the
case of the applicant. The applicant did not
dispute that the
email was disrespectful and that it was not send at the spare of a
moment due to provocation. The email was sent
two years after the
provocation which he alleges was the cause of him sending it which
means he had all the time to consider his
cause of action in dealing
with his complaint.
[23]
The
complaint that he had filed two grievances which never received
attention by the third respondent also does not assist him
particularly when regard is had to the fact that he was a person
employed in managerial position. He provided no explanation as
to why
he did not check with management as to when his grievances would be
considered. It should be noted that the previous time
the grievance
hearing was postponed due to the fact that he was sick.
[24]
Having
regard to the totality of the material that served before the
arbitrator it is apparent that the clean disciplinary record
which
the applicant had was outweighed by seriousness of his conduct. He
also showed no remorse after the commission of the offence.
His claim
that he did approach Ms Moloi to apologise does not assist his case
because that evidence was introduced during cross
examination. It was
not denied that that version was never put to Ms Moloi at the time
she testified to afford her the opportunity
to respond thereto.
[25]
In
addition to the above I am of the view that granting condonation
would not be in the interest of justice and that the third respondent
would suffer prejudice due to the delay in bringing finality to this
matter.
[26]
In
my view the period of three and half months’ delay is excessive
particularly when regard is had to the explanation proffered
by the
applicant which on proper evaluation is not plausible. It follows
therefore that the applicant has failed to put before
this court a
convincing case for the condonation for the late filing of his review
application. Accordingly the application stands
to fail.
[27]
Turning
to the issue of costs, I do not belief that it would be appropriate
to allow costs to follow the results.
Order
[28]
In
the premises the applicants’ application to review and set
aside the arbitration award made by the second respondent under
case
number FSD 091212 dated 20 December 2012, is dismissed with no order
as to costs.
___________________
E.M
Molahlehi
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant:
Adv. JL Basson
Instructed
by:
Maenetja Attorneys.
For the
Respondent:
Adv. MC Louw
Instructed:
Peyer Attorneys
[1]
See
Grootboom
v National Prosecuting Authority & another
(2014) 35 ILJ 212 (CC).
[2]
See
eThekwini
Municipality and Ingonyama Trust
(2013) 5 BLLR 497 (CC).
[3]
See
Van
Wyk v Unitas Hospital and another (Open Democratic Advice Centre as
Amicus Curiae)
2008 (4) BCLR 442 (CC).
[4]
See
NUMSA and Another v Hillside Aluminium
[2005] ZALC 25
;
(2005) 6 BLLR 601
(LC) and
High
Tech Transformers v (Pty) Ltd v Lombard
(2012) 33 ILJ 919 (LC).
[5]
(1998)
3 BLLR 209
(LAC) at 211 G-H.
[6]
(2007)
28
ILJ
1028 (LAC).
[7]
(2009)
30
ILJ
347
(LC) (22 July 2008)