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[2016] ZALCCT 7
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Du Plessis v Wilson NO and Others (C169/2015) [2016] ZALCCT 7 (17 February 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
Reportable
Case
Number: C169/2015
In
the matter between:
CLEMENT
ROLAND DU PLESSIS
Applicant
And
D.I.K.
WILSON
N.O.
First Respondent
THE
COMMISION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Second Respondent
CAPE
PENINSULA UNIVERSITY OF TECHNOLOGY
Third Respondent
Date
heard: 22 October 2015
Delivered:
17 February 2016
JUDGMENT
RABKIN-NAICKER
J
[1]
The applicant seeks to review and set aside a condonation ruling by
the first respondent (the Commissioner). The Commissioner
dismissed
the application for condonation for the late referral of a dispute.
The referral of an alleged unfair dismissal dispute
to the CCMA was
69 days late. The third respondent opposes the review.
[2]
The applicant was a lecturer employed by the third respondent. He was
dismissed after being found guilty of sexual harassment.
The matter
came before Steenkamp J, under case no C817/2014 as a review
application. He decided a jurisdictional point in favour
of the third
respondent. The conclusion of his judgment was as follows:
“
[14]
Having regard to the context outlined above and to the provisions of
section 188A as they currently stand, I cannot agree with
the
applicant that the procedure leading to his dismissal was a
pre-dismissal arbitration as contemplated in section 188A of the
LRA.
It was, instead, a disciplinary enquiry chaired by an independent
external chair person. The respondents should perhaps have
made it
clearer to the applicant that that was the nature of the process,
despite the earlier guidelines contained in the disciplinary
code
envisaging a form of pre-dismissal arbitration. The fact remains,
though, that in law the process adopted did not conform
to the
provisions of section 188A.
[15]
With regards to costs, I take into account that the applicant may
justifiably have been confused by the nature of the proceedings.
I
accept that he was bona fide in bringing an application for review to
this court rather than referring an unfair dismissal dispute
to the
CCMA. For that reason, I do not consider a cost award to be
appropriate in law and fairness.
Order
The
application for review is dismissed for lack of jurisdiction.”
[3]
It was submitted on behalf of applicant that the above judgment makes
it clear that the applicant was justifiably confused about
the forum
in which he had to pursue his matter. This goes to the compelling
reason for the delay and it was argued by Mr Ackerman
for the
applicant, that this is where the Commissioner erred, by paying scant
attention to the court’s finding that it was
reasonable for
applicant to have made the mistake he did. It was argued that: “this
Court’s finding provides a compelling
reason for lateness and
should carry the day. The requirements for condonation must be
subordinate to the reasons for lateness.”
For this submission
regarding the paramountcy of the reasons for lateness, the applicant
relies on
Melane
v Santam Insurance Co
[1]
and specifically the following dictum:
“
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, for that would be a
piecemeal approach incompatible with a true discretion,
save of
course that if there are no prospects of success there would be no
point in granting condonation. Any attempt to formulate
a rule of
thumb would only serve to harden the arteries of what should be a
flexible discretion. What is needed is an objective
conspectus of all
the facts. Thus a slight delay and a good explanation may help to
compensate for prospects of success which are
not strong. Or the
importance of the issue and strong prospects of success may tend to
compensate for a long delay. And the respondent's
interest in
finality must not be overlooked.”
[4]
Try as I may, I can find no basis for the proposition that the
Melane
case establishes that ‘the other requirements for condonation
must be subordinate to the reasons for lateness.’ Indeed
it
appears to me that this
locus classicus
does just the
opposite, in warning against a piecemeal approach.
[5]
The Commissioner stated in his Ruling that:
“
37.
In this case, the degree of lateness is substantial, the explanation
for the delay is acceptable (given
that the Applicant should not be
prejudiced by the actions of his attorneys), but the prospects of
success are virtually non-existent
(on the averments made on behalf
of the Applicant). Prejudice is not a major factor. Applicant also
argued that the case is an
important one as it could have
far-reaching consequences for the process of mediation. I do not
accept that argument. It is not
disputed that mediation is a without
prejudice process, and any evidence relating to the mediation process
should not be taken
into account. This is in fact what occurred in
this instance.”
[6]
The above finding reflects that the Commissioner accepted that the
explanation for the delay was reasonable, but that applicant’s
application for condonation foundered on the issue of the prospects
of success. Applicant’s case before the Commissioner
in respect
of the prospects of success turned on the following: the independent
chairperson of the disciplinary had allowed the
respondent’s
legal officer, Adv. Sifumba (who had played the role of mediator
between the applicant and the female students
who had raised
complaints against him), to testify at the hearing. The record of the
disciplinary chairperson’s finding was
before the Commissioner
in the condonation proceedings. The following is stated in paragraph
37 of that finding, in dealing with
an objection raised by
applicant’s legal representative at the disciplinary hearing:
“…
.Mr
von Lieres raised an objection at the hearing to any evidence
relating to the content of the mediation being led on the basis
that
the mediation was conducted on a without prejudice basis. I agreed
with Mr von Lieres. However, the employer explained that
although
Advocate Sifumba was involved in the mediation, she was also involved
in the investigation of the complaints against Mr
du Plessis. I
accordingly allowed her to testify. However during her evidence
Advocate Sifumba did make several references to the
content of the
mediation. I have therefore not considered any of her testimony in
arriving at my decision. I have also been mindful
in not taking into
account any references to the content of the mediation by any of the
other witnesses.”
[7]
The applicant averred in his affidavit seeking condonation, that the
mere fact that Sifumba testified, whether or not it influenced
proceedings, was grossly irregular and unfair; that as the legal
officer of the respondent it was entirely improper for her to
act as
mediator; that the issue goes to the heart of a process that must not
only be fair but must also be seen to be fair; that
the process was
tainted from the start and a pattern of gross irregularity is evident
culminating in Sifumba being allowed to testify.
[8]
What needs to be emphasised at this point is that the above
submissions by applicant were heard by the Commissioner in a
condonation
application for the late referral of an unfair dismissal
dispute. In a review application these submissions may have had more
resonance,
but in the context of an unfair dismissal dispute their
ambit was limited to issues of procedural fairness of the dismissal.
In
this regard the Commissioner stated in his Ruling that:
“
33.
Turning to the prospects of success, the Applicant did not make any
averments regarding the substantive fairness or otherwise
of his
dismissal, but relied on an allegation of procedural (sic) fairness
based largely on the fact that the chairperson allowed
Ms Sifumba to
testify, in part, as to what occurred during the mediation. Applicant
claimed that even though the chairperson stated
in her findings that
she had not taken any of Ms Sifumba’s evidence into account,
the very fact that the evidence was led
irrevocably tainted the
process.
34.
This argument might well be valid in terms of court proceedings;
however it does not take account of the less formal nature
of
disciplinary proceedings, and for that matter arbitration
proceedings. In such processes it is common for a chairperson or
arbitrator to hear evidence that would be inadmissible in a court of
law, such as hearsay evidence, and to decide in his or her
findings
whether any weight can or should be attached to such evidence. An
experienced chairperson or arbitrator is fully capable
of putting any
evidence deemed to be unacceptable out of mind in reaching decision.
It was not disputed that Ms Singh-Boopchand
is an experienced
practitioner, and when she states in her findings that she has not
taken account of Ms Sifumba’s evidence
I am inclined to take
that at face value. There is no reference to what occurred in the
mediation process in her analysis of the
evidence, and she basis her
findings purely on the evidence of the complainants and other
witnesses, as well as the Applicant’s
own version. I am
therefore satisified that the Applicant has poor prospects of success
on the procedural grounds raised….”
[9]
Mr Ackerman submitted that the Commissioner’s finding that the
prospects of success were poor amounted to a misdirection
in that he
erred on the facts and the law. Reliance was placed on the matter of
Hendricks
v Cape Penininsula University off Technology & Others
[2]
in this regard. In that matter, the High Court was seized with
an application for the review and setting aside of disciplinary
proceedings which led to the dismissal of the applicant on charges of
sexual harassment. The applicant claimed that the university
had
breached the contract of employment between them, by failing to
properly comply with the provisions of its sexual harassment
policy
and disciplinary code when investigating and instituting formal
disciplinary proceedings against him. The applicant also
sought to
set aside the disciplinary proceedings on the ground that the
respondent's code unlawfully prohibited legal representation
in
disciplinary proceedings.
[3]
The
law as espoused in that judgment may have come to the assistance of
the applicant in a review and/or a dispute alleging breach
of
contract. But it certainly cannot be the basis to find that the
Commissioner’s ruling is susceptible to review.
[10]
The test on review is whether the Commissioner’s decision to
refuse condonation was one to which a reasonable Commissioner,
“upon
the body of evidence adduced, could not come.”
[4]
In my judgment the decision reached by the Commissioner in this
matter cannot be characterised as an unreasonable result. He applied
the test for condonation correctly and did not commit a gross
irregularity of the latent type.
[5]
In all the circumstances therefore this application cannot succeed. I
see no reason why costs should not follow the result.
Order
1.
The application is dismissed with costs.
________________
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances:
Applicant:
LW Ackermann instructed by Hein Von Lieres
Third
Respondent: Norton Rose
Fulbright South Africa
[1]
1962
(4) SA 531
(a) at page 532
[2]
(2009)
30 ILJ 1229 (C)
[3]
At
Paragraph 1
[4]
As
the test is eloquently described in DHL Supply Chain (Pty) Ltd v De
Beer NO & others (2014) 35 ILJ 2379 (LAC) at paragraph
2.
[5]
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) (2013)
34 ILJ 2795 (SCA) at paragraph 21