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[2016] ZALCPE 6
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Mjakuca v South African Road Passenger Bargaining Council and Others (PR53/13) [2016] ZALCPE 6 (4 February 2016)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not Reportable
Case no: PR 53/13
In the matter between
MZINGISI MJAKUCA
Applicant
and
SOUTH AFRICAN ROAD
PASSENGER
BARGAINING
COUNCIL
First Respondent
COMMISSIONER LAMEESHA
ST CLAIR MARKS
Second Respondent
ALGOA BUS COMPANY
(PTY) LTD
Third Respondent
Heard:
29 April 2015
Delivered:
4 February 2016
Summary: When an
applicant for rescission has failed to give reasonable explanation
for his or her default, the arbitration ruling
refusing the
rescission application is not reviewable.
JUDGMENT
LALLIE,
J
Introduction
[1] This is an
application to review and set aside the arbitration award of the
second respondent (“the arbitrator”)
in which she
dismissed the application for rescission which had been launched by
the applicant at the first respondent (“the
bargaining
council”). It was filed late and the applicant applied for
condonation for the delay. Both applications are opposed
by the third
respondent.
Factual background
[2] The applicant was an
employee of the third respondent from 9 February 2010 until his
dismissal for misconduct on 5 November
2012. As he was a member of
TAWU (“the trade union”), the trade union referred an
unfair dismissal dispute to the bargaining
council on his behalf. The
dispute was not resolved at conciliation and it was scheduled for
arbitration on 7 February 2013. The
case was not arbitrated on the
scheduled date but dismissed owing to the applicant’s
non-attendance. The applicant filed
an application for the rescission
of the dismissal ruling. The application was opposed by the third
respondent. On 25 March 2013,
the arbitrator issued a ruling
dismissing the applicant’s rescission application. In the
application at hand, the applicant
seeks an order reviewing and
setting aside the arbitration award dismissing his rescission
application.
Condonation
[3] The applicant filed
the review application late. The extent of the delay is about five
weeks. The reason the applicant furnished
for the delay is that he
was informed by his union representative, Mr Tiso (Tiso) to wait for
the arbitrator to furnish them with
the rescission ruling. He trusted
Tiso and waited for his call. As the applicant was unemployed, he
lacked funds to make enquiries
about the progress of his case. After
two unsuccessful attempts to contact Tiso, he managed to get hold of
him on 18 April 2013.
He informed him that the outcome of his
rescission application was available at the union office. The
applicant collected the rescission
ruling the following day from the
union office where he was told that the union would not be able to
assist him further. He was
eventually advised to approach the Legal
Aid office for assistance. His first consultation was on 5 June 2013.
His application
was successful and on 2 July 2013, he attended a
consultation with the attorney to whom his case was allocated. She
filed the review
application on 4 July 2013. The applicant submitted
that the matter is important to him as he was a first offender when
he was
dismissed after serving the third respondent for two years. He
is still unemployed and unable to survive financially. He submitted
that he suffers prejudice as he is unemployed and maintained that the
third respondent will suffer no prejudice should condonation
be
granted. The applicant submitted that he has good prospects of
success on review because the arbitrator committed gross
irregularities.
Her finding that no grounds for rescission existed is
not supported by evidence. She failed to apply her mind to all the
evidence
before her and irrationally and unreasonably concluded that
the applicant failed to present grounds to have the dismissal ruling
rescinded.
[4] The third respondent
opposed the condonation application mainly on the basis that the
applicant’s submissions in respect
of Tiso’s role
constituted hearsay evidence in the absence of his confirmatory
affidavit. The applicant filed Tiso’s
confirmatory affidavit.
The third respondent submitted that the extent of the delay was
almost double the statutory limit and the
applicant failed to explain
the entire delay. He was not entitled to sit back and wait for the
outcome of his application for assistance
by the Legal Aid office. He
further failed to plead facts from which it could be inferred that he
had reasonable prospects of success
in the application to have the
rescission ruling reviewed and set aside.
[5] In
SA
Post Office Ltd v CCMA and Others,
[1]
the court confirmed that in exercising the discretion whether to
condone the late filing of pleadings, factors that need to be
considered include the degree of the delay, its explanation,
prospects of success of the party seeking condonation, prejudice that
the parties will suffer if condonation is granted or refused and
whether it is in the interests of justice to grant condonation.
[6] The reasons proffered
by the applicant for filing the review application late are mainly
that he was failed by his trade union
and sought alternative
assistance by applying for legal aid. His application was not
determined immediately but he had to wait
for its outcome. The third
respondent’s argument that the applicant failed to account for
each and every day of the delay
is true, however, the applicant’s
intention and efforts to have the review application filed cannot be
denied. While there
is no special dispensation for litigants assisted
by the Legal Aid office, the reality that the Legal Aid office needs
internal
procedures in performing its duties cannot be overlooked.
Each case is determined on its merits. The third respondent’s
argument
that the applicant should not have waited for the outcome of
his application for legal aid but should have taken steps to pursue
his review application is untenable. Having been told that his
application was being processed by the legal aid office, there was
nothing that the applicant could have done in the interim other than
wait for the outcome of his application. He sought assistance
as he
could not pursue his review application on his own. He therefore did
not act unreasonably by waiting for the outcome of his
application.
The extent of the delay is substantial however, its explanation is
reasonable.
[7] The applicant will
suffer more prejudice than the third respondent should the
condonation application be refused because he
will be denied of the
opportunity of having his review application heard. While the third
respondent will suffer the prejudice
of not having the dispute
resolved expeditiously, it will suffer less prejudice than the
applicant. It is possible to compensate
the third respondent for the
prejudice by taking the delay into account in the event of an order
being made in favour of the applicant.
The applicant made averments
that he had reasonable prospects of success by stating that the
arbitrator committed a gross irregularity
in that her finding that no
grounds for rescission existed was not supported by evidence. If the
averments can be proved, the applicant’s
review application
could be successful. He therefore has reasonable prospects of
success. When all the relevant factors are considered
collectively,
they prove that the applicant has shown good cause to have the delay
condoned. The application for condonation must
therefore succeed.
The review application
[8] An
arbitration award may be reviewed and set aside if the decision of
the arbitrator is one which a reasonable decision-maker
could not
make on the facts before the arbitrator. In this regard, see
Herholdt
v Nedbank Ltd
[2]
.
The applicant seeks an order reviewing and setting aside the
arbitrator’s ruling dismissing his rescission application.
He
submitted that the decision dismissing his matter for his failure to
attend the arbitration hearing was erroneously made because
he was
present at the arbitration venue when his matter was dismissed. He
conceded that the arbitration hearing was scheduled for
09h00 on 7
February 2013. He however, submitted that on 6 February 2013, he was
phoned by Sabata of TAWU who told him to present
his case at the
bargaining council’s offices on 7 February 2013 at 09h15. He
arrived at 09h05 and went to the hearing room
where the conciliation
of his dispute with the third respondent was held. When he realised
that he was at the wrong venue he made
enquiries from a cleaner who
referred him to the reception area. On his way to the reception area
at 09h18, he met the third respondent’s
representative who told
him that his case had been dismissed because he was three minutes
late. In the dismissal ruling, the commissioner
recorded that he
dismissed the applicant’s case after the 15 minutes’
grace period had expired. The third respondent
submitted that the
applicant arrived at about 09h20.
[9]
The applicant argued that the arbitrator failed to apply the correct
test for rescission which requires the applicant to give
a reasonable
explanation for his default and that he has a
bona
fide
defence. He also sought to rely on
Shoprite
Checkers (Pty) Ltd v CCMA and Others
[3]
where the court accepted that failure by a representative of an
employee to record the arbitration date correctly in his diary
constituted good reason for failure to attend the arbitration. The
third respondent submitted that the applicant failed to establish
grounds to have the rescission ruling reviewed and set aside because
he gave no reasons for being told that the arbitration was
scheduled
to commence at 09h15 instead of 09h00. Sabata, who told the applicant
that the arbitration would commence at 09h15 failed
to file an
affidavit giving reasons for misinforming the applicant. The
applicant explained in the replying affidavit that he could
not
locate Mr Madolo who I assume is the person he has referred to as
Sabata in his founding affidavit, as he does not work at
the Port
Elizabeth offices. He is also unable to reach him through the
telephone. Sabata Madolo was a representative of TAWU, a
trade union
the applicant was a member of and his representative of choice. He
may therefore not use TAWU’s failure to give
him reasons for
misinforming him about the commencement time of the arbitration as a
defence.
[10] The applicant’s
explanation for his default is one of the factors which the
arbitrator had to consider in determining
his rescission application.
His submissions do not disclose a clear reason why his trade union
gave him the incorrect arbitration
commencement time. On the
information before the arbitrator the applicant failed to give
reasonable explanation for his default.
Even in the
Shoprite
case
the applicant seeks to rely on, the default is explained. It is the
failure of the representative to diarize the arbitration
date
correctly. In the absence of the reason why the applicant was told
that the arbitration was scheduled to commence at 09h15
instead of
09h00 the arbitrator correctly and reasonably found that the
applicant did not advance a reasonable explanation for
the rescission
of the dismissal ruling as required in section 144 of the Labour
relations act 66 of 1995. In the circumstances,
the applicant failed
to establish grounds to have the rescission ruling reviewed and set
aside. His application can therefore not
succeed.
[11] In the premises, the
following order is made:
11.1
The late filing of the review application is condoned.
11.2
The application for review is dismissed.
_____________________
Lallie, J
Judge
of the Labour Court of South Africa
APPEARANCES
:
For
the Applicant: Ms Van Staden of the Justice Centre
For
the Third Respondent: Advocate Grogan
Instructed
by Joubert Galpin Searle
[1]
[2012] 1 BLLR 30 (LAC).
[2]
[2013]
11 BLLR1074 (SCA)
[3]
[2007]
10 BLLR 917
(LAC)