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[2017] ZALCJHB 93
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Foko v Commission for Conciliation, Mediation and Arbitration and Others (JR2250/16) [2017] ZALCJHB 93 (17 March 2017)
Not
reportable
THE LABOUR COURT OF
SOUTH AFRICA,
HELD AT JOHANNESBURG
C
ase
No: JR 2250-16
In
the matter between:
FOKO BEN PALISO
Applicant
and
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
First Respondent
SHAAM FRIEDMAN
N.O
Second Respondent
E R SIGNS &
SAFETY
Third Respondent
Heard
:
14 March 2017
Delivered
:
17 March 2017
Summary:
(Review – materially incomplete record –
grounds of review not properly pleaded – no application for
condonation)
INTERLOCUTORY
ORDER
LAGRANGE
J
Introduction
[1]
In this matter, the applicant has applied
to review and set aside an arbitration award in which his dismissal
for misconduct was
found to be fair.
[2]
The employer led three witnesses in the
arbitration proceedings and the applicant was the only witness in his
own defence.
[3]
The applicant contends that the
commissioner ignored relevant evidence and took account of irrelevant
evidence without specifying
what evidence he had in mind. He also
reiterated his denial that he refused to obey instructions or to sign
for acknowledgment
of work procedures and argues that he was never
issued with a warning for such misconduct in the past.
[4]
In his notice under Rule 7A (8), he stood
by this founding affidavit.
[5]
His founding affidavit is an insufficient
basis for establishing grounds of review as he never set out the
details of any evidence
which the arbitrator allegedly ignored or
those the arbitrator took account of but should have ignored as
irrelevant. If his application
was to be determined as it stands, it
should be dismissed.
[6]
However, it became apparent to the court
that the transcript of the arbitration is incomplete as the applicant
has failed to provide
a transcript of the evidence led by the
employer on the first day of the hearing on 8 April 2016. He should
have alerted the court
to this at the hearing of the matter as he
could hardly have been unaware that the transcript he provided
omitted the evidence
of the employer’s first two witnesses and
the evidence in chief of the employer’s third witness.
[7]
As things stand presently, the applicant
has not complied with paragraph 11.2.5 of the Labour Court Practice
Manual which requires
him to file the record within 60 days of it
being made available by the bargaining council, because he only filed
a partial record.
As such, his application is deemed withdrawn in
terms of paragraph 11.2.3 of the Practice Manual as he failed to
apply for an extension
of time to file the complete record.
[8]
More seriously, it only became apparent on
re-examining the file that the application was only served on the
third respondent on
21 October 2016, whereas the award was handed
down on 31 August 2016. In terms of
s 145
of the
Labour Relations
Act, 66 of 1995
, the court only has jurisdiction to hear a review
application if it is filed within six weeks of the date of it being
issued or
the applicant being made aware of it, whichever is the
later, unless the court condones the late filing of the application
on good
cause shown. The applicant did not apply for condonation and
unless and until condonation is granted, the court has no power to
consider the review application. On the face of it, the review
application should have been served and filed by 6 October 2016
and
accordingly was served about two weeks late.
[9]
There are also anomalies about when the
review application was filed with the court as the court file shows
it was only filed on
14 December 2014, which means the period of
delay in filing the application was even longer, namely two and a
half months’
late.
[10]
Nonetheless, because the applicant is a lay
person and the matter is unopposed thus far, the court is willing to
grant him an opportunity
to rectify the defects in his application
regarding the incomplete record and the absence of a condonation
application provided
he complies with the order below.
Order
[11]
The applicant must serve and file the
remainder of the transcript for the arbitration proceedings which
took place on 8 April 2016,
by 30 April 2017.
[12]
In the event no digital recording of that
day’s proceedings is available the applicant must, by 30 April
2017, request the
first respondent to convene a meeting attended by
all the parties to attempt to reconstruct the record before the end
of May 2017
and must file any reconstructed portion of the record by
15 June 2017.
[13]
In the event the applicant fails to file
the missing portion of the transcript by 30 April 2017 or the
reconstructed portion
of the record by 15 June 2017, he must, by 17
June 2017, request further directions and, or alternatively an
extension of time
from the Labour Court to file the reconstructed
record.
[14]
The applicant may file a supplementary
affidavit in support of his review application within 10 court days
of filing the remainder
of the record or reconstructed portion of the
record.
[15]
In any event, the applicant must serve and
file a condonation application for the late filing of his review
application by 21 April
2017, if he intends to pursue his review
application further.
_______________________
Lagrange J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
In
person
THIRD
RESPONDENT:
No
appearance.