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[2017] ZALCJHB 101
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Mabe v Commission for Conciliation, Mediation and Arbitration and Others (JR1471/15) [2017] ZALCJHB 101 (29 March 2017)
Not
Reportable
THE LABOUR COURT OF
SOUTH AFRICA
HELD
AT JOHANNESBURG
C
ase
No: JR 1471/15
In
the matter between:
SIMON MABE
Applicant
and
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
First
Respondent
N HLABA (
N.O.
)
Second Respondent
ADT SECURITY (PTY)
LTD
Third Respondent
Heard
:
16 March 2017
Delivered
:
29 March 2017
Summary:
(Review – condonation ruling –
referral excessively late – explanation for inability to refer
dismissal dispute
insufficient – prospects of success poor –
evidence of conduct of suspected bias insufficient to support
reasonable
apprehension of bias)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is an application to review a
condonation ruling by the second respondent, who refused to condone
the late referral of the
applicant’s dismissal dispute. The
applicant had been dismissed for incapacity on 28 February 2015.
[2]
The referral was made nearly 3 months late.
He referred his dismissal dispute on 20 June 2015, whereas it should
have been referred
on 30 March 2015. In other words, it took the
applicant nearly 4 months to refer the unfair dismissal dispute from
the date of
his dismissal. A referral which takes four times longer
than it should have is exceptionally late by any standard.
[3]
The arbitrator found that the delay was not
justified because the applicant did not bring documentation to
substantiate his illness.
Apart from the failure to explain the
delay, the arbitrator found that he did not have reasonable prospects
of his success if his
case proceeded to arbitration because the
applicant’s own doctor had said that he was not fit to work and
the employer’s
document doctor had confirmed this. Moreover,
the applicant said that it was difficult for him to walk sometimes.
Grounds of review
[4]
The applicant’s grounds of review may
be summarised as follows:
4.1
The applicant complains about an alleged
private discussion with the third respondent’s representatives
in the context of
a situation where the respondent had not opposed
the condonation application.
4.2
The Commissioner was also grossly
unreasonable in holding that he hadn’t provided a reasonable
explanation for the delay when
it was evident that it was undisputed
that he was ill and unable to walk.
4.3
The employer also did not follow a fair
process in determining whether his incapacity necessitated his
dismissal or whether his
duties could have been adapted.
[5]
There is an obvious contradiction in the
applicant’s claim that he was too ill to attend to his case but
that his employer
should have placed him on light duty instead of
terminating his services. The third respondent pointed out in its
answering affidavit
that the applicant had in fact applied for
disability benefits which had been granted on the basis that he was
totally and permanently
disabled. It cannot be said that the
Commissioner was wholly unreasonable in taking this into account in
reflecting on his prospects
of success.
[6]
The Commissioner had noted that the
applicant had failed to provide any supporting documents to explain
his inability on account
of illness to refer his matter over a period
of four months. Although he had claimed to have gone to a herbalist,
the applicant
had also not provided any certificate from his
traditional healer in support of his claim. He also claimed that his
medication
made him sleepy. All of this points to the fact that he
was receiving medical assistance of one kind or another and in the
circumstances
ought at least to have been able to get some
documentary support to validate his claim that he was simply unable
to take the steps
necessary to challenge his dismissal. I note also
that he claimed to have sought legal advice but had not been helped
but gave
no details of where he had sought such legal advice and when
he had tried to obtain it, which might have been an important
consideration
in explaining the long delay. In cases of this nature,
where the delay is so extensive, an applicant should give a more
detailed
explanation why during the time when they were obtaining
medical attention and presumably visiting medical practitioners, it
was
simply not feasible for them to attend to the submission of
referral forms either personally or with assistance.
[7]
The more serious allegation made by the
applicant concerns the alleged private conversation the
Commissioner’s held with the
third respondent’s
representative in his absence after the Commissioner said she would
issue a ruling. The detail of this
alleged discussion in the
applicant’s founding affidavit is extremely brief and lacking
in detail. The third respondent’s
employee relations manager
denies having any private conversation with the Commissioner, whether
in the presence of the applicant
or not, in any shape or form. The
applicant did not file any replying affidavit, so the evidentiary
basis for finding in the applicant’s
favour on this point is
simply insufficient. At the hearing of the review application, it
emerged that the basis for the applicant’s
contention was
simply that the third respondent’s representatives had remained
in the conciliation venue after the hearing
was adjourned and not
that he had any direct evidence of any further interaction between
the arbitrator and those representatives.
Strictly speaking, this was
not part of the factual material set out in the applicant’s
review papers, but even if it was
admitted as evidence it would not
be sufficient grounds for concluding that the arbitrator had acted
improperly. In the circumstances,
I am not satisfied that the
applicant has demonstrated on the evidence that the Commissioner was
guilty of conduct that would reasonably
create an apprehension of
bias on her part.
[8]
In the circumstances, I am not satisfied
that the applicant has laid out sufficient grounds for the court to
set aside the condonation
ruling.
Order
[9]
The review application is dismissed.
[10]
No order is made as to costs.
_______________________
Lagrange J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
In
person
THIRD
RESPONDENT:
M
Lennox instructed by Eversheds