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[2017] ZALCJHB 115
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Independent Municipal and Allied Trade Union (IMATU) obo Maleke v Emfuleni Local Municipality and Others (JR1502/15) [2017] ZALCJHB 115 (29 March 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case
no: JR 1502/15
In the matter between:
INDEPENDENT MUNICIPAL AND ALLIED
TRADE UNION (IMATU) OBO M
MALEKE
Applicant
and
EMFULENI LOCAL
MUNICIPALITY
First Respondent
M LEGODI
N.O.
Second Respondent
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING COUNCIL
Third Respondent
Heard:
25 August 2016
Delivered:
29 March 2017
JUDGMENT
MAHOSI
AJ
Introduction
[1]
This is an application in terms of section 158(1)(g) read with
section 145 of the Labour Relations Act (LRA)
[1]
for an order to review and set aside a condonation ruling made by the
second respondent dated the 2
nd
of June 2015, under the auspices of the third respondent under case
number GPD021511. In his ruling, the commissioner granted the
condonation for the late charging of the employee.
[2]
The applicant is the Independent Municipal & Allied Trade Union
(IMATU), a trade union duly registered as such in terms
of section 96
of the LRA, acting on behalf of Mr Mojalefa (“employee”)
who is its registered member and is currently
employed by the first
respondent.
[3]
The first respondent is Emfuleni Local Municipality (“the
Municipality”), a municipality established in terms of
the
Local Government legislation of the Republic of South Africa, with
its principal place of business at corner Klasie Havenga
and Frikkie
Meyer Boulevard, Vanderbijlpark, Gauteng.
[4]
The second respondent is Ms. M Legodi (“the commissioner”),
an adult female duly appointed and acting as an arbitrator
under the
auspices of the third respondent. The commissioner issued the
condonation ruling which is the subject of this review
application.
[5]
The third respondent is the South African Local Government Bargaining
Council (“SALGBC”), a bargaining council duly
registered
in terms of section 29 of the LRA.
Factual background
[6]
The
material facts giving rise to this application are not in dispute
and may be
summarised thus. On the 1
st
of June 2014, the Municipality employed the employee as a HIV-AIDS
coordinator. The Municipality established that the employee
did not
resign from his previous employer prior to accepting employment with
it. On the 26
th
of January 2015, the Municipality charged the employee with
misconduct as follows:
‘
Charge
1
MISPREPRESENTATION
You
mis-conducted yourself in that on or about the 01 JUNE 2014 you
unlawfully accepted employment with Emfuleni Local Municipality
whereas you are still employed at Clinix Naledi-Nkanyezi Private
Hospital. This charge is brought to you in terms of clauses 1.2.8,
and 2.7.5 read with clause 2.7.10 of the Collective Agreement.
ALTERNATIVE
CHARGE
GROSS
DISHONESTY
You
mis-conducted yourself in that on or about 01
st
June 2014
you accepted other employment outside of normal working hours without
the prior permission of the Department Head or
Municipal Manager.
This
charge is brought to you in terms of clause 1.2.8, and 2.7.5 read
with clause 2.7.10 of the Collective Agreement.’
[7]
The Municipality served the charge sheet on the employee on the 26
th
of January 2015. The charge sheet invited the employee to a
disciplinary hearing scheduled to commence on the 30
th
of January 2015. On the 30
th
of January 2015, the hearing did not start due to the chairperson’s
unavailability. On the 2
nd
of February 2015, the applicant trade union alerted the first
respondent in writing that it would challenge the lawfulness of the
disciplinary hearing against the employee as a result of a
contravention of clause 6.3 of the Disciplinary Procedure and Code
Collective Agreement (“Collective Agreement”).
[8]
In view of the fact that there was a delay in instituting a
disciplinary hearing against the employee, the Municipality brought
the condonation application as required by the Collective Agreement.
The condonation application was heard by the second respondent
on the
29
th
of May 2015. The second respondent issued a ruling in
terms of which he granted the said condonation application.
Dissatisfied
with the ruling the applicant launched this review
application.
The condonation application
[9]
In its application for condonation, the Municipality submitted that
it became aware of the misconduct on the 15
th
of September
2014 and that the employee was made aware of the alleged misconduct
on the 22
nd
of September 2014. The reason for the delay in
instituting the disciplinary hearing was stated as follows:
‘
The
matter involves misrepresentation, therefore the investigations were
involving another employee which was supposed to give us
information
relating to misrepresentation of the accused employee.’
[10]
On the prospect of success, the Municipality submitted that it
believes that it has good prospects of success because the matter
involves misrepresentation and gross dishonesty which amounts to
serious misconduct that can lead to dismissal. The Municipality
further submitted that the employee wrote a letter of apology after
being made aware of the alleged misconduct.
[11]
It was the Municipality’s submission that if condonation was
not granted, it would be prejudiced as it would lead to
a situation
where all employees in the health profession would be involved in
acts of moonlighting. Furthermore, the Municipality
submitted that
the employee would not be prejudiced by the granting of the
condonation application as he is not on suspension and
further that
he would be given an opportunity to answer to the allegations against
him.
The condonation ruling
[12]
The commissioner found that the Municipality was approximately one
month late in instituting the disciplinary hearing. This
was based on
the premise that the employee was made aware of the misconduct on the
22
nd
of September 2014 and the charge sheet was drafted
and served on him on the 26
th
of January 2015. According
to the commissioner, the three months’ period would fall on the
22
nd
of December 2014.
[13]
As aforesaid, the disciplinary hearing was scheduled to commence on
the 30
th
of January 2015. However, it was postponed as the
chairperson was not available. The commissioner noted that the
Municipality delayed
to reschedule the disciplinary hearing until it
was prompted by the applicant. According to the commissioner, the
disciplinary
hearing was set to proceed had the chairperson shown up.
The commissioner found nothing before her to suggest that the union
wanted
to raise a point in terms of clause 6.3 of the Collective
Agreement. She found that there was no need for the Municipality to
apply
for condonation on the 19
th
of February 2015 as the
matter had been postponed earlier. The commissioner was further of
the view that the Municipality succeeded
in showing good cause for
wanting the employee to answer the allegation of misconduct. She also
found the degree of delay not to
be excessive. She was of the opinion
that granting the condonation would serve the interest of justice.
Grounds for review
[14] The applicant challenged the
commissioner’s ruling on the basis that she failed to exercise
her discretion judiciously
when considering the condonation
application, which led her to arrive at an unreasonable conclusion.
[15] The applicants’ ground of
review was essentially that the commissioner misconstrued the fact
that the Municipality (according
to its own condonation application)
had become aware of the alleged misconduct on the 15
th
of
September 2014 and not on the 22
nd
of September 2014. The
applicant further took issue with the commissioner’s finding
that the three months’ period as
envisaged by clause 6.3 of the
Collective Agreement is interrupted by the service of the charge
sheet.
[16] The second ground of review was
that the commissioner acted unreasonably when she stated that there
was nothing before her
to suggest that the applicant wanted to raise
a point in terms of clause 6.3. of the Collective Agreement on the
30
th
of January 2015. What is not clear to the applicant
is what weight the commissioner placed on this consideration.
[17] The third ground of review was
that the commissioner committed a gross irregularity by ignoring the
fact that the explanation
for the delay was so poor that it amounted
to no explanation at all. Further, that she found that the
Municipality had established
good cause for the delay without giving
reasons for her finding. The fourth ground of review was that
the commissioner failed
to consider whether the Municipality had
established prospects of success on a
prima facie
basis.
[18] The fifth ground of review was
that the commissioner committed a gross irregularity when she failed
to consider whether the
first respondent was barred from disciplining
the employee in light of the provisions of annexure “B”
of the Collective
Agreement, which issue was raised in the answering
affidavit that was placed before her.
The applicable law and analysis
[19]
The jurisprudence for review of condonation rulings is well
established and has been expressed in numerous cases of this Court
and the Labour Appeal Court. It is trite that condonation is a
discretionary remedy.
[2]
The proceedings before the SALGBC are governed by the Collective
Agreement on Rules for the Conduct of Proceedings. Rule 35 thereof
requires
the applicant for condonation to show good cause as to why
condonation must be granted. “On good cause shown”
or
“sufficient cause shown” was examined by the Supreme
Court of Appeal in
Melane
v Santam Insurance Co Ltd
[3]
where
it was stated as follows:
“
In
deciding whether good 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
is the
degree of lateness, the explanation thereof, 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 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. I would add that the discursiveness
should be discouraged in canvassing the prospect
of success in the
affidavits. I think that all the foregoing clearly emerges from the
decisions of this Court, and therefore I
need not add to the
overgrowing burden of annotations by citing the cases.”
[20]
In
Portapa
t/a Supabets v Moodley N. O. and Others,
[4]
Molahlehi J restated a principle that was laid down in the judgment
of
Grootboom
v National Prosecuting Authority and Another
[5]
in
which the court stated that the test to be applied when considering
an application for condonation is the interest of justice.
In that
case, Zondo J delivered a minority judgment and stated as follows:
‘
[50]
In this Court the test for determining whether condonation should be
granted or refused is the interests
of justice. If it is in the
interests of justice that condonation be granted, it will be
granted. If it is not in the interests
of justice to do so, it
will not be granted. The factors that are taken into account in
that inquiry include:
(a)
The length of the delay;
(b)
The explanation for, or cause for, the delay;
(c)
the prospects of success for the party seeking condonation;
(d)
the importance of the issue(s) that the matter raises;
(e)
the prejudice to the other party or parties; and
(f)
the effect of the delay on the administration of justice.
Although
the existence of the prospects of success in favour of the party
seeking condonation is not decisive, it is an important
factor in
favour of granting condonation.
[51]
The interests of justice must be determined with reference to all
relevant factors. However,
some of the factors may justifiably
be left out of consideration in certain circumstances. For example,
where the delay is unacceptably
excessive and there is no explanation
for the delay, there may be no need to consider the prospects of
success. If the period
of delay is short and there is an
unsatisfactory explanation but there are reasonable prospects of
success, condonation should
be granted. However, despite the presence
of reasonable prospects of success, condonation may be refused where
the delay is excessive,
the explanation is non-existent and granting
condonation would prejudice the other party. As a general
proposition the various
factors are not individually decisive but
should all be taken into account to arrive at a conclusion as to what
is in the interests
of justice.’
[21]
It has been accepted by the courts that the exercise of the
discretion to grant or refuse condonation can only be assailable
on
review where the commissioner failed to exercise his discretion
judiciously and fairly.
[6]
In
Collet
v Commission for Conciliation, Mediation and Arbitration and
Others,
[7]
the
LAC stated as follows:
‘
[29]
A court of appeal will not lightly interfere with the exercise of a
judicial discretion by a lower
court. An appellant who challenges the
exercise of a judicial discretion will have to show that such
discretion was not exercised
judicially. More specifically the
appellant will have to show that the court
a
quo
either:
29.1
failed to bring an unbiased judgment to bear on the matter;
29.2
did not act for substantial reasons;
29.3
exercised its discretion capriciously or arbitrarily;
29.4
exercised its discretion upon wrong principle;
29.5
committed a misdirection of such a serious nature and degree as to
justify a
conclusion that it acted improperly or unreasonably.
[30]
The legal position was summarised as follows by the Constitutional
Court:
“
It
is trite law that a court considering whether or not to grant
condonation exercises a discretion. The discretion must, of course
be
exercised judicially on a consideration of all the facts and ‘in
essence it is a matter of fairness to both sides.’
It is clear
that the SCA may decide an application for condonation without
considering the merits of the case, though it does so
only where
there is a gross and flagrant failure to comply with the rules.
Ordinarily, the approach of an appellate court to the
exercise of
such a discretion is that it will not set aside the decision of the
lower court ‘merely because the court of
appeal would itself,
on the facts of the matter before the lower court, have come to a
different conclusion; it may interfere only
when it appears that the
lower court had not exercised its discretion judicially, or that it
had been influenced by wrong principles
or a misdirection on the
facts, or that it had reached a decision which in the result could
not reasonably have been made by a
court properly directing itself to
all the relevant facts and principles” [Footnotes Omitted]’
[22]
In this case, it is common cause that the parties are bound by the
Collective Agreement. Its purpose is provided for in clause
4 which
reads as follows:
‘
The
purpose of the Disciplinary Code is to “establish a fair,
common and uniform procedure for the management of employee
discipline”. The Code records that it is the product of
collective bargaining concluded in the Bargaining Council and that
its application is peremptory and deemed to be a condition of
service.’
[23]
The procedure to be followed in instituting the disciplinary hearing
of an employee is provided for in Clause 6 of the Collective
Agreement which reads as follows:
‘
6.1
An accusation of misconduct against an employee shall be brought in
writing before the municipal
manager or his authorised representative
for investigation.
6.2
If the municipal manager or his authorised representative is
satisfied that there is prima
facie cause to believe that an act of
misconduct has been committed, he may institute disciplinary
proceedings against the employee
concerned.
6.3
The employer shall proceed forthwith or as soon as reasonably
possible with a disciplinary
hearing but in any event not later than
three months from the date upon which the employer became aware of
the alleged misconduct.
Should the employer fail to proceed within
the period stipulated above and still wish to pursue the matter, it
shall apply for
condonation to the relevant division of the SALGBC.’
[24] Clause 6.10 of
the Collective Agreement requires that the disciplinary hearing
should commence within a reasonable time from
the date of service of
the Notice of Misconduct and that it should take place not earlier
than five (5) days and not later than
fifteen (15) days from the date
of service of the Notice of Misconduct. The commissioner was required
to determine whether the
Municipality should be granted condonation
to discipline the employee outside the three-months period as
provided for in clause
6.3 of the Collective Agreement. In
considering the condonation application, the commissioner was
required to exercise her
discretion
judiciously. In doing so, she
had
to take into consideration all the facts, which include but are not
limited to the degree of lateness, the explanation thereof,
the
prospects of success in the main case, the importance of the case and
the interest of justice.
[8]
[25]
The applicant’s view that the commissioner was duty-bound to
consider prospects of success when determining whether to
grant
condonation
is
inaccurate. As aforesaid, it is accepted that the interests of
justice must be determined with reference to all relevant factors.
However, in certain circumstances some of the factors may justifiably
be left out of consideration. On the question of whether
the second
respondent committed a gross irregularity when she failed to consider
whether the first respondent was barred from disciplining
the
employee, the applicant relied on the provisions of annexure “B”
of the Collective Agreement which require that
the disciplinary
hearing should take place within a reasonable period but not
exceeding six months calculated from the first day
the employer
became aware of the alleged misconduct up to and including the first
day of disciplinary hearing. According to the
applicant, the six
months’ period expired on the 15
th
of March 2015. Taking into consideration that the condonation
application was filed on the 19
th
of February 2015, which was before the lapse of the six months’
period, it cannot be said that the commissioner committed
a material
error of law, which constitute gross irregularity.
[9]
[26] On the degree
of lateness, the three months’ period as prescribed by clause
6.3 of the Collective Agreement must be calculated
from
the date upon which the employer became aware of the alleged
misconduct.
It
is apparent from the condonation application that the Municipality
became aware of the misconduct on the 15
th
of September 2014. However, the commissioner calculated the three
months’ period from the 22
nd
of September, which is the date upon which the employee became aware
of the charges. It is my view that the commissioner misdirected
herself by making an error in the interpretation of 6.3. Her flawed
interpretation of clause 6.3 resulted in the incorrect finding
that
the first respondent was approximately one month late.
[27] The Municipality had until the
15
th
of December 2014 to proceed with the disciplinary
hearing. It was common cause that the disciplinary hearing was
scheduled to be
heard on the 30
th
of January 2015 and that
it was postponed due to the chairperson’s unavailability.
Although the commissioner found that the
Municipality delayed to
reschedule the disciplinary hearing, she found that there was no need
for the Municipality to apply for
the condonation application on the
19
th
of February 2015. Her interpretation was that, the
three-month period prescribed by clause 6.3 of the Collective
Agreement was
interrupted by the scheduling the disciplinary hearing,
which did not proceed on the scheduled date.
[28] It is my view
that the commissioner misconstrued clause 6.3, which provides that
“the
employer
shall
proceed
forthwith or as soon as reasonably possible with a disciplinary
hearing but in any event not later than three months from the date
upon which the employer became aware of the alleged misconduct”
.
[10]
I
agree with the applicant that the three months period envisaged in
clause 6.3 is not interrupted by the scheduling of the disciplinary
hearing. It is interrupted by the commencement of a disciplinary
hearing. Although the Municipality scheduled the disciplinary
hearing
within 15 days from the date of service of the notice of misconduct,
it failed to proceed with the disciplinary hearing
within the time
limit provided for in clause 6.3 of the Collective Agreement. The
degree of lateness should have been calculated
by taking into
consideration the date on which the Municipality became aware of the
alleged misconduct and the date of the condonation
application. The
Municipality’s delay in instituting the disciplinary hearing
against the employee was, therefore, just over
two months.
[29] As such, the commissioner erred
in her findings that the degree of lateness was approximately one
month and that there was
no need for the first respondent to apply
for the condonation application on the 19
th
of February
2015. However, it is my view that the said errors do not constitute
misdirection of such a nature that they would warrant
interference
with her discretion. In exercising her discretion the commissioner
considered the facts before her and found that,
although the
Municipality failed to furnish good reasons for the delay, granting
condonation would serve the interest of justice.
She also found the
degree of lateness not to be excessive
[30]
It is my view that the applicant did not show that the commissioner
acted capriciously, or on wrong principle, or in bad faith,
or
unfairly, or that in exercising her discretion she reached a decision
that a reasonable decision-maker could not reach. As such,
there is
no reason for this Court to interfere with her discretion. With
regard to costs, I am of the opinion that the requirements
of law and
fairness dictate that there should be no order as to costs.
Order
[31]
In the premises, I make the following order:
(i)
The application for an order to review and set aside a condonation
ruling made
by the second respondent dated the 2
nd
of June 2015, under the auspices of the SALGBC under case number
GPD021511 is dismissed.
(ii)
There is no order as to costs.
__________________
Mahosi AJ
Acting
Judge of the Labour Court
APPEARANCES:
FOR THE APPLICANTS:
Mr. V.G. Mkwibiso, IMATU official.
FOR THE THIRD RESPONDENT:
Adv. M.Z. Makoti,
Instructed
by Leepile and Mbewe Incorporated
[1]
Act 66 of 1995.
[2]
Hardrodt (SA) (PTY)
Ltd v Behardien and Others
(2002)
23 ILJ 1229 (LAC) at para 5.
[3]
1962
(4) SA 531
(SA) 532B-F.
[4]
(JR 1027/13) [2016]
ZALCJHB 103 (15 MARCH 2016).
[5]
2014]
1 BLLR 1 (CC)
[6]
Wood
v Potane NO and Others
[2004] 7 BLLR 722
(LC) at paras 7-8.
[7]
[2014]
6 BLLR 523 (LAC).
[8]
Melane
v
Santam
Insurance
Co
Ltd
1962 (4) SA 531
at 532C-E
;
Seatlolo and Others v Entertainment Logistics Service (A Division of
Gallo Africa Ltd)
(2011) 32 ILJ 2206 (LC) at para 7.
[9]
Motor Industry Staff
Association and Another v Silverton Spraypainters & Panelbeaters
(Pty) Lt and Others
(2013)
34 ILJ 1440 (LAC) at para 59.
[10]
Imatu Obo Greyvenstein v Ekurhuleni
Metropolitan Municipality and Others
(JR 1697/14) [2015] ZALCJHB 190 (2 July 2015).