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[2017] ZALCJHB 135
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Absa Bank Limited v Director General: Department of Labour and Another (J837/17) [2017] ZALCJHB 135 (25 April 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J 837/17
In the
matter between
ABSA BANK LIMITED
Applicant
and
DIRECTOR GENERAL: DEPARTMENT
OF
LABOUR
First Respondent
MINISTER OF LABOUR
Second Respondent
Heard:
13 April 2017
Delivered:
25 April 2017
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1] The
applicant approached this Court on an urgent basis to seek a
declaratory order in the following terms:
“
1.
………
2.
declaring that the applicant has complied with
section 21 of the Employment Equity Act, 55 of 1998 (“EEA”)
in that it
submitted its employment equity report for 20015/2016
reporting period (“Report”) to the first respondent on 15
January
2017;
3.
Alternatively to prayer 2, and in the event that
this Honourable Court does not conclude that the applicant submitted
its Report
to the first respondent 15 January 2017, condoning the
applicant’s failure to comply with section 21 of the EEA in
regard
to the form or timing of its submission and/ or directing the
first respondent to receive the applicant’s report and condone
the non-compliant submissions thereof;
4.
Directing the second respondent to reflect the
applicant’s name on the register published in terms of section
41 of the EEA,
confirming that it has complied with section 21 of the
EEA
…”
[2] The
respondents in their answering affidavit do not appear to vehemently
oppose the applicant’s application. They are
not litigants in
the ordinary sense and are mere custodians of the EEA, whose only
interest in the matter is to ensure implementation,
compliance and
enforcement of the provisions of that Act. They merely seek to
demonstrate that according to their records, it cannot
be said that
ABSA has submitted its Report for 2015/2016.
Background:
[3]
The applicant, ABSA Bank
Limited is a public company registered as a bank in terms of the
Banks Act
[1]
.
It is a designated employer in terms of the provisions of the EEA.
Section 21 of the EEA
[2]
places an obligation on every designated employer to submit an annual
employment equity report (Report) to the Department of Labour
(DOL).
The first respondent, the Director General, is the administrative
head and accounting officer, and by virtue of the provisions
of
section 21, every designated employer must submit employment equity
reports to his office annually.
[4]
The second respondent, the
Minister of Labour is the Executive head of the DOL and by virtue of
the provisions of section 41 of
the EEA, she is responsible for
maintaining the register and publication of the annual Report as
submitted by designated employers.
[3]
[5]
The applicant’s Report
was due for submission either on the first working day of October
2016
[4]
or on the 15 January 2017
[5]
.
Central to this dispute is whether the applicant had submitted its
2015/2016 report on 15 January 2017.
[6] The
prescribed procedure of submitting reports is done through the DOL’s
online computerized system, in terms of which
the representative of
the designated employer, must first login and proceed to capture the
employment equity data in each corresponding
field. The system is
designed in such a way that the representative may log in and out
before the data is submitted. The data already
captured is however
not lost as the system allows the representatives to “save”
the data and on a future log, proceed
from where they had left off.
[7] The
data may be accessed and edited by the representative any time prior
to the 15 January deadline or formal submission. Once
the deadline
has passed, the system is not accessible to the representative. The
system prior to the deadline requires the representative
once
satisfied with the data captured, to press the “submit”
button to confirm submission. Once the ‘submit’
button
has been pressed, a computer generated email is sent to the Chief
Executive of the designated employer confirming the submission
of the
Report.
[8] The
applicant avers that its Employee Relations Manager – Human
Resources, Ms Denise Mantle, was tasked with the uploading
and
submission of the Report online on this occasion. The Report was
completed on the Online Platform prior to the deadline for
submission
after the entering of all required data. It was further averred that
Mantle experienced technical difficulties in logging
in during 48
hours preceding the deadline. In spite of those difficulties, at
approximately 19h46 on 15 January 2017, Mantle was
able to complete
and submit the report by pressing the “submit” button.
[9] On or
about 19 January 2017, the DOL, at Mantle’s request, sent to
ABSA via email, what is purported to be the Report
as completed by
her. On 13 February 2017 however, an email was sent to ABSA stating
that the Report was not successfully submitted.
On the same day,
another email was received by ABSA which
inter alia
stated
that:
“
In
the unfortunate event that you may have received today, 13 February
2017, a reminder notifying you of the closure of the EE system
on 15
January 2017, please ignore as it was sent in error.”
[10] On
28 February 2017, the DOL notified Mr Sifiso Lukhele
of the applicant’s Head of Employee Relations
via telephone
that the applicant had not successfully submitted its report. On 1
March 2017, an urgent meeting was held between
ABSA and the DOL to
clarify the issue of the submission of the Report. At that meeting,
ABSA was advised that the Report was completed
but not submitted, as
the ‘submit button’ was not pressed by Mantle. Further to
that, officials of the DOL in that
meeting indicated that they had no
authority to condone the “late” submission of the Report.
[11] At a
further meeting held on 2 March 2017 between ABSA and high-ranking
officials of the DOL, it was reiterated that the Report
had been
completed but not submitted in the manner described. In the
light of the impasse, ABSA then approached this court
with the
current application.
Jurisdiction
and Urgency:
[12] It
was correctly pointed out on behalf of the applicant that this Court
has exclusive jurisdiction to determine any dispute
about the
interpretation or application of the EEA in terms of the provisions
of sections 49 and 50. The respondents did not further
contest the
urgent nature of this matter. I am satisfied that on the pleadings,
having had regard to the provisions of Rule 8 of
the Rules of this
Court, the applicant has equally made out a case for urgency, more
specifically in view of the imminent publication
of the section 41
register by the Minister, and the reputational harm and associated
commercial prejudice that may follow if the
relief sought is not
obtained.
The
submissions:
[13] The
consequences for the failure to comply with the provisions of section
21 of the EEA for the applicant are that;
a)
It will be not be included in a register of complying employers which
will be published by the Minister in
terms of section 41 of the EEA;
b)
It will consequently suffer severe reputational harm and associated
commercial prejudice.
[14] It
was accordingly submitted on behalf of the applicant that on the
evidence, it had indeed complied with its obligations under
section
21 to submit the report, or at most, it had substantially complied
with its obligations, and therefore entitled to the
order sought. In
this regard, it was submitted that the Director General appears to
accept that ABSA duly entered all the relevant
information to be
contained in the Report on the Online Platform prior to the deadline,
and that he had access to the completed
report from the date that it
was completed.
[15] ABSA
contends that once the report was submitted it became a public
document, and that to the extent that the DOL insisted
that it did
not have any record of the ABSA’s act of electronic submission,
this could conceivably only be put down to a
technical system glitch,
which had prevented the submission from being reflected on the DOL’s
system.
[16] The
applicant’s alternative argument, if it was concluded that it
had not complied with its obligations or where there
was no evidence
of ‘sufficient’ compliance, was that this Court or the
DOL should grant it condonation regarding the
limited non-compliance
with the provisions of section 21 of the EEA.
[17] The
respondents on the other hand merely sought to put all relevant
facts before the court and to identify the statutory
provisions and
the law applicable. It is maintained that the applicant has not
complied with the requirement entailing the submission
of the report
by pressing the ‘submit’ button when it purportedly did
so. It was contended that the objective evidence
suggested that ABSA
had failed to submit its report in that the ‘submit’
button in the online form was not pressed
before midnight on 15
January 2017. To this end, the argument was that the only issue for
consideration before the Court was whether
the court should condone
ABSA’s failure to submit timeously.
Evaluation:
Was
there compliance with the provisions of section 21 of the EEA?
[18]
Section 21 of the EEA read with regulation 10 of the Employment
Equity Regulations, 21 (Regulations) prescribes the manner
of
reporting and submission of reports. Regulation 10 (2) envisages
reports being submitted electronically using the online reporting
system available on the DOL’s website.
[19] It
was correctly pointed out on behalf of the respondents that there is
nothing in section 21 or Regulation 10 that expressly
provides that
reports are deemed to have been submitted when the employer’s
representative presses the ‘submit’
button. That
requirement is merely meant for the DOL’s own proper and
effective administration of the process of reporting.
[20] I am
further in agreement with the submissions made on behalf of the
respondents that a completion of the form online cannot
amount to a
submission as employers are still at liberty to amend those forms
before submission. In this case however the issue
is whether the
alleged failure to press the ‘submit’ button meant that
the process of submission was not completed.
This in my view is a
factual question in view of Mantle’s contention that she had
indeed pressed the ‘submit’
button. It is also a legal
question to the extent that the definition of ‘serve’ or
‘submit’ in section
1 of the EEA provides that;
‘
serve’
or ‘submit’ in relation to any communication means;
(a)
To send it in writing delivered by hand or
registered post;
(b)
To transmit it using any electronic mechanism as
a result of which the recipient is capable of printing the
communication; or
(c)
To send or transmit it in any other prescribed
manner’
[21] In
this case, I did not understand it to be contested that;
(a)
Mantle on 15 January 2017 at 19h46 had completed and transmitted the
report on the DOL’s
Online Platform. The ABSA’s record of
login as per page 113 of the bundle indicates a successful
transmission of the report.
(b)
On 19 January 2017, the DOL, at Mantle’s request e-mailed her
the submitted report,
which implies that it was in possession of the
report as it was on its database, and further able to print that
report. The fact
that the DOL had not formally acknowledged receipt
of the report after it was immediately transmitted does not imply
that it was
not received.
(c)
At no stage did the DOL advise Mantle that the report was not
received until 18 February
2017 and subsequent dates leading to
various meetings and communication between the parties. This was
notwithstanding the fact
that the DOL had emailed back the report to
Mantle on 19 January 2017, or that DOL’s own e-mail of 13
February 2017 informed
ABSA that a system generated email
notification sent erroneously stating that the report was not
successfully submitted should
be ignored.
(d)
It is common cause that the report remains final, could not be
altered, was in the DOL’s
possession, and thus accessible to
members of the public.
[22]
Inasmuch it is acknowledged that the pressing of the ‘submit’
button on the online platform is essential for the
DOL to establish
whether indeed a document was submitted, this in my view takes form
over substance. It is not suggested that the
pressing of the ‘submit’
button is unimportant in view of the acknowledgement that a mere
completion of the form is
not sufficient, and also in view of the
purpose that this requirement serves. What is being suggested is that
the requirement/obligation
imposed by the DOL to press the ‘submit’
button is merely administrative and not a statutory one. Thus, once
it is
established that the communication was transmitted using the
online mechanism, and that the DOL could access and print that
report,
as contemplated in (b) of the definition of ‘serve’
or ‘submit’, the employer has discharged its obligations.
[23] To
illustrate the above point, and without suggesting that this may be
the case in point, if for example, a report or any documents
was
submitted or electronically transmitted to the DOL, and for some
reason its computerised system experienced some technological
glitch
which was unknown to the sender, can it still be said that the
document or report was not received by the recipient or sent
by
sender at the time of the technological glitch? Equally so, can it be
said in these circumstances that since the DOL had not
sent an
acknowledgement of receipt it should be concluded that the document
or report electronically submitted was not received?
The emphatic
answer should clearly be in the negative. To hold otherwise would be
to place an even more onerous burden on the sender,
to prove
submission or service beyond what is contemplated in the definition
of ‘serve’ or ‘submit’.
[24]
Similarly, the form or manner of online submission as devised by the
DOL for its own convenience and effective administration
of the
submission process cannot supersede statutory provisions. Thus in my
view, once there is a submission as contemplated within
the meaning
of ‘serve’ or ‘submit’ in the definition
section of the EEA, that should be the end of the
matter. The mere
fact that a particular mode of submission or transmission of reports
is put in place for the DOL’s own administrative
purposes and
convenience, cannot be a standard upon which compliance is measured.
What is of consequence is whether the requirements
of ‘serve’
or ‘submit’ as contemplated in the definition of the EEA
have been met.
[25] In
this case, in view of the common cause and/or the undisputed facts as
advanced by ABSA, and the evidence analysed above,
it should be found
that it had indeed submitted its 2015/2016 Report in compliance with
the provisions of section 21 of the EEA.
[26] In
the light of the above, no purpose would be served in determining
whether in the alternative ABSA had ‘substantially’
complied with section 21 or not. Equally so, it would not be
necessary to determine whether there is a need for condonation or
whether this Court is empowered in terms of the provisions of section
50 (1) to grant condonation to the extent that it was alleged
that
there was non-compliance with the provisions of section 21.
[27]
Neither party sought a cost order and there is no basis in law or
fairness to make any such order. Accordingly, the following
order is
made;
Order:
1.
In accordance with the provisions of Rule 8 of the Rules of this
Court, the applicant’s
non-compliance with the ordinary rules
for service and time-periods is condoned.
2.
It is declared that the applicant has complied with the provisions of
section 21 of
the Employment Equity Act, 55 of 1988, and has
accordingly submitted its employment equity report for the 2015/2016
reporting period
to the first respondent on 15 January 2017.
3.
The second respondent is directed to reflect the applicant’s
name on the register
to be published in terms of section 41 of the
Employment Equity Act, confirming that it has complied with the
provisions of section
of that Act.
4.
There is no order as to costs
__________________
E
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For the
Applicant:
Advocate A Redding SC with
Advocate S Budlender & Advocate M
Sikhakhane
Instructed
by:
Baker & McKenzie Attorneys
For the
First and Second Respondents:
Advocate TJ Bruinders SC
Instructed
by:
The State Attorney: Pretoria
[1]
Act
94
of 1990
[2]
Section 21(1) provides; a designated employer must submit a report
to the Director-General once every year, on the first working
day of
October or on such other date as may be prescribed.
[3]
Section 41 provides;
(1) The
Minister must keep a register of designated employers that have
submitted the reports required by section 21.
(2) The
register referred to in subsection (1) is a public document.
[4]
Section 21(1) of the Employment Equity Act
supra
[5]
Regulation 10(1) and (2):
(1)
A designated employer must submit a report to the Director General
in terms of section 21 of the Act annually
on the first day of
October or by 15 January of the following year only in the case of
electronic reporting using EEA2 form.
(2)
Employment equity reports must be addressed to the Employment Equity
Registry, Department of Labour… or
submitted electronically
using the online reporting system available on the departmental
website, www.labour.gov.za