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[2017] ZALCJHB 308
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Mthimkulu v Commission for Conciliation, Mediation and Arbitration and Others (JR2227/16) [2017] ZALCJHB 308 (25 August 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no.: JR2227/16
In
the matter between:
MUSHUSHISI
DANIEL
MTIMKULU
Applicant
and
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
ZAZI MQINGWANA N. O
Second Respondent
PASSENGER
RAIL AGENCY OF SOUTH AFRICA
Third Respondent
Heard:
11 July 2017
Delivered:
25 August 2017
JUDGMENT
Introduction
[1]
This is an application to review and set aside a
condonation ruling issued by the second respondent on 20 June 2016.
[2]
In terms of that ruling, the second respondent
found that the applicant, Mr MD Mthimkulu, had failed to show good
cause for the
late referral of his unfair dismissal dispute to the
first respondent for conciliation. The second respondent dismissed
the applicant’s
application for condonation and his unfair
dismissal dispute.
Background
and material facts
[3]
The applicant was employed by the third
respondent in 1998, as a Trainee Technician. At the time, the
applicant possessed only a
matric qualification. This was
communicated to the third respondent at the time of his employment,
together with the fact that
the applicant also had partially
completed a Diploma in Engineering from the Vaal University of
Technology.
[4]
From 2000 to 2008, the applicant occupied various
positions at the third respondent. On the applicant’s version,
those positions
were as a result of him being promoted through the
ranks over a number of years based on his experience and capability.
[5]
In 2010, the applicant was appointed into the
position of Executive Manager: Engineering Services. There is a
dispute between the
parties before this Court regarding whether the
applicant’s appointment to this position was following his
application, or
whether he was simply promoted into the position.
This dispute is not material to the outcome of this application, and
I do not
consider it necessary to resolve it.
[6]
The third respondent alleges that the applicant
submitted various qualifications at the time of his appointment to
this position.
These qualifications included a Diploma in Mechanical
Engineering from the Vaal University of Technology in 1998; a Degree
in Mechanical
and Maintenance Engineering from the University of the
Witwatersrand in 1999; and a Doctoral Degree in Engineering
Management in
2010.
[7]
Shortly after his appointment to the position of
Executive Manager: Engineering Services, the applicant’s salary
was substantially
increased. First, on his appointment, he was paid
an amount of R1 650 000.00 per annum. A little while later,
the applicant’s
salary was increased to R2 800 000.00
per annum. On the third respondent’s version, this increase to
R2 800 000.00
was made on the basis of a fraudulent offer
of employment that the applicant had provided to the third respondent
from a German-based
company, and the third respondent’s
decision, on the basis of that offer, to make a counter-offer to the
applicant. The applicant
denies this but states that the offer that
precipitated the counter-offer from the third respondent was actually
from a company
called P-Tec Systems for the position of Engineering
Specialist Consultant. He does not, however, dispute that the
counter-offer
was made and that his salary was increased to
R2 800 000.00 per annum.
[8]
During the course of 2015, various media reports
surfaced relating to the third respondent’s purchase of
locomotives from
Spain. The specific details of these reports are not
relevant to the determination of this application, save to note that
it concerned
allegations relating to a procurement process involving
several hundred million rands.
[9]
Simultaneously with the publication of these
reports, various questions concerning the applicant’s status as
an engineer and
the authenticity of his qualifications also emerged.
These included several media reports in which the academic
credentials of
the applicant were questioned.
[10]
Following the publication of these reports, the
third respondent launched an investigation into the allegations
against the applicant.
On its version, it emerged from that
investigation that the applicant was neither registered with the
Engineering Council of South
Africa, nor did he possess a Masters or
Doctoral Degree.
[11]
It also emerged out of that process that the
purported offer of employment from the German-based company to the
applicant was fraudulent.
[12]
On 18 July 2015, the applicant sent an SMS to one
of the third respondent’s Directors. The SMS stated the
following:
‘
Director
I was really embarrassed did not even know what to say. I have
nothing except a few Engineering subject from VUT. I am
really
ashamed, my experience and skills is the only thing that saw me
through the ranks. I was embarrassed to say it. I am sorry
for
letting you down and all Directors. I taught I will send an SMS
separate. Regards, Mtimkulu.’
[13]
The applicant admits to sending this SMS but
denies that it reveals any wrongdoing on his part. He also
provides no explanation
as to why he would have felt ashamed or
embarrassed by the allegations, that on his version were falsely
made, that he provided
fraudulent qualifications during the period of
his employment.
[14]
Shortly thereafter, on 23 July 2015, the
applicant handed the third respondent a letter of resignation.
He informed the third
respondent that his resignation was with
immediate effect.
[15]
The third respondent did not accept the
applicant’s immediate resignation and informed him then that it
intended to charge
him with misconduct and convene a disciplinary
hearing during his notice period.
[16]
The applicant alleges that he was then off sick
until February 2016 and had no knowledge of the third respondent’s
intention
to institute a disciplinary hearing against him. He says
this in his replying affidavit in this Court, despite having admitted
in his affidavit in support of his application for condonation in the
CCMA that he was told at the time of his resignation, in July
2015,
of the third respondent’s intention to conduct a disciplinary
hearing. The applicant also admitted to having sight
of a media
report in July 2015, which also made reference to the third
respondent’s intention to convene a disciplinary hearing.
[17]
The third respondent states that it convened the
hearing and dismissed the applicant in August 2015, in absentia, and
that it informed
the applicant of his dismissal in August 2015 by
e-mail, transmitted to his private e-mail address.
[18]
The applicant denies having received such e-mail
and alleges that he first became aware of his dismissal in February
2016, when
he reported for duty again at the third respondent. He
says so despite not being remunerated since August 2015.
Evaluation
[19]
The second respondent’s finding with
regards to the date on which the applicant became aware of his
dismissal was central
to the determination of the degree of lateness
and whether the applicant had provided a reasonable explanation of
that delay.
[20]
The applicant alleges that the second respondent
committed a number of gross irregularities in the conduct of the
proceedings.
All three of the applicant’s listed grounds
of review criticise the second respondent’s finding regarding
the date
on which the applicant became aware of his dismissal, and
his assessment of the evidence before him that was material to this
finding.
[21]
The second respondent found on the evidence
before him that the applicant was dismissed on 22 August 2015, and
that it was improbable
that he only became aware of his dismissal in
February 2016. He made this finding having regard to the following
evidence:
21.1) the applicant was
informed in July 2015 when he handed in his resignation with
immediate effect that the third
respondent intended to hold the
applicant to his notice period of one month;
21.2) the applicant was
also informed at that time that the third respondent intended to
convene a disciplinary hearing
against him in respect of various
allegations of misconduct within the period of his notice;
21.3) the applicant was in
any event aware of a media report published in or about July 2015
relating to his resignation
which made mention of the third
respondent’s decision to institute disciplinary proceedings
against him;
21.4) the applicant’s
assertion that his private e-mail address, to which the third
respondent transmitted the
notice informing him of his dismissal, was
linked to his work e-mail address and he, therefore, did not receive
his dismissal letter,
was improbable; and
21.5) the third respondent
last remunerated the applicant in July 2015, and the applicant’s
failure to follow
up with the third respondent from July 2015 to
February 2016 regarding its failure to remunerate him was
inconsistent with his
allegation that he believed that he was still
employed by the third respondent.
[22]
In light of
his finding that the applicant was dismissed in August 2015, and that
he was informed of his dismissal then too, the
second respondent then
found that the referral to conciliation in terms of section
191(1)(b)(i) of the Labour Relations Act
[1]
was accordingly 176 days late.
[23]
Given that the entire explanation provided by the
applicant as to why the referral was made late revolved around his
version that
in fact he only became aware of his dismissal in
February 2016, the second respondent then found that the applicant
had failed
to provide a reasonable explanation for the delay in
referring his dispute to conciliation.
[24]
Despite
this, and the dictum of the Labour Appeal Court in
National
Union of Mineworkers v Council for Mineral Technology
[2]
(to which the second respondent correctly referred to), the second
respondent proceeded to consider the applicant’s prospects
of
success and found also that the applicant had not demonstrated good
prospects of success in the main claim.
[25]
The second respondent concluded in those
circumstances that the applicant had failed to show good cause why
the late referral of
his unfair dismissal dispute should be condoned.
[26]
Section 190(1) of the LRA states that:
(1)
The date of dismissal is the earlier of -
(a)
the date on which the contract of employment
terminated; or
(b)
the date on which the employee left the service
of the employer.
[27]
At best for the applicant, the date of his
dismissal was 22 August 2017. The time period prescribed by section
191(1)(a)(i) within
which he had to refer his unfair dismissal
dispute to conciliation accordingly started running from that date,
being also the date
on which the third respondent made a final
decision to dismiss.
[28]
The only explanation provided by the applicant
for the period between 22 August 2015 and 16 February 2016 was that
he was unaware
of his dismissal.
[29]
Given the second respondent’s finding on
the probabilities that the applicant was aware of his dismissal in
August 2015, there
was then simply no reasonable explanation provided
by the applicant as to why he referred the dispute late.
[30]
Section
191(2) of the LRA permits the CCMA to condone the referral of an
unfair dismissal dispute outside of the time period prescribed
by
section 191(1)(a)(i). In
Melane
v Santam Insurance Co Ltd
,
[3]
the Appellant Division set out the test for the determination of
applications of this nature. In short, that test requires a balancing
of various factors, including: the length of the delay; the
explanation provided for the delay; the prospects of success; and the
prejudice that the applicant will suffer if the applicant is not
granted.
[31]
These are all issues that were properly
considered by the second respondent in arriving at the conclusion
that he did. I am not
persuaded that he has committed any
irregularities in the manner alleged by the applicant, or at all. It
is indeed improbable
that the applicant could not have known about
his dismissal in August 2015 when he was not remunerated since
then.
[32]
At the hearing of this application, counsel for
the applicant submitted that he was also instructed that a further
reason why the
applicant could not enquire from the third respondent
about why he had not been remunerated since July 2015 was that the
conditions
imposed upon him on his release on bail (the applicant was
also charged criminally) prevented him from contacting the third
respondent.
[33]
This issue was neither raised in the papers
before this Court nor in the applicant’s affidavit in support
of his application
for condonation in the CCMA. I am not
inclined to consider it. However, even if I were to, I am in
any event not persuaded
that this in itself is a reason enough to
explain a period of approximately six months.
[34]
Regarding costs, I am of the view that an order
for costs is not warranted.
Order:
[35]
In the circumstances, I make the following order:
1.
The application to
review and set aside the condonation ruling of the second respondent
issued under case number GAJB610909, is
dismissed.
2.
There is no order as to
costs.
_________________
Naidoo
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES
FOR
THE APPLICANT:
Advocate B.C Zulu
FOR
THE FIRST RESPONDENT:
Mr N Mbuyisa of Maserumule Incorporated Attorneys.
[1]
66 of 1995 (LRA).
[2]
(1999) 3 BLLR 209 (LAC).
[3]
1962 (4) SA 531
(A).