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[2017] ZALCJHB 390
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Makhoba v Commission for Conciliation, Mediation and Arbitration and Others (JR1820/12) [2017] ZALCJHB 390 (25 October 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR 1820/12
In
the matter between:
NKOSANA
MAKHOBA
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
&
ARBITRATION
First
Respondent
B
KHUMALO
N.O.
Second
Respondent
ESKOM
HOLDINGS (SOC)
LTD
Third
Respondent
Heard:
12 July 2017
Delivered:
25 October 2017
Subject: Review
application in terms of rule 7A of the Labour Court Rules and
Section
145
of the
Labour Relations Act, 66 of 1995
, as amended.
Short note:
Review brought late without sufficient reason or basis. Failure by
applicant to file record timeously or deal
with the practice manual.
No prospects of success on review. Applications for condonation and
review dismissed with costs excluding
costs related to heads of
argument.
JUDGMENT
GOLDBERG
AJ
Preliminary
Issues
[1]
Prior to
setting out my judgment herein I pause to mention that the Court file
herein was not paginated in terms of the Practice
Manual of the
Labour Court.
[1]
A review
application is meant to be organised into three (3) separate bundles:
– pleadings, notices and record. Here the
Court file was
paginated from pages 1 to 324 whereas the only index on file went
from pages 1 to 202. The pagination was continuous
and went from
review onto condonation as if all the pleadings were part of the same
application. Some of the notices were just
loose in the Court file.
Introduction
[2]
The
applicant in his notice of motion
[2]
seeks in terms of
section 145
of the
Labour Relations Act
[3
]
,
as amended (the
LRA
)
to review and set aside the arbitration award handed down by the
second respondent on 16 May 2012 under the auspices of the Commission
for Conciliation Mediation and Arbitration (CCMA) brought under case
number GAJB 33614-11.
[4]
[3]
The
applicant also seeks condonation for the late filing of his review
application in that as set out by him, he did not bring same
within
the prescribed time.
[4]
Should the
review application be granted the applicant seeks that this Court
substitutes the two (2) main findings as per the arbitration
award
with an order that:
(1)
the third
respondent did commit an unfair labour practice against the applicant
by depriving him of his due benefit;
(2)
the third
respondent is to remunerate the applicant for the shortfall in
payment emanating from the sale of the applicant’s
property.
Pertinent
facts
Comment
:
Most of the facts in this matter are common cause and are captured in
the pre-arbitration minute.
[5]
This is one (1) matter
that could have been decided by way of a stated case. At arbitration,
only three (3) issues were disputed:
(1) was the relevant policy in
effect at the time the applicant sold his property; (2) was the
applicant aware of the policy or
should he have been aware; and, (3)
was the policy relevant to his situation.
[5]
The
applicant was employed by the third respondent on 01 May 2006 as the
Senior Advisor: Human Resources for Capital Expansion Department
(“CED”) projects in the CED of the Enterprises Division
based at Camden Power Station.
[6]
In
September 2008, the applicant was transferred from Camden to the
third respondent’s Head Office in Megawatt Park, Sunninghill,
Johannesburg due to operational requirements and / or the completion
of the project which he was working on.
[7]
The
applicant sold his property in Standerton prior to such transfer. The
applicant maintains that this was as a consequence of
the
transfer.
[6]
[8]
The Capital
Expansion Division had no properties department.
[9]
After
selling his house / property, the applicant sought to and did lodge a
claim to the third respondent for a shortfall amount
of R 90, 000. 00
(ninety thousand rand), alleging that he was forced to sell his
property as a consequence of the transfer and
that he sold it at a
price which was R 90, 000. 00 (ninety thousand rand) below its market
value.
[10]
The
applicant’s claim was rejected by the third respondent; such
rejection was on the basis that the applicant had not followed
the
correct / applicable procedures and further that the third respondent
was not obliged to pay an employee the shortfall; the
policy allowed
for a discretion.
[11]
The
applicant then referred an unfair labour practice dispute to the
first respondent, alleging that the third respondent had failed
to
pay him a benefit which was due to him.
[12]
Arbitration
was held on 04 May 2012 and the second respondent issued the
arbitration award on 16 May 2012.
[13]
The issue
which the second respondent had to determine was whether the third
respondent committed an unfair labour practice as contemplated
in
section 186
(2) (a) of the LRA..
[14]
The second
respondent in his award found that the non-payment of a shortfall to
an affected employee, from selling his property
below the market
value when all requisite policy provisions have been followed, falls
within the scope of
section 186
(2) (a) of the LRA and as such could
amount to an unfair labour practice. As such there is no need to
quote this section of the
LRA but the question that needed to be
decided was did it apply in the circumstances of the case? This is;
did the third respondent
commit an unfair labour practice?
[15]
Furthermore,
the second respondent found that to equate the unfair labour practice
to jurisdictions regarding benefits disputes,
with contractual and
statutory claims, seems to limit it unduly.
[16]
The most
salient part of the award
[7]
and
the part challenged by the applicant on review sets out: –
“
3. The respondent is neither
responsible for the shortfall payment emanating from the selling of
the applicant’s house nor
did the respondent commit an unfair
labour practice against the applicant in the instant case.”
[17]
The second
respondent in finding that the third respondent herein had not
committed an unfair labour practice ordered that the applicant’s
matter was dismissed.
Parties’
Arguments
Applicant’s
arguments
Condonation
[18]
The
applicant on review in seeking condonation for the late filing of his
review application sets out that the reasons for the delay
in the
filing of his review application are:
“
5.1 Due to my
attorneys’ availability I only managed to consult with him, and
supply him with all documents on 20 June 2012.
5.2 Further documents
was required by my attorney, and I was only able to get same at him
on 22 June 2012.
5.3 My attorney
thereafter was only able to arrange a consult with an advocate and
peruse all the necessary documents at that time.”
[8]
[19]
In respect
of prospects of success, the applicant sets out that the second
respondent considered irrelevant matters and came to
an unreasonable
decision.
[9]
He further sets out
that the “
Commissioner
lost sight of the fact that the Respondent relied upon a prescribed
procedure which was put into effect only after
my property was
sold
”
[10]
and as such the second respondent should have come to a finding that
the prescribed procedure was “
not
yet in effect at the material time.
”
[11]
[20]
In the
applicant’s heads of argument he sets out that the review was
filed about one (1) month late.
[12]
[21]
Further,
and in a separate application brought on 16 February 2016, the
applicant seeks condonation for the late filing of the reconstructed
record.
The
review
[22]
The
applicant seeks that the Court review and set aside the arbitration
award made by the second respondent.
[13]
[23]
In his
founding affidavit, the applicant at first, sets out general grounds
of review without any particularity. He then expands
on these grounds
and sets out that in the second respondent’s finding that he
should have followed the prescribed procedure
despite the prescribed
policy being dated with a date which was after he sold his property /
house that the second respondent “
erroneously
neglected to take cognisance of the fact that the alleged prescribed
procedure was not in effect in the Applicant’s
division at the
time he was forced to sell the property.
”
[14]
[24]
The other
grounds of review mentioned by the applicant relate to the accusation
that the second respondent failed to take cognisance
or appreciate
that the third respondent was meant to have advised its employees of
the policies (seemingly in writing) but it failed
to do so; that such
prescribed policy was only raised as a defence by the third
respondent belatedly after the applicant submitted
a grievance;
[15]
that the applicant was acting in accordance with his conditions of
service; that such defence (the need to follow the prescribed
procedures) was merely a technicality relied upon by the third
respondent in order to evade the duty to pay out the applicant’s
benefit. Because of the above, the applicant sets out that, the
findings made by the second respondent are not those a reasonable
decision maker could have come to in the circumstances; are
illogical; and are not connected to the overall assessment of the
evidence.
[16]
[25]
Originally
the applicant stood by his notice of motion; but then later he filed
a supplementary affidavit, in which, he sought leave
for the filing
thereof.
[17]
[26]
In his
supplementary affidavit, the applicant sought to supplement his
grounds of review and sets out that the second respondent
erred in
finding that the RPO2 form (the claim form used at the third
respondent to apply for a claim) ought to have been completed
at the
time of his transfer.
[18]
The
applicant sets out that the evidence in this regard was limited to
that which related to one Karin Haas, and to certain documents
contained in an annexure to the respondent’s arbitration bundle
and in particular the document marked as annexure “
H1
”.
[19]
[27]
The
applicant maintains that the second respondent further erred in
accepting the evidence of Karin Haas in this regard in that
the third
respondent had conceded that the Capital Expansion Division (where
the applicant was working) did not have a properties
division; that
in her case she (Karin Haas) was transferred to the Generation
Division which had a properties department / division
and thus her
(Karin Haas) transfer would be accommodated by the process which
involved the completion of an RP02 Form. The second
respondent failed
to appreciate that the form and the completion thereof was applicable
to her as she was being transferred to
a division which had a
properties department whereas he (the applicant) was not to be
transferred to a division that had a properties’
division. In
conclusion, the applicant reiterates that the RPO2 Form was not
required in his division at the time of his transfer
and was not a
requirement of his actual transfer.
[20]
[28]
The further
grounds of review raised by the applicant, in the alternative,
concern the issue of the calculation of the shortfall
and that the
arbitration award should have sought that the shortfall be
recalculated instead of finding that there was no case.
[21]
[29]
A further
ground of review raised by the applicant is that the second
respondent failed to consider that in failing to provide the
applicant with benefits due to him, the third respondent treated him
differently from others that obtained the benefit.
[22]
[30]
Costs were
sought against any party opposing.
[31]
The
applicant’s replying affidavit does not add to the issues and
is simply an affidavit full of denials.
[32]
The
applicant’s heads of argument set out
inter
alia
that the argument that the second respondent’s arbitration
award is not logically connected to the overall assessment of
the
evidence, submissions and documents placed before him and that when
looking at the totality of the evidence presented, the
findings of
the commissioner should have been that the third respondent had
committed an unfair labour practice by not paying the
applicant the
shortfall.
[23]
Third
respondent’s arguments
[33]
In its
answering affidavit the third respondent raises three (3) points
in
limine
.
Condonation
[34]
The third
respondent’s first point
in
limine
is that the applicant’s review application was filed one (1)
month late (late filing of the review application). The third
respondent sets out that on this basis that the Court should dismiss
the review application.
[24]
[35]
The third
respondent later in its papers sets outs that whilst the applicant
has applied for condonation for the late filing of
the review
application in this regard he has not made a proper case for
condonation.
[36]
The third
respondent challenges the reasons provided for seeking condonation
and sets out that the applicant’s condonation
application fails
to deal adequately with the factors required by the Court; that the
explanation provided by the applicant is
insufficient and as such
condonation should not be granted. The third respondent sets out that
the applicant has failed to explain
the period of delay between 22
June 2012 and 26 July 2012. The only explanation provided for this
period of over a month is that
the applicant’s attorney “…
was
only able to arrange a consultation with an advocate, and peruse all
the necessary documents at their time.”
The third respondent points out that the applicant fails to set out
what he was doing during such period to advance his matter.
Further
the third respondent sets out that an individual applicant cannot
simply sit by without regularly checking up on his matter.
[37]
In its
second point
in
limine,
the third respondent sets out that the applicant’s review has
not been processed properly (failure to take steps in the review
proceedings) and raises the point that in terms of the Practice
Manual of the Labour Court,t the matter is to be considered withdrawn
and
archived and as such, is not properly before the above Honourable
Court.
[25]
[38]
The third
respondent sets out that the applicant has not made out a proper case
for condonation of the late filing of the record
of proceedings;
[26]
that the applicant has no prospects of success on review
[27]
and that the applicant has not demonstrated to the Court that he has
grounds for review.
[39]
The third
respondent raises the further issue that the applicant has failed to
file a complete record within the prescribed time
limits both using
the commencement of the review application (July 2012) as a starting
point and then also subsequent to reconstruction
(failure to file a
complete record within the prescribed time limits, subsequent to
reconstruction) .
[28]
[40]
In respect
of the reconstruction of the record I had to ascertain the events
from what the third respondent sets out which was that
a
reconstruction meeting was held during November 2015 or December
2015. The parties signed the transcribed notes of the second
respondent
[29]
which were then
filed by the first respondent in terms of
rule 7A
(3) on or about 11
May 2016.
[41]
The third
respondent complains that a proper process of reconstruction should
have taken place and that because the grounds of review
raised by the
applicant are related to the record and as such that without the full
and complete record being placed before the
Court there cannot be a
“
full
and fair review
”
[30]
.
[42]
The third
respondent sets out that it was prejudiced in that the arbitration
bundles were not part of the record served upon it
initially and that
whilst the applicant set out that same were attached to his founding
affidavit, which was served upon the third
respondent, that this was
not the case and that it only received the transcribed records, much
later, on 31 January 2017.
[43]
Further
mention is made that originally the applicant stood by his notice of
motion and chose not to supplement but then later he
sought to
supplement his founding affidavit. Further the third respondent sets
out that initially it did not receive any compliance
with
rule 7A
(8)
and that same was only received in January 2017.
[44]
Further the
third respondent sets out that the applicant should have applied for
the Court file to be retrieved from archives, as
per the Practice
Manual of the Labour Court, which he has not done.
[31]
[45]
The third
respondent has opposed the applicant’s application for
condonation for the late filing of the record and raises
points
in
limine
concerning the issues of the deeming withdrawal provision as per
paragraph 11.2.2 of the Practice Manual of the Labour Court;
[32]
and, the issue of the incompleteness of the record.
[33]
Further it sets out that the explanation provided by the applicant in
this regard is insufficient and that the applicant has failed
to set
out the reasons for each period of delay.
The
review
[46]
The third
respondent sets out that the applicant’s “…
grounds
of review are inter alia, that the factual findings of the Second
Respondent did not correspond with the evidence and documents
placed
before the Second Respondent, and that he did not apply his mind
properly and rationally to the facts.
”
[34]
[47]
In respect
of the applicant’s review the third respondent sets out that
the second respondent’s finding was one that
any reasonable
commissioner in the second respondent’s position would have
reached in that he correctly found that the third
respondent did not
commit an unfair labour practice in the circumstances. In particular
the second respondent correctly found that
the relevant prescribed
procedure applied to the applicant.
[35]
It sets out that such procedure was already implemented in 2007 and
was used by a colleague of the applicant in August 2008. Further
the
third respondent sets out that the applicant was the custodian of the
third respondent’s policies in his capacity as
the HR Manager
and as such he should have been fully aware of such policy.
[48]
The third
respondent in support of the arbitration award argues that the
applicant should have applied timeously in terms of the
policy, that
the applicant only consulted after his claim was rejected;
[36]
that the applicant was meant to follow procedure;
[37]
and that it has a duty to treat all cases alike;
[38]
and further that the issue of whether or not the department that he
was transferred to had a property department or not is not
relevant
[39]
and that anyway
the third respondent’s policy was discretionary (and that this
issue was not challenged at arbitration)
[40]
.
[49]
The third
respondent seeks that the applicant’s review application should
be dismissed, with costs.
Analysis
[50]
The
applicant sets out that he received the arbitration award on 16 May
2012 and as such his review should have been lodged on 27
June 2012.
The review application is brought approximately one (1) month late.
[51]
On
condonation for the late filing of the review application, the
applicant sets out that he consulted with his attorney and that
his
attorney consulted or met with an advocate and then sought to lodge
his review. No proof of the reasons for such delay is provided.
[52]
The
applicant failed to serve his review on the company and instead he
sought to serve it on the attorneys that the company used
at
arbitration. No service affidavit is filed. In his founding
affidavit, the applicant does not mention this issue and only sets
out the third respondent’s physical address in the description
of the parties. There is no mention of attorneys and no mention
that
he has been given permission to serve on the third respondent’s
attorneys.
[53]
On
condonation for the late filing of the review application, the
applicant fails to set out how many days he is late. The explanation
provided for the delay of approximately one (1) month
[41]
is lacking in detail and fails to explain the time line adequately.
Only two (2) dates are mentioned; the date he manages to consult
with
his attorney and the date it seems that his attorney seemingly goes
to consult or meet with counsel.
[54]
The reason
provided by the applicant is simply that the attorney was unavailable
to consult with him until 20 June 2012 and that
further documentation
was obtained on 22 June 2012. There is no mention who this attorney
is, no mention as to whether he was the
only attorney at the firm, no
mention even as to what this “
further
documentation
”
is. Documentation was attached to the applicant’s founding
affidavit (which appears to be the arbitration bundles
or at least
the documents which made up such bundles; and, as set out such
documentation was not served together with the founding
affidavit
upon the third respondent) and perhaps this is what the applicant is
referring to?
[55]
The
applicant seemingly wants to blame the delay on his attorneys and /
or on counsel and their unavailability to attend to him
and / or his
matter. The applicant fails to set out why he specifically needed to
use this attorney. The applicant fails to set
out that he never knew
that he was late [indeed he seemingly admits that he knew he was
late] and / or why if he knew that he was
late why he used and
continued to use these attorneys where he should have known that he
had a limited period of time within which
to file the review
application and seemingly admits to having such knowledge. The
applicant fails to set out what he did to ensure
that his review
application was filed timeously. Further there is no confirmatory
affidavit by the attorney and / or the counsel
confirming the reasons
for the delay and indeed the attorney and the counsel are not
mentioned specifically by name.
[56]
On or about
05 December 2012 the applicant seemingly files a Notice in terms of
rule 7A
(6) containing what purports to be the record on review.
[42]
Why I say seemingly is that there is no Court stamp on the
rule 7A
(6). Why I use the word “
purports
”
is because the only part of the record that is filed in terms of such
Notice is a copy of the second respondent’s
handwritten notes
(untyped).
[57]
The
applicant initially filed a notice in terms of
rule 7A
(8) setting
out that he stood by his notice of motion
[43]
but later the applicant sought to file a supplementary affidavit in
terms of
rule 7A
(8) wherein he sought leave for the Court to
consider same. At Court, on the day of the hearing, the applicant
failed to seek leave
from the Court in this regard. As such his
supplementary affidavit is irregular; a party seeking to act as such
should specifically
apply both in its papers and in Court for such an
indulgence. The applicant’s supplementary affidavit should be
struck from
the record of pleadings. Despite this and in the interest
of finally disposing of this matter and because the third respondent
answers thereto I have taken the applicant’s supplementary
affidavit into account.
[58]
Following
on the timeline the parties next embarked on a reconstruction of the
record, the parties meet for a reconstruction hearing,
which
culminates with the second respondent typing out his notes, which are
signed by the parties and which are then filed at court
on or about
11 December 2015.
[44]
[This
reconstruction process takes about three (3) years]
[59]
On 11 May
2016 (five (5) months later) the first respondent files a “
Notice
of Further Compliance i.t.o. Rule 7A (3) of the Labour Court Rules
”
which contained “
(1)
Respondent’s Transcripts of the Commissioner’s
Handwritten Arbitration Notes (9 Pages) (2) Reconstruction of the
Case Record of an Arbitration Award (10 pages)
”.
[60]
In respect
of the late filing of the record on review, the Practice Manual of
the Labour Court reads as follows:
“
11.2.3 If the applicant fails
to file a record within the prescribed period, the applicant will be
deemed to have withdrawn the
application, unless the applicant has
during that period requested the respondent’s consent for an
extension of time and
consent has been given. If consent is refused,
the applicant may, on notice of motion supported by affidavit, apply
to the Judge
President in chambers for an extension of time. The
application must be accompanied by proof of service on all other
parties, and
answering and replying affidavits may be filed within
the time limits prescribed by Rule 7. The Judge President will then
allocate
the file to a judge for a ruling, to be made in chambers, on
any extension of time that the respondent should be afforded to file
the record.”
[61]
Based on
the above quoted passage, the applicant’s review application is
accordingly deemed to have been withdrawn in that
he failed to file
the record on review within sixty (60) days from the date he was
notified by the Registrar in terms rule 7A (5)
that the record had
been received by the Court and that it may be uplifted. Further the
applicant was meant to apply to reinstate
his review application but
he only seeks condonation in this regard. The reasons given for the
lateness here is set out as the
withdrawal of the applicant’s
previous attorneys and the mistaken belief by the applicant and the
applicant’s present
attorneys that the previous attorneys had
complied with rules 7A (6) and (8).
[62]
In
the Labour Court case between
Samuels
v Old Mutual Bank
[45]
Tlaletsi
DJP held the following with regard to the retrieval of a file from
archives:
“
[17]
In essence, an application for the retrieval of a file from the
archives is a form of an application
for condonation for failure to
comply with the Court Rules, timeframes and directives. Showing good
cause demands that the application
be bona fide; that the
Applicant provide a reasonable explanation which covers the entire
period of the default; and show
that he/she has reasonable prospects
of success in the main application, and lastly, that it is in the
interest of justice to grant
the order. It has to be noted that it is
not a requirement that the Applicant must deal fully with the merits
of the dispute to
establish reasonable prospects of success. It is
sufficient to set out facts which, if established would result in
his/her success.
In the end, the decision to grant or refuse
condonation is a discretion to be exercised by the court hearing the
application which
must be judiciously exercised.”
[63]
Whereas the
applicant sought to apply for condonation for the late filing of the
record in a separate application it is clear from
what is set out
above that he should have also sought to apply for the Court file to
be retrieved from archives and dealt specifically
with the issue of
good cause. It is my firm belief that without such an application and
without dealing with such issue that the
applicant’s review
application remains withdrawn. Further such application for
condonation is not paginated separately; same
comes belatedly, and no
condonation is sought for such further lateness (the late filing of
such application itself).
[64]
The
application for condonation for the late filing of the record only
seeks condonation for a delay of a period of five (5) months,
being
the period from the filing of the second rule 7A (3) until 11 August
2016; the applicant fails to seek condonation for the
entire period
of delay which is from the filing of the first rule 7A (3) by the
CCMA up until 11 August 2016, a period of over
five (5) years.
Similarly, the reasons provided for the lateness do not deal with the
five (5) months of delay for which condonation
is sought. The reasons
provided are accordingly wanting as is the application itself.
Further the applicant fails to deal properly
with prospects of
success, in such application, and just refers me to his founding
affidavit on review. It is trite that an application
for condonation
must stand on its own two (2) feet. Anyway, for the reasons set out
herein, I am of the opinion that the applicant’s
review
application has no prospects of success.
[65]
In respect
of the status of the record as filed; the third respondent sets out
that the record, even though reconstructed, is incomplete
and that
the Court should have been provided with a more complete record. It
further sets out that the missing parts of the record
are material. I
cannot say what exactly is missing from the record but it does appear
to be a large portion. The typed version
of the second respondent’s
notes are no substitute for the actual record, and it is evident that
in order to provide the
Court with the most complete record possible
a better reconstruction process should have been done. The third
respondent blames
the applicant for such failure but it fails to set
out why it then signed the reconstructed transcribed notes of the
second respondent,
seemingly agreeing that this could and should be
used as the record of the arbitration proceedings going forward.
Further the third
respondent took no steps to provide the Court with
a more complete record.
[66]
Despite the
record being incomplete I believe that the review application can
still be decided based on the arbitration award, the
common cause
issues, the typed notes and the affidavits filed. The only problem I
have in deciding the review, and as is pointed
out by the third
respondent, is that most of the grounds of review relate to the
allegation that the second respondent failed to
come to a reasonable
finding or outcome based on the evidence that was placed before him.
As I have no proper record of what was
set out at arbitration before
me, and the transcribed notes of the second respondent are no
substitute therefore, these grounds
of review cannot be truly
assessed. If these grounds did have a basis I would have struck them
from the pleadings in that I was
unable to assess them. But as
explained below these grounds have no basis so it is not necessary to
strike them.
[67]
When I was
given the Court file in preparation for the hearing of the matter on
12 July 2017 the pleadings and papers contained
therein were not
organised, indexed or paginated appropriately and the index on review
only went as far as the applicant’s
supplementary affidavit.
Had the Court file been properly indexed and paginated this would
have allowed me to read the Court file
easier and reach a judgment
much more timeously. The applicant has caused a further delay in this
regard.
[68]
The parties
were requested by the Court to file heads of argument on 11 February
2017 by means of telefax. The applicant’s
heads were only filed
on 07 July 2017 despite them being dated 06 February 2017. The third
respondent filed its heads of argument
and its practice note on 07
July 2017. The applicant failed to file a practice note.
Prospects
of success on review / grounds of review
[69]
The
applicant’s review concerns the allegation that the third
respondent deprived him of his due benefit. The simple question
to be
answered is was the benefit due?
[70]
The
applicant alleges that due to him being transferred to Campden, he
was forced to sell his property / house in Standerton.
[46]
There is simply no basis to this allegation. The applicant could have
chosen not to sell his house / property; he could have sold
it for
more; he could have bought a cheaper property; he could have rented;
there was no immediate pressure placed on him by the
third respondent
to sell his property. The “
debt
”
that he incurred was self-acquired.
[47]
While there was the issue of the transfer to head office (and from
there he was to be sent to his new assignment) there was no
pressure
placed upon him to sell and the transfer was not the
sine
qua non
reason which caused him to sell his property, and more so to sell it
at a loss or below the market value. The manager, Peter Mashatola,
specifically set out to the applicant (and as admitted by him) that
the third respondent “
cannot
use the valuated property price differences as the basis of
calculating a loss because the property market is like that,
people
buy (sic) and sell their houses everyday below valuated price based
on the property market movement at the time.
”
[48]
The manager never changed “
the
process to be followed and the basis on which Eskom paid the benefits
that were due to employees
”
[49]
as alleged by the applicant.
[71]
Further no
legitimate expectation was created by the third respondent that it
would pay the applicant for the shortfall. The meeting
between the
applicant and the two (2) managers of the third respondent that took
place was not a formal meeting whereat anything
was promised and / or
whereat a legitimate expectation could have arisen.
[50]
Even if a legitimate expectation had somehow arisen this did not
change the situation; this was in that the applicant would have
still
needed to have completed the policy document before the sale to allow
for the third respondent to assess the situation and
the terms of the
sale prior to the sale of the property.
[72]
Further the
benefit that the applicant claimed was not a guaranteed /obligatory
or due benefit. The Company’s policy sets
out that it
may
reimburse the employee
[51]
where he is
forced
to sell his property / house due to a transfer.
[73]
In order to
have claimed the benefit from the third respondent it is clear that
an employee faced with a transfer must follow the
policy document and
complete the required forms before the sale of the property. The
applicant failed to even complete the prescribed
form – Form
RP02. The third respondent was to be notified of the situation and
its property division had to agree that the
property should be sold;
next the property needed to be evaluated in terms of the policy by
agents appointed by the third respondent;
the applicant could not
appoint his own valuator and evaluate his own property.
[52]
These requirements needed to be fulfilled.
[53]
[74]
The
applicant claims that he never knew the policy and / or that it was
not in effect at the time. An employee in the applicant’s
position as custodian of the HR policies should have known of the
policy document and the need to complete same.
[54]
Even if he truly did not know of the policy document then it can be
said that he should have known of it and / or could have easily
found
out what needed to be done.
[75]
What the
true situation appears to have been was that the applicant found out
about the policy only after he sold his property /
house and then
that he tried to take advantage thereof by belatedly submitting a
claim. As such at the time the applicant sold
his property / house he
was willing to “
take
a knock
”
of R90, 000. 00 (ninety thousand Rand) but then he sought to correct
this when he realised that the third respondent had
a policy that
could cover for such a situation.
[76]
The further
issues raised by the applicant are that there was no property
division in his department (this was common cause at arbitration)
and
further that the policy only came into effect after he sold his
property / house.
[77]
The
applicant correctly does not challenge the finding of the arbitrator
that the claim made in respect of a set policy fell within
the
prescript of an unfair labour practice.
[78]
The main
thing that prevented the applicant from claiming was that he failed
to timeously or otherwise follow policy and / or procedure
and thus
no legitimate expectation that he could claim the shortfall amount
arose.
[79]
Even if the
applicant had followed the policy, the third respondent could have
still denied his claim. This is seen in that the
policy uses the word
“
may
”.
[55]
The third respondent would have obviously needed to have sound
reasons for such rejection but this case does not get that far.
[80]
The
applicant never completed the prescribed form at the time he sold his
property (it should have been actually completed prior
to the sale)
and as such he was not even entitled to claim in terms of the policy.
It was only after the applicant sold his property
/ house that he
sought to claim. The applicant in claiming belatedly knew that he was
taking a chance.
[81]
The grounds
of review raised by the applicant are merely queries as to why the
second respondent decided the matter the way he did.
In my synopsis
above I have explained the reasoning of the second respondent which
was reasonable and logical.
[82]
The further
ground raised by the applicant in his heads of argument, that is that
the third respondent should not have treated him
differently, cannot
be considered in that a party must raise its grounds of review in its
founding papers on review. I although
note that this ground of review
stands in stark contrast to the applicant’s other grounds where
he seeks to show that he
should have been treated differently in that
his case was different to that of Ms. Karin Haas and in particular,
that the policy
was not applicable to him or his department.
[56]
What this shows is that the applicant himself, is not sure of his
case on review. The applicant as such should have done his homework
and perhaps took the advice of the advocate which his attorney
consulted with, which, in all probability, was that the arbitration
award, while not being in his favour, is fair and reasonable.
[83]
In respect
of the ground of review raised that the commissioner miscalculated
the amount or did not know how to calculate the amount
that was due
to the applicant for this ground to have any basis I would first have
to find that the third respondent committed
an unfair labour
practice, which I do not.
Findings
and other issues on review
[84]
The
applicant has no prospects of success herein and his reasons for the
lateness of the filing of his review are simplistic and
insufficient
to allow me to grant condonation anyway. The applicant tries to shift
the blame to his representatives. The applicant’s
review is
without a shred of doubt the poorest review that I have encountered.
It has no merit whatsoever. There is no legal point
that seeks to be
decided and the applicant’s review seems to be one of Aesop’s
Fables, either the story of the Sour
Grapes or the Boy who cried
Wolf, I am not sure.
[85]
The
applicant has further failed to process his review diligently and as
such his review is deemed to have been withdrawn as per
the Practice
Manual of the Labour Court. The Courts have set out that the Practice
Manual is “
not
a mere guideline to be adhered to or ignored by parties at (their
own) convenience
”.
[57]
[86]
The
applicant has failed to deal with the issue raised by the third
respondent via its second point
in
limine
that is that his review should be considered to have lapsed in terms
of the Practice Manual of the Labour Court. As such even if
the
applicant’s review had merit I would first have needed to have
been presented by the applicant with an application for
the file to
be removed from archives, wherein the issue of good cause would need
to be dealt with. The applicant has not even bothered
to apply for
its review application to be “
removed
from the archive.
”
[87]
The
applicant’s review is without merit, there are zero prospects
of success on review.
[88]
The third
respondent in its heads of argument sets out that because the
applicant’s explanation for the delay in bringing
its review
application is not reasonable or acceptable that I need not consider
its prospects of success.
[58]
Here the applicant’s explanation (as set out in his application
for condonation) falls short of what is necessary for a party
seeking
an extension or indulgence needs to set out. Further to blame one’s
attorneys, where one fails to act cannot be an
adequate or sufficient
reason for delay
[59]
As such
while the delay might not be lengthy the explanation is poor and as
such there is no real need for me to consider the prospects
of
success. Despite this I have done so to ensure that this matter stops
here.
[89]
In respect
of the late filing of the record the applicant yet again failed to
follow the rules / the Practice Manual time limits
at all. For an
applicant on review to take four (4) years to file a record and not
to ever during such period of delay seek an
indulgence from the other
side or to even advise the other side on a regular basis as to the
status of the record or seek its approval
of same cannot be condoned.
The applicant as the
dominus
litus
on review had a duty to properly reconstruct the record and to
deliver an agreed reconstructed record within a reasonable period
of
time or where this was not possible he needed to approach the Judge
President in terms of the Practice Manual where the third
respondent
would not give it an extension or agree to the record.
[60]
None of this was done; the applicant, it seems, failed to approach
the third respondent in any respects concerning the issue of
the
record having gone missing. Such a delay is inordinate and shows
protracted delay in the prosecution of the review.
[61]
The delay can be said to be “
wholly
excessive
”
[62]
.
[90]
Further as
set out above the rule 7A (6) that was contained in the Court file
was not having a Court stamp thereon. No explanation
for this was
provided for this in the pleadings or at Court when the matter was
argued before me and I can only conclude that there
was as such no
Notice filed in terms of rule 7A (6).
[91]
Further
when the record as filed is supplemented by the applicant with the
typed version of the second respondent’s notes
the applicant
fails to file a second or further Notice in terms of rule 7A (6). As
such we have no filed Notice. While this could
be sought to be
resolved the issue remains.
[92]
The third
respondent is not without blame in respect of the delay/s in the
filing of the record in that it seemingly did not involve
itself
properly in the reconstruction or seek to try to speed up the
process. Further it did not seek to bring an application to
dismiss
the applicant’s review. It did although set out in its
answering papers on review in the form of a point
in
limine
that the applicant had failed to take the (necessary) steps in the
review proceedings and further that due to the applicant’s
failures in respect of the filing of a complete record timeously that
I should strike the review from the roll. I do not believe
I can
strike a review application on such basis, anyway it matters not.
[93]
It seemed
at least at some time prior to the filing by the applicant of the
typed version of the second respondent’s notes
as if the third
respondent thought the applicant’s review was not being pursued
and had fallen away and as such it did not
act. But I only mention
this in that the applicant never raised this issue and as alerted to
above the applicant as the
dominus
litus
he had the duty to provide to the Court the most complete version of
the record and to do so within the time limits set out in
the
Practice Manual of the Labour Court. As such the only party who
should be seen to be to blame for the delays herein should
be the
applicant and as set out he has failed to explain such delays
properly and / or at all.
[94]
Further the
applicant failed to apply for the review to be removed from the
archive. Even if he had, this would not have aided his
case on
review, which as said, has no prospects of success. The record that
was provided to the Court was incomplete as far as
the transcript of
the record of arbitration proceedings which amounted to a typed
version of the second respondent’s notes
with no attempt to use
same together with other sources (which would include the arbitration
award) to provide the Court with a
clear and easy to read transcript.
Indeed, it seems that neither party referred to the transcribed notes
in their respective pleadings.
[95]
The
applicant’s review as presented to the Court after so many
years appears to be one where the applicant in particular showed
no
interest for lengthy periods of time and where the substance and
grounds raised border on frivolity.
[96]
Due to all
the above reasons and in particular the applicant’s lack of
prospects of success on review and the poor state of
the applicant’s
review itself, I have no hesitation in dismissing the applicant’s
review and in awarding costs against
the applicant.
[97]
If the
third respondent had acted timeously to file its heads of argument, I
would have granted it costs in this regard as well.
[98]
Should the
third respondent have sought punitive costs I would have been at
pains not to grant it same.
[99]
In the
premise, the following order is made:
Order
1.
The
applicant’s applications for condonation for the late filing of
its review and the late filing of the record on review
are both
dismissed.
2.
The
applicant’s review application is dismissed.
3.
The third
respondent is entitled to the costs of all applications [the review
application (including all notices) and the condonation
applications]
but it is not entitled to the costs of the drafting and / or perusing
and / or delivery of either party’s heads
of argument.
4.
The
applicant is to pay the costs of the third respondent’s
practice note and the delivery thereof on the scale of
attorney-own-client.
_____________________
A
Goldberg
Acting
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: M
Lefoka
Instructed
by: CHSM Incorporated Attorneys
For
the Third Respondent: A Patel of Cliffe Dekker Hofmeyer Inc
[1]
Effective 02 April 2013. See para
11.2.8 of the practice Manual of the Labour Court.
[2]
In his heads of argument, the
applicant sets out that the Notice of Motion has been amended but I
could not find any amendment;
there was anyway no notice of
intention to amend filed.
[3]
, Act 66 of 1995
[4]
The arbitration award is at pages 16
– 22 of the review pleadings.
[5]
The pre-arbitration minute is at
pleadings pp22 – 25 and the common cause facts are at p23 of
such bundle.
[6]
The parties do not specifically set
out whether the sale of the house came first or the transfer and I
assume for purposes of
this Judgment that the applicant was advised
of the transfer prior to selling his property (this being to the
applicant’s
favour).
[7]
The arbitration award is at pleadings
pp16 – 21. This finding is at pleadings p20 = Award p5/6.
[8]
Pleadings p10 par 5 (founding
affidavit).
[9]
Pleadings p11 par 6.2 (founding
affidavit).
[10]
Pleadings p11 par 6.3 (founding
affidavit).
[11]
Pleadings p11 par 6.4 (founding
affidavit).
[12]
Applicant’s heads of argument
p12 para 22.
[13]
Pleadings p2 par 2 (notice of
motion).
[14]
Pleadings p13 para’s 11.1 and
11.2 (founding affidavit).
[15]
The grievance was only raised on 07
September 2011 whereas the disapproval of the motivation was in
November 2010.
[16]
Pleadings p13 para’s 11.3 –
11.10 (founding affidavit).
[17]
Pleadings p189 para 6 (notice in
terms of rule 7(8) (a).
[18]
Pleadings p194 para 2.2.1
(supplementary affidavit).
[19]
Pleadings p194 para’s 1 –
2 (supplementary affidavit) – for the document see pleadings
pp55 – 63 and in
particular p58 par H. The evidence of the
Karin Haas issue is not contained in the record.
[20]
Pleadings pp195 - 196 para’s
2.2 – 2.2.6 (
sic
)
(supplementary affidavit).
[21]
Pleadings p197 para 3 (supplementary
affidavit).
[22]
This ground is seemingly raised by
the applicant for the first time in the applicant’s heads of
argument. I cannot take
cognisance of new issues or evidence raised
in heads of argument - See the case of
Comtech
(Pty) Ltd v Commissioner Shaun Molony N.O and Others
(DA 12/05) [LAC Durban 21 December 2007] at para 13 – 16.
[23]
I repeat that I cannot take
cognisance of new issues or evidence raised in heads of argument -
See the case of
Comtech
as per ft. 20.
[24]
The issue of the late filing of the
review application is raised as a point
in
limine
by the third
respondent – see pleadings p233 para’s 12 – 15.
[25]
The issue of the failure by the
applicant to process his review is raised as a point
in
limine
by the third
respondent – see pleadings pp234 – 236 paras 16 –
30.
[26]
See pleadings p243 para’s 69 –
71 (answering affidavit). This is further elaborated on – the
third respondent
sets out that the applicant has failed to take the
matter seriously from the outset and has unnecessarily delayed the
matter
– See Pleadings p245 para 80 (answering affidavit).
[27]
See pleadings p243 para’s 72 –
77 (answering affidavit).
[28]
The issue of the failure to file a
complete record is raised as a point
in
limine
by the third
respondent – see pleadings pp236 – para’s 12 –
15 (answering affidavit).
[29]
The parties signed the transcribed
notes on 11 December 2015 – see transcribed notes at pleadings
pp170 – 188.
[30]
See pleadings p240 para’s 48 –
51 (answering affidavit).
[31]
See pleadings p238 para 39 (answering
affidavit).
[32]
See pleadings p314 para’s 6 –
8 (answering affidavit on condonation).
[33]
See pleadings p317 para’s 23 –
25 (answering affidavit on condonation).
[34]
See pleadings p240 para 50 (answering
affidavit).
[35]
See pleadings pp243 – 244 para
73 (answering affidavit).
[36]
See pleadings p247 para 97 (answering
affidavit).
[37]
See pleadings p247 para 98 (answering
affidavit).
[38]
See pleadings p249 para 118
(answering affidavit).
[39]
See pleadings p249 para 117
(answering affidavit).
[40]
See pleadings p250 para’s 126 –
129 (answering affidavit).
[41]
In the applicant’s heads of
argument, he sets out that the review was filed one (1) month late –
applicant’s
heads of argument p12 par 22.
[42]
The notice is dated 29 November 2012
but is only filed on 05 December 2012. There is service on the third
respondent by hand on
05 December 2012.
[43]
This notice was not in the Court file
but is mentioned by both parties.
[44]
Pleadings pp170 – 188.
[45]
(DA30/15)
[2017] ZALAC 10.
[46]
See pleadings p171 (transcribed
notes). This is what was put to him at arbitration in cross
examination – see pleadings
p174 paragraph 6 (transcribed
notes). The third respondent never required that he purchase a house
in Campden to facilitate the
transfer. In cross-examination it was
put to him that he could have rented (while waiting to sell his
house at a better price)
and according to the record the applicant
conceded this.
[47]
In evidence the applicant conceded
that the decision to sell his house was his own – see
pleadings p175 paragraph 1 (transcribed
notes).
[48]
See pleadings pp173 – 174
(transcribed notes).
[49]
See pleadings p174 paragraph
1(transcribed notes).
[50]
See pleadings p176 paragraph
1(transcribed notes) where it is noted that the applicant conceded
that such meeting was informal.
[51]
See paragraph 7.1.5 H on pleadings
page 58. Also see pleadings p175 paragraph 3 (transcribed notes)
where this is conceded by
the applicant who sets out that this is
“
semantics
”.
[52]
See pleadings p176 paragraph 1
(transcribed notes). The evaluation was done in February 2010. He
conceded that he did not consult
the third respondent at the time.
[53]
This was conceded by the applicant at
arbitration – See pleadings p175 paragraph 6 (transcribed
notes). The applicant needed
to approach the third respondent at the
time he intended to sell and to complete all the required
documentation at such time
to allow for the third respondent to
evaluate the property and even then there is a discretion as to
whether the third respondent
was to reimburse the employee.
[54]
See pleadings p177 paragraph 3
(transcribed notes).
[55]
See paragraph 7.1.5 H on pleadings
p58 of the policy document.
[56]
The issue of Karin Haas is seemingly
not part of the arbitration record.
[57]
See
MJRM
Transport Services CC v CCMA and Others (2017) 38 ILJ 414 (LC)
which dealt specifically with this issue. In this regard also see
the case of
Edcon (Pty)
Limited v Commission for Conciliation, Mediation and Arbitration and
Others; In re: Thulare and Others v Edcon (Pty)
Limited (JR698/2013;
J271/2015) [2015] ZALCJHB 392; (2016) 37 ILJ 434 (LC) (13 November
2015)
.
[58]
See the cases of
MJRM
Transport Services CC v CCMA & Others (2017) 38 ILJ 414 (LC)
which dealt specifically with this issue. Also see the case of
Collett v CCMA & Others
(2014) 35 ILJ 1948 (LAC)
,
at para’s 38 – 39; and
Dichabe
v Department of Local Government and Housing (North West) and
Another (JR 663/05) 2012 ZALC JHB (20 April 2012)
are cited by the third respondent in this regard.
[59]
See the case of
Superb
Meat Supplies CC v Maritz (2004) 25 ILJ 96 (KAC)
at para 16.
[60]
See the case of
Toyota
SA Motors (Pty) Ltd v CCMA and Others
[2015] ZACC 40
at para 45 where the Constitutional Court remarked that Toyota ought
to have applied to the Labour Court to condone (in terms
of rule 12
(3)) non-compliance with the period prescribed in the Labour Court
Rules.
[61]
Ibid
at para’s 18 – 35, where Constitutional Court referred
with approval to the various findings and remarks of the Labour
Court in respect of the delay and found that Toyota’s failure
to file the record led to a protracted delay in the prosecution
of
the review despite Toyota ’s various steps to reconstruct the
record and that this was against the purpose of the LRA
which inter
alia advocates a “
simple,
quick, cheap and informal approach to the adjudication of disputes
.
These disputes by their very nature require speedy resolution. Any
delay in resolving a labour dispute could be detrimental
not only to
the workers who may be without a source of income pending the
resolution of the dispute, but it may, in the long
run, have a
detrimental effect on an employer who may have to reinstate workers
after a number of years….” Also,
see
Chirwa
v Transnet Ltd and Others
[2007] ZACC 23
; 2008 (4) 367 (CC)
[2007] ZACC 23
; ;
2008
(3) BCLR 251
(CC)
. Also
see the Reportable Judgment of
Nehawu
obo Tebatso Johanna Leduka and National Research Foundation (JS
1041/2010)
Delivered 18
November 2016.
[62]
Ibid
at para 36.