About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2017
>>
[2017] ZALCCT 25
|
|
Ahmed v Commission for Conciliation, Mediation and Arbitration and Others (C1026/15) [2017] ZALCCT 25 (6 June 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
no: C 1026/15
In
the matter between:
YASMIN
BIBI MAHOMED ABDUL AHMED
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
COMMISSIONER
ORLANDO MOSES N.O
Second Respondent
WOOLWORTHS (PTY) LTD
Third Respondent
Heard:
1 June 2016
Delivered:
06 June 2017
JUDGMENT
TLHOTLHALEMAJE,
J.
Introduction:
[1]
The Applicant seeks an order reviewing and setting aside a ruling
issued by the Second Respondent
(Commissioner) under case number
WECT714830-15 dated 26 October 2015, in terms of which her
application for condonation for the
late referral of a dispute to the
First Respondent (CCMA) was dismissed. The Third Respondent
(Woolworths) opposed the application.
Background:
[2]
The Applicant commenced her employment with Woolworths in June 2010.
At the time of the
termination of the employment relationship on 24
August 2015, she was employed as Facilities Manager. She was
suspended from duty
on 26 May 2015, and a disciplinary enquiry was
held on 25 June 2016 in respect of allegations of misconduct levelled
against her.
[3]
At the conclusion of the disciplinary enquiry and prior to issuing a
sanction, the chairperson
of the enquiry had given the Applicant an
option of either a dismissal or early retirement. It was common cause
that she had opted
for early retirement on 24 August 2015. Her last
day at work was 31 August 2015.
[4]
On 1 October 2015, the Applicant despite having made her election
then referred a dispute
to the CCMA, claiming unfair dismissal,
‘unfair labour practice’, ‘severance pay’,
and ‘unfair suspension’.
In the LRA Form 7.11 referral,
she also alleged that her suspension was procedurally unfair, and
that the dispute arose on 25 May
2015. She also alleged that her
dismissal on 31 August 2015 was procedurally and substantively unfair
on a variety of grounds.
[5]
Woolworths had objected to the con/arb proceedings as set down on 16
October 2015. At the
commencement of the conciliation process
however, the Commissioner had indicated to the parties that the
referral was lodged one
day out of time. Attached to the Applicant’s
referral form was an application for condonation, which Woolworths
had contended
it had not received. The Commissioner had nevertheless
proceeded to hear the application, and had also afforded the parties
an
opportunity to make oral submissions in respect of the
application.
The
grounds of review and evaluation:
[6]
Amongst the grounds of review raised on behalf of the Applicant in
these review proceedings
was that to the extent that the Commissioner
had raised the issue of condonation at the commencement of the
conciliation proceedings,
he should have postponed the matter and
afforded the Applicant an opportunity to get legal representation.
[7]
The submissions raised in regard to whether the Commissioner should
have postponed the proceedings
simply to afford the Applicant an
opportunity to secure legal representation are without merit,
particularly since Woolworths was
also not legally represented.
Furthermore, it is not the Commissioner that had raised the issue of
condonation as there was already
an application before him. A
commissioner cannot simply postpone
in limine
proceedings to
allow parties to secure legal representation as the provisions of
Rule 31 (10) of the CCMA Rules enjoins that Commissioner
to determine
such applications in any manner that it is deemed fit, provided that
the parties are informed of how the process will
be conducted and are
given an opportunity to be heard.
[8]
In my view, and as can be gleaned from the record of proceedings, the
Commissioner in this
case not only had regard to the written
application, but also painstakingly explained and guided the parties
through the approach
and process and afforded them an opportunity to
substantiate their respective cases in regard to that application.
[9]
The principles applicable in
applications for condonation as articulated in
Melane
v Santam Insurance Co. Ltd
[1]
are well-stablished. I am satisfied from the reading of the award
that the Commissioner was well-aware of these principles, and
had in
the course of the proceedings and the ruling itself, applied them
accordingly to the facts as they were before him.
[10]
In regard to the lateness of the referral, the Commissioner accepted
that the employment
relationship was terminated on 31 August 2015,
and that the referral was only one day late. He accepted that the
delay was ‘
not a long period and favours granting
condonation’
.
[11]
The Applicant however takes issue with regards to the Commissioner’s
analysis and
reasoning in respect of the explanation proffered for
the delay. In her application, the Applicant had attributed the delay
to
her ill-health, which she contended was precipitated by her
suspension. She further alleged that she was seen by a Psychiatrist
and was booked off for a month. She was also seen by a Clinical
Psychologist.
[12]
During the condonation hearing proceedings, the Applicant upon being
asked by the Commissioner
for further submissions had repeated her
contention that she was not well after the ‘dismissal’
and had to get medical
treatment. She had further submitted that she
was not sure about the dispute having to be referred within 30 days
from her dismissal.
[13]
The Commissioner had regard to the reasons proffered by the Applicant
in respect of the
delay and Woolworths’ responses thereto, and
concluded that they were not acceptable. The basis of his conclusions
was that
the Applicant had not supported her contentions that she was
ill, and had accepted that she was aware that she could refer her
dispute within 30 days.
[14]
The Commissioner further took into account that the application for
condonation was filed
on 30 September 2015 (the last day of the
30-day
dies
), and that there was no explanation as to the
reason the referral could not have been submitted on the same day. He
found that
the delay ultimately was as a consequence of the
Applicant’s negligence. It was submitted on behalf of the
Applicant that
the conclusion by the Commissioner that she was
negligent had no basis, in that as a result of her ill-health, she
was unable to
submit the referral on time.
[15]
It is trite that an applicant seeking condonation must give a full
account of the delay
in question. In this case, even though the
referral was one day late, and clearly insignificant, at the very
least, it was required
of the Applicant to satisfy the Commissioner
that there was a reasonable and/or acceptable explanation for the
delay. I agree with
the submissions made on behalf of the Applicant
that there was no basis for the Commissioner to conclude that the
Applicant was
negligent purely based on the fact that she was able to
submit her condonation application within the thirty days whilst she
could
not so in respect of the referral.
[16]
The Commissioner’s findings however that the Applicant was
fully aware that she ought
to have referred the dispute within 30
days can nevertheless not be faulted, as it is apparent from the
letter that she had signed
confirming the acceptance of her early
retirement that she was advised that could refer a dispute (in the
event of a dismissal)
within the said time frames. Even if in my view
the Commissioner had found the explanation not to be reasonable, in
the light of
the insignificant delay, this factor on its own was not
central to the dismissal of the application, and even if it did, this
can
hardly lead to a conclusion that the ruling as a whole is
reviewable in the light of other factors to be considered below.
[17]
In regard to her prospects of success, the Applicant had in her
application, averred that
she was not given an opportunity to
cross-examine the employer’s witnesses; that her suspension was
procedurally unfair as
it took the employer one month to advise her
of the charges; and that the charges were broad and vague. The
Applicant had also
submitted during the hearing of the condonation
application that she was only given two days to prepare for the
enquiry and was
unable to properly prepare for it. She had further
contended that she was forced into early retirement, and was
accordingly disadvantaged,
as she was deprived of other benefits and
an opportunity to earn a further salary for the years she could have
still worked.
[18]
As is apparent from the record of proceedings, Woolworths had refuted
the Applicant’s
allegations and contended that;
a) in terms of its
disciplinary code and procedure, employees were given 48 hours’
notice of the enquiry,
and the Applicant therefore had sufficient
time to prepare;
b) the
Applicant was advised of the charges against her and her rights when
the notice of suspension was
issued;
c) the enquiry was
at some point postponed as the Applicant was ill.
d) the applicant was
afforded an opportunity to call her witnesses and cross-examine the
employer’s witnesses
during the disciplinary enquiry, and at no
stage had she indicated that she did not understand the charges
against her.
e) The Applicant was
charged with various offences pertaining to dishonesty, bringing the
company’s name
into disrepute, and breach of trust, which
were dismissible;
f) chairperson
of the enquiry had afforded the Applicant a choice between a
dismissal and early retirement
after taking into account the
mitigating and aggravating circumstances, and her age (the Applicant
was 57 at the time);
g) the Applicant
made her choice of early retirement after the chairperson of the
enquiry had also afforded her
an opportunity to reflect and consult
on the choices to be made;
h) prior to making a
choice, the Applicant had consulted with the HR department, other
people and her attorney.
She was therefore not forced into early
retirement nor was she dismissed
[19]
The Commissioner having had regard to the above concluded that the
Applicant’s prospects
of success were poor on the basis that;
a) The Applicant
confirmed that she was given an option of early retirement or a
dismissal;
b) She had confirmed
that she had consulted various parties prior to accepting early
retirement rather than a
dismissal;
c) She was a senior
employee, not unsophisticated, and could not have made life altering
decision without taking
into account all relevant factors;
d) On her own
account, she was not dismissed, and the possibility of her
establishing a dismissal was poor
[20]
It needs to be pointed out that upon serving her Rule 7A (8) Notice
on 17 February 2016,
the applicant had also indicated that she stood
by her notice of motion. She had nonetheless on 04 April 2016 filed
her replying
affidavit, and also sought condonation for its late
filing.
[21]
The grounds upon which condonation was sought for the late
filing of the replying
affidavit was that Counsel for the Applicant
was not available between 29 February and 11 March 2016 due to other
work commitments,
and also that she (Applicant) travelled to Mecca
between 15 March 2016 and 30 March 2016, and was only able to see her
Counsel
on 31 March 2016.
[22]
I am prepared to accept the
second part of the explanation for the delay whilst I deem the first
one to be wholly unsatisfactory.
A delay in complying with the time
frames set in regard to pleadings cannot be justified on the basis
that Counsel was busy with
other work. The Applicant nonetheless
relied on the provisions of clause 11.4.2 of this Court’s
Practice Manual
[2]
in contending that the Replying Affidavit should be allowed despite
being filed out of time.
[23]
As per annexure ‘YBM E2’ to the Replying Affidavit,
Woolworths had upon the
Applicant’s request, refused to grant
her an extension to file her Replying Affidavit out of time.
Woolworths had however
not filed a Notice of Objection as envisaged
in clause 11.4.2 of the Practice Manual, and to this end, I am
prepared to allow the
late filing of the Replying Affidavit.
[24]
Coming back to the reasoning of the Commissioner in regards to the
Applicant’s prospects
of success, it is further common cause
that the options given to the Applicant followed upon full process of
a disciplinary enquiry,
and the chairperson of the enquiry had
indicated that the penalty in the light of the all the evidence was
that of a dismissal.
[25]
To the extent that it was common cause that the Applicant had elected
early retirement
rather than being dismissed, it was not necessary
for the Commissioner to consider the issue of the charges in
determining her
prospects of success. The Applicant in any event
conceded in her Replying Affidavit that any averments in her founding
affidavit
in regards to these charges were not issues placed before
the Commissioner at the hearing. In this regard therefore, not much
weight
can be attached to them. To this end, it was therefore
reasonable for the Commissioner in the context of a determination of
prospect
of success, to merely consider whether the Applicant would
have been in a position to establish the existence of a dismissal.
[26]
The conclusions reached by the Commissioner that the Applicant on her
own version was not
dismissed, and that the possibility of her
establishing the existence of a dismissal were poor are conclusions
that fall within
a band of reasonableness. This is so in that if
indeed it was the Applicant’s case that she was coerced into
the option of
early retirement, the hurdles she would have faced
proving that fact, or her contention that she was dismissed would
have been
insurmountable.
[27]
First, amongst the reasons she gave in her affidavit for making the
election in question
was that she did not want a dismissal on her CV
in the light of her status in the industry. If indeed she was of the
view that
she was treated unfairly, and that the charges against her
were spurious, nothing prevented her from telling the chairperson to
dismiss her, and then refer a dispute to the CCMA
[28]
Second, and as further alluded to by the Commissioner, the Applicant,
despite her contentions
that she was not given sufficient time to
reflect on the options given to her, had also conceded that she had
made her election
after consultations with the HR and her attorneys.
There can therefore be no basis for a conclusion that she had not
properly
reflected on the choices to be made.
[29]
It is accepted that there may be instances where an employee in the
face of serious charges
and prior to a full disciplinary hearing, is
given an option of early retirement or some other form of mutual
termination of the
employment relationship, or be told that he or she
was to be dismissed. It is accepted that in some of these instances,
there may
be cause to believe that an employee was coerced into
making uninformed choices, and thus there may be a basis for an
allegation
of unfair dismissal.
[30]
It cannot however be similarly concluded that there is cause for a
basis of an alleged
unfair dismissal where the employee had the
benefit of a full disciplinary enquiry, and where she was told that
she would be dismissed
given the evidence presented and where that
employee makes an informed decision. In this case, the election of
early retirement
given the circumstances under which it was made can
hardly constitute a dismissal. The Applicant essentially made her
choice.
[31]
It is accepted that the
standard for considering an application for condonation is the
interests of justice
[3]
.
As to what is in the interests of justice must clearly take due
regard to all the relevant factors, and the particular circumstances
of each case. It cannot in my view, be in the interest of justice to
grant condonation in circumstances where a party’s prospects
of
success are remote, even if the delay is insignificant or where there
is a plausible explanation for that delay. Thus were it
is evident
that a party seeking condonation has no prospects of succeeding in
its principal claim or opposition, it would not be
in the interests
of justice to grant condonation, nor would there be any purpose
served in granting condonation
[4]
.
This factor is also aligned to the consideration of prejudice to the
parties. Thus, to the extent that condonation were to be
granted in
circumstances where a party did not have prospects of success, it
would be prejudicial to the respondent party to have
to defend a
matter that has no merit, and in these circumstances the interests of
justice would dictate that condonation should
not have been be
granted, and the ruling is therefore unassailable.
[32]
To conclude then, I am satisfied that the review application has no
merit, and that the
conclusions and decision reached by the
Commissioner falls within a band of reasonableness. I have also
considered the requirements
of law and fairness and hold the view
that a cost order is not warranted in this case.
Order:
[33]
In the premises, I make the following order:
1.
The application to review and set aside the condonation ruling issued
by the
Second Respondent is dismissed.
2.
There is no order as to costs
____________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Adv. PJ van Staden
Instructed
by:
Loretta Hayward Attorneys
For
the Third Respondent:
MMH Titus of Macgregor Erasmus Attorneys
[1]
1962
(4) SA 531
(A) at 532B-E, where it was held that;
‘
In deciding whether sufficient
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
are the degree of lateness, the
explanation therefor, the prospects of success and the importance of
the case. Ordinarily these
facts are interrelated, they are not
individually decisive, 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 the
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 prospects which are not
strong. Or the importance of the issue and strong prospects may tend
to compensate
for a long delay. And the Respondent’s interests
in finality must not be overlooked”
[2]
Which provides that;
‘
11.4.2 Where the respondent or
the applicant has filed its opposing or replying affidavits outside
the time period set out in
the rules, there is no need to apply for
condonation for the late filling of such affidavits unless the party
upon whom the affidavits
are served files and serves a Notice of
Objection to the late filing of the affidavits. The Notice of
Objection must be served
and filed within 10 days of the receipt of
the affidavits after which time the right to object shall lapse.’
[3]
See
Brummer v Gorfil
Brothers Investments (Pty) Ltd and Others
[2000] ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) at para
3; and
Grootboom v National
Prosecuting Authority and Another
(CCT 08/13)
[2013] ZACC 37
;
2014 (2) SA 68
(CC);
2014 (1) BCLR 65
(CC);
[2014] 1 BLLR 1
(CC); (2014) 35 ILJ 121 (CC) (21 October 2013)
[4]
Kerradam Properties (PTY)
LTD t/a Cabanga Conference Centre v Sonica Matthee
Case no: JA 72/2010 at para 5