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[2017] ZALCCT 53
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Ebrahim and Another v Commission for Conciliation, Mediation and Arbitration and Others (C576/2017) [2017] ZALCCT 53 (19 September 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
(
HELD
AT CAPE TOWN
)
CASE
NUMBER
: C576/2017
DATE
:
19 September 2017
In
the matter between:
MUSHTAQ
EBRAHIM
1
st
Applicant
NAZIA
PEER
2
nd
Applicant
and
COMMISSION
FOR CONCILIATION
,
MEDIATION
AND
ARBITRATION
1
st
Respondent
MAUREEN
DE BEER
2
nd
Respondent
VUYISEKA
MPAMBANI
3
rd
Respondent
JUDGMENT
STEENKAMP,
J
:
This
is an urgent application, set down on one day’s notice, to stay
a con-arb proceeding in the CCMA set down for tomorrow,
20 September
2017, pending an application to review a
condonation
ruling by Commissioner Maureen de Beer handed down on 31 August 2017,
three weeks ago. This application was brought
on less than one day’s
notice to the employee, Ms Mpambani, who is cited as the third
respondent.
Although
the ruling was handed down 1 August, the employers then attempted to
ascertain from the CCMA whether further proceedings
would be put on
hold, pending a possible review.
Although
it is trite law that a review application does not automatically stay
an arbitration ruling, the CCMA in any event responded
by 14
September to make that clear. Nevertheless the applicants waited
until yesterday, 18 September, to launch this application,
as I say,
on less than one day’s notice; and notice was only given to the
employee by way of email.
Regardless
of that apparent self-created urgency and the non-compliance with the
rules of this Court relating to service, I will
deal with the merits
of the application.
Firstly,
the applicants have to set out why they have a clear right, or at
best for them -- if this is seen as an interim application
pending
the review -- a
prima
facie
right
for the relief sought.
In
this regard Ms
Foster
,
who appears for the applicants, has argued that it would save the
parties “time and expense” if the con-arb were stayed,
pending an application to review the condonation ruling. In my
view the exact opposite applies.
The
aim of the Labour Relations Act (Act 66 of 1995), as set out in
section 1, is to promote the effective resolution of labour
disputes.
Its further aim is to provide for expeditious and cheap dispute
resolution. That is what the conciliation and arbitration
process is designed for. Should this application be granted, it
would mean that the con-arb proceedings for tomorrow, which
will take
no longer than a day, are postponed until sometime next year, pending
a review application of an interim condonation
ruling.
There
are two problems with that sequence of events. Firstly, it
would be contrary to the aim of the LRA of expeditious dispute
resolution. Secondly, the time and expense that Ms
Foster
complains of, would affect the employee, who is now an unemployed
mother of a young baby, for at least a year, when the alternative
is
that she could have a hearing and an outcome, either in her favour or
against her, as soon as tomorrow.
The
Act was also recently amended to provide in section 158(1)(b) that
this Court may not review any decision or ruling made during
conciliation and arbitration proceedings before the issue in dispute
has been finally determined, unless the Court finds that it
is just
and equitable to do so.
A
ruling is described as a decision on a limited issue, usually made at
the conclusion of interlocutory proceedings, as set out
by the
learned authors in Du Toit
et al
,
Labour Relations Law: A Comprehensive
Guide
, 6
th
Edition, at page 164. Examples include specifically a decision
on condonation. The authors further point out (at page
190)
that the Labour Appeal Court has held that the Labour Court has
jurisdiction to interdict any unfair conduct, also in the
context of
incomplete proceedings, but that such intervention should only be
made in exceptional cases.
Among
the factors to be considered is whether failure to intervene would
lead to grave injustice or whether justice might be attained
by other
means. In this case I therefore have to consider whether the
refusal to intervene at this interlocutory stage would
lead to grave
injustice to the applicants. I think not. They will have a full
opportunity to have the case heard on the merits
tomorrow and the
matter can be resolved then and there, rather than waiting another
year and spending a lot more “time and
expense”, to quote
Ms
Foster
.
And even then the applicants would have to persuade another Court
that the condonation ruling is reviewable in circumstances
where the
arbitrator took into account all the evidence and submissions before
her and tested that against the test set out in
the well-known case
of
Melane v Santam Insurance Company
Limited
1962 (4) SA 531(A).
She
took into account, firstly, that the degree of lateness was very
short -- only seven days. The reasons for lateness she
found to
be sufficient, mainly that the employee, or the former employee, was
not aware of the steps to be taken within the time
period of 30 days.
On
the issue of prospects of success, the Arbitrator accepted that at
this interim stage the employee “may have prospects
of success
if her allegations prove to be correct.” That, of course,
is something that can only be tested in oral evidence.
The
Arbitrator also took into account that the prejudice to the employers
was not substantial, especially considering the short
delay.
On
the face of, it the employers will have a hard time persuading a
Court that that conclusion, based on a discretion exercised
by the
Arbitrator, is so unreasonable that no other arbitrator could have
come to the same conclusion. In the context of
this case, the
short delay, as opposed to the excessive delay that will be
occasioned by granting the relief sought, must be considered
in the
context of the balance of convenience.
The
balance of convenience clearly favours the employee. Whether
her case has any merit or not, it can and should be heard
tomorrow,
in line with the aims of the Act of expeditious dispute resolution,
rather than this matter having to be postponed until
sometime next
year for the review of an interlocutory ruling.
The
applicants have not set out any exceptional circumstances why the
relief should be granted. In any event, they have an
alternative remedy, which is to simply attend the con-arb tomorrow,
lead oral evidence and show that there was no unfair dismissal.
There
is also no apprehension of irreparable harm to the applicants. Any
harm that they suffer in the short period from today until
tomorrow,
can be rectified when the matter is heard tomorrow, rather than
waiting until next year for a review application with,
in my view,
slim prospects of success.
In
those circumstances the urgent application for the relief sought in
part A of the notice of motion is dismissed
.
------------------------------
STEENKAMP,
J
For
the applicants: Ms J R Foster
Instructed
by Clyde & Co.