About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Port Elizabeth Labour Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Port Elizabeth Labour Court, Port Elizabeth
>>
2017
>>
[2017] ZALCPE 30
|
|
NUMSA and Others v Transnet SOC Ltd (PR58/16) [2017] ZALCPE 30 (25 October 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT PORT ELIZABETH
Case
Number: PR58/16
In
the matter between:
NUMSA
+
Others
Applicants
and
Transnet
SOC
Ltd
Respondent
JUDGMENT
Steenkamp
J
[1]
This is an application to have a condonation ruling by Ebrahim
Patelia, a panellist of the Transnet Bargaining Council, reviewed
and
set aside.
[2]
NUMSA, the trade union appearing on behalf of eleven of its members,
referred an unfair dismissal dispute to the bargaining
council. It is
common cause that it was some 70 days late, in other words more than
twice the time period of 30 days provided for
in
s 191(1)
of the
Labour Relations Act 66 of 1995
.
[3]
The arbitrator considered the condonation application at the hand of
the well known principles set out in
MELANE v SANTAM INSURANCE CO.
LTD
1962(4) SA 531 (A).
[4]
Firstly, as far as the degree of lateness is concerned, it is
obviously an inordinate delay -- as I have said, more than twice
the
period provided for -- and the arbitrator then considered the reasons
for the delay.
[5]
The main reason is that the union attempted to fax the referral to
the bargaining council on 2 November 2016, but the transmission
did
not go through. The union then sent it to TOKISO, which is not the
proper forum, but said that it thought that there was a
relationship
between TOKISO and the bargaining council.
[6]
The commissioner considered that there was no effective and proper
referral to the bargaining council on 2 November 2016 and
concluded
that it was caused by the fault of the union representative.
Ultimately, he said, the employees bear the consequences
of the
actions of their union representative. He then considered the
prospects of success and said that he was unable to make a
clear
determination; however, the Transnet supplementary affidavit, he
said, places doubt on the credibility of the union representative’s
affidavit. In this regard, although he does not say so in so many
words, he took into account the principle set out in
PLASCON EVANS
PAINTS v VAN RIEBEECK PAINTS
[1984] ZASCA 51
;
1984 (3) SA 623
(A) that, in case of
a conflict and a decision on the probabilities, he needed to consider
the evidence of the respondent insofar
as it contradicts that set out
by the applicant and it is not clearly untenable. He also found that
Transnet would suffer greater
prejudice should the condonation
application be granted; that there were no public policy issues at
stake; and that it would not
be in the interests of justice to grant
the condonation application.
[7]
The union essentially argues that that conclusion is so unreasonable
that no other arbitrator could have come to the same conclusion.
[8]
Before I deal with the merits of that contention, I must deal with an
issue raised by Ms
Gagiano
, and that is that the arbitrator
should not have taken into account the answering affidavit filed by
Transnet in the condonation
application, as that affidavit was itself
filed five days late. The arbitrator did deal with that preliminary
point raised by the
union and he noted that according to Transnet a
Ms Winnie Mataung from the bargaining council confirmed that, “as
the respondent,
we do not respond to applications until such time
that they are sent to us by the Transnet Bargaining Council with a
date for response.”
Transnet alleged that it was notified of
the application on 7 February 2016 and therefore the answering papers
were due on 14 February.
It is in that context that the arbitrator
accepted the answering affidavit. That explanation is indeed the one
proffered by Transnet
and, although it does not appear to correspond
with the rules of the bargaining council, what is stated under oath
by Ms Lee-Anne
Neveling, the company’s employee relations
officer, is not gainsaid by the union. She says under oath: “Ms
Motaung
confirmed that as the respondent we did not respond to
applications until such time that they are sent to us by the TBC with
a
date for response. This is how the TBC has worked since I have been
dealing with them and as such I followed the same process in
this
matter. The TBC notified me on 7 February 2017 that they had received
the application. It was therefore only then that answering
papers
were due on 14 February 2017. The answering affidavit was duly served
and filed on 13 February 2017.” Confronted with
that evidence
it was not unreasonable for the arbitrator to accept it and
consequently to accept the answering affidavit into evidence.
The
question then remains whether his overall conclusion was a reasonable
one.
[9]
Ms
Gagiano
argued that the arbitrator should have taken into
account that at least part of the delay could have been, and was
explained, due
to the festive season. This court has held on numerous
occasions that the so-called collective slumber that the country
enters
customarily in December and January is not something to be
taken into account in condonation applications. The union was well
aware
of the time periods involved and it was indeed, as the
arbitrator found, negligent of the union and its officials not to
cater
for that and to make sure that it acted in the interests of its
members before embarking on holiday.
[10]
As far as the prospects of success go, the arbitrator did note that
he could not on the papers before him, and without any
evidence, make
a clear determination on the prospects of success. However, as I have
pointed out, he took into account the evidence
on affidavit, as he
must in terms of the rule in
PLASCON EVANS,
and he found that
it cast doubt on the version of the union. He also took into account
that the employees were dismissed for gross
insubordination after a
disciplinary hearing; and he was alert to the evidence of Transnet
that the employees blatantly refused
two instructions from their
supervisor and were insubordinate and insolent.
[11]
The other issue raised by Ms
Gagiano
and also raised before
the arbitrator was an allegation that the chair-person of the
disciplinary hearing had colluded with the
company in an off the
record discussion. At best, that discussion refers to the hearing
dedicating at least an hour to “process
only”. The
arbitrator found that the transcript does not establish that there
was collusion between the chairperson and the
company representative.
That finding is not, in my view, so unreasonable that no other
arbitrator could have come to the same conclusion,
given the
inconclusive nature of the words uttered.
[12]
In a nutshell, the arbitrator exercised his discretion in deciding
whether or not to grant condonation. This court sitting
on review is
loath to interfere with the exercise of a discretion, provided it is
properly exercised and not capriciously or in
arbitrary fashion. The
ruling made by the arbitrator comfortably crosses that threshold, and
what is more, it is not so unreasonable
that no other arbitrator
could have come to the same conclusion on the evidence before him.
The ruling is not open to review.
[13]
Both parties asked for costs to follow the result. I see no reason to
differ.
The
application for review is dismissed with costs.
___________________
Steenkamp
J
Date
of Hearing:
25 October
2017
Date
of Judgment:
25 October 2017
For
the Applicants:
Ms Lodene Gagiano
Instructed by Minnaar Niehaus.
For
the Third Respondent: Mr Siya Cokile (attorney).