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[2017] ZALCPE 14
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Barends v Bargaining Council for Civil Engineering Industry and Others (PR61/17) [2017] ZALCPE 14 (2 November 2017)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not
Reportable
Case no: PR 61/17
In
the matter between:
JOHNY
BARENDS
Applicant
and
BARGAINING
COUNCIL FOR CIVIL ENGINEERING
INDUSTRY
First Respondent
COMMISSIONER
THEMBA MANGANYI
Second Respondent
PENNY
FARTHING ENGINEERING (PTY) LTD
Third Respondent
Heard:
12 October 2017
Delivered:
02 November 2017
JUDGMENT
MAMOSEBO.
AJ
[1]
An
unfair dismissal dispute should, in terms of the Labour Relations
Act
[1]
(the LRA) be referred to
the Commission for Conciliation, Mediation and Arbitration (CCMA) or
the relevant Bargaining Council within
a period of 30 days
of
the date of a dismissal or, if it is a later date, within 30 days of
the employer making a final decision to dismiss or uphold
the
dismissal.
[2]
The
applicant should have referred his dispute on or before 01 December
2016, however, he only did so on 10 January 2017, 40 days
out of
time.
[2]
On
01 March 2017 the second respondent, commissioner Themba Manganyi, of
Bargaining Council for Civil Engineering Industry (BCCEI),
the first
respondent, heard the application for the condonation of the late
referral of the dispute. He issued a ruling on 04 March
2017 to this
effect:
‘
This
applicant did not make out a good case to show good cause for
referring his dispute late. Therefore, this application is not
granted.’
[3]
Following
the BCCEI proceedings, the applicant approached this Court for an
order in the following terms:
3.1
Reviewing and setting aside or correcting the condonation ruling by
the commissioner;
3.2
Directing the BCCEI to hear the condonation application
de
novo
before a commissioner other than the second respondent;
3.3
In the alternative, substituting the ruling of the second respondent
with an order condoning the late referral
and directing the BCCEI to
enrol the matter for arbitration
de
novo
before a commissioner other than the second respondent.
[4]
In
resisting the application, the third respondent submitted that the
applicant’s employment contract came to an end on 01
November
2016 because he worked on a project basis. This is gainsaid by the
applicant who maintained that he was employed on a
permanent basis.
[5]
Essentially
the grounds for the review of the commissioner’s ruling were
the following: First that the applicant alleged that
he did not know
about the CCMA. Secondly, he waited for the employer to pay him his
December 2016 salary before he could seek relief
at the CCMA. Lastly,
he contended that the CCMA offices in Humansdorp were closed after 15
December 2016.
[6]
In refusing to grant condonation the commissioner was of the view
that the CCMA offices closed on 24 December 2016. He was not
convinced by the applicant’s explanation for the delay which he
also found to be contradictory.
[7]
Ms Van Staden, for the applicant, contended:
7.1
that the commissioner’s conclusion that the CCMA offices only
closed on 24 December 2016 was his subjective
view not raised by any
of the parties in their papers. The rejection by the commissioner of
the case made out by the applicant
that offices of the CCMA in
Humansdorp had been closed without taking into account that this was
a satellite office was unreasonable.
The explanation proffered for
the delay was probable and is persuasive.
7.2
Regard being had to the fact that the applicant was indigent he could
not be blamed for saying that he “waited
for the money in
December”. There was an obligation on the commissioner to seek
clarification of the statement from the applicant.
This may have
meant that the applicant lacked funds to approach the CCMA and could
only do so upon receipt of the payment in December,
the argument
went.
[8]
It is trite that condonation is not to be had merely for the asking.
In
Melane
v Santam
Insurance
Co Ltd
[3]
the
Court
laid
down
the
following guiding principles when considering the application for
condonation:
“
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, for that will be a
piecemeal approach incompatible with a true discretion,
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 for prospects of success which are
not strong. Or the
importance of the issue and strong prospects of success may tend to
compensate for a long delay”
[9]
The commissioner did not at all consider the applicant’s
prospects of success with his unfair dismissal dispute. It is
trite
that each case must be judged on its own merits. Apparent from the
factual matrix sketched, the dismissal is in dispute.
The applicant’s
averment is that he was employed on a permanent contract and not on a
fixed term contract as alleged by his
employer, the third
respondent. The purported fixed term contract appears not to have
been signed by the applicant. Ms Van
Staden argued that the applicant
was dismissed without a hearing and for no valid reason. In light of
all these, I am of the view
the applicant has an arguable case fit
for arbitration. Although the 40 days’ delay in the filing of
the applicant’s
dispute is inordinate, in my view, the
applicant has good prospects of success which compensates the delay.
It was important for
the commissioner to approach the application
holistically and to have regard to the explanation offered for the
delay. He did not
do so. The degree of lateness assessed in isolation
could not have produced a fair and reasonable outcome considering the
dies
non
between
24 December 2016 and arguably 09 January 2017.
[10]
On the above conspectus, it was unreasonable for the commissioner to
find, without substantiating facts, that the specific
satellite CCMA
at Humansdorp, where the applicant resides, was not closed. The
commissioner misconstrued the nature of the enquiry
he was enjoined
to undertake. It follows that the review application should succeed.
[11]
It would unnecessarily delay this matter if I were to remit it for
the hearing of the application for condonation afresh. As
already
alluded to, the applicant has good prospects of success. His
application for condonation ought to have been upheld.
[12]
In the result, the following order is made:
Order
1.
The
condonation ruling dated 04 March 2017 issued under case number ECPE
291/17 by commissioner Themba Manganyi, the second respondent,
is
reviewed and set aside;
2.
Condonation
for the late referral of the applicant’s dispute is granted;
3.
The
matter is remitted to the Bargaining Council for Civil Engineering
Industry (BCCEI), the first respondent, for arbitration
de
novo
before a commissioner other than the second respondent.
_______________
MC Mamosebo
Acting Judge of the
Labour Court of South Africa
Appearances
For
the applicant:
Ms E van Staden
Instructed
by:
Justice Centre, Port Elizabeth
For
the respondents:
None
[1]
Act
66
of 1995 as amended.
[2]
S 191 (1)(b) (i)
of the LRA
as amended.
[3]
1962 (4) SA 531
(A) at 532C –F.