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[2018] ZALCJHB 16
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Association of Mineworkers and Construction Union and Others v Commission for Conciliation, Arbitration and Mediation and Others (JR730/16) [2018] ZALCJHB 16 (25 January 2018)
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Not
Reportable
Case
no: JR730/16
In
the matter between:
THE
ASSOCIATION OF MINEWORKERS
AND
CONSTRUCTION UNION
First
Applicant
THE
MEMBERS OF AMCU REFLECTED ON
ANNEXURE
‘A’
Second to
Further
Applicants
and
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION MEDIATION
First Respondent
COMMISSIONER
KGOMOTSO LEKWAKWE
N.O
Second
Respondent
GLOBAL
CLEANING SERVICES (PTY) LTD
Third Respondent
EKM
TRADING (PTY)
LTD
Fourth Respondent
TMMS
TRADING
CC
Fifth Respondent
ELUTSANE
ENTERPRISE (PTY) LTD
Sixth
Respondent
MAHUBE
A GAUTA 78 HOLDINGS (PTY) LTD
Seventh Respondent
KWEZI
INVESTMENTS (PTY) LTD
Eighth Respondent
SIZISA
UKHANYO TRADINGS 498 CC
Ninth Respondent
Heard:
15 November 2017
Delivered:
25 January 2018
Summary:
Application in terms of section 158(1)(g) of the LRA – review
of a
condonation ruling
– given the unreasonable explanation, prospects of success are
immaterial – the condonation ruling
is rational and beyond
reproach.
JUDGMENT
NKUTHA-NKONTWANA.
J
Introduction
[1]
This
is a review application in terms of section 158(1)(g) of the Labour
Relations Act
[1]
(the LRA). The
first applicant, the Association of Mineworkers and Construction
Union (AMCU), and second to further applicants
(individual
applicants), seek to review, set aside and substitute the condonation
ruling issued by the second respondent (the commissioner)
dated 3
March 2016 under case number GAJB165-16. The commissioner dismissed
the applicants’ application for condonation for
the late filing
of an unfair dismissal dispute.
[2]
The application is
opposed only by the third respondent (Global Cleaning).
Background
facts
[3]
The facts in this case
are mostly common cause. In 2003, AngloGold Ashanti (AngloGold)
engaged Global Cleaning to provide cleaning
services on its mines in
the Carltonville area (the cleaning service agreement). The
individual applicants were employed by Global
Cleaning as cleaners
and were placed at various AngloGold premises.
[4]
The cleaning service
agreement was terminable,
inter
alia
, by AngloGold
giving 30 days’ notice to Global Cleaning. Global Cleaning
argued that the individual applicants had agreed,
in terms of their
employment contracts, to an automatic termination clause in terms of
which their employment would automatically
terminate upon AngloGold
terminating the cleaning service agreement. This is disputed by the
applicants.
[5]
On 8 June 2015,
AngloGold terminated the cleaning service agreement on 30 days’
notice to Global Cleaning. The reason that
had been proffered for the
termination is that AngloGold intended to divide the cleaning service
agreement and put out to tender
each part. On 9 June 2015, Global
Cleaning informed the individual applicants that their services would
terminate automatically
on 21 July 2015, and in so doing invoked the
automatic clause, so Global Cleaning argued. In view of that, the
dismissal of the
individual applicants was not preceded by a
consultation in terms of section 189 of the LRA.
[6]
It is common cause that
the actual date of dismissal of the individual applicants is 21 July
2015. On 4 January 2016 the applicants
referred a dispute based on
unfair dismissal for operational requirements to the Commission for
Conciliation Mediation and Arbitration
(the CCMA) together with the
condonation application. The degree of lateness was almost 5 months
or 142 days.
[7]
The applicants’
explanation for the delay is that they were of the
bona
fide
but mistaken
view that despite the termination of the individual applicants’
employment contracts with Global Cleaning, the
individual applicants
would be employed by the new service providers. In other words, they
were of the mistaken belief that the
individual applicants would ‘not
lose their jobs’ and therefore it was unnecessary to refer an
unfair dismissal dispute
to the CCMA. It was only when their belief
for employment with the new service providers did not yield the
desired result and having
taken legal advice, that the applicants
referred an unfair dismissal dispute to the CCMA.
[8]
The applicants argued
that their belief was informed by the historical fact that the
individual applicants’ employment was
never affected by the
change of cleaning contractors at different AngloGold premises since
2003.
[9]
On 9 July 2015, whilst
waiting for the new service providers to employ the individual
applicants, the applicants referred a severance
pay dispute to the
CCMA consequent to being served with the notice of termination of the
individual applicants’ contracts
of employment by Global
Cleaning. In the LRA 7.11 form the facts in dispute and the required
result are summarised as follows:
‘
The company
is refusing to discuss the issue of severance payment since some
workers are to be retrenched & also refusing to
discuss s189.
We request the company to pay
severance package if needs be.’
[10]
Despite being clearly
well-versed of their rights in terms of section 189 of the LRA, the
applicants failed to refer an unfair dismissal
dispute to the CCMA at
that stage. Coverley, assisted by AMCU, the individual applicants
registered a close corporation and used
it as a vehicle to tender for
the cleaning services to replace Global Cleaning.
[11]
The awarding of tenders
to the successful companies happened before the end of October 2015
and the new service providers, the fourth
to the ninth respondents,
commenced their services on 1 November 2015. The individual
applicants’ corporation was unsuccessful
and regrettably the
new service providers only employed 54 individual applicants contrary
to the applicants’ belief. Even
the 54 individual applicants
who were employed by the new service providers lost their years of
service as they were employed on
new employment contracts.
[12]
The individual
applicants embarked on a protest action at the premises of AngloGold
in response to their non-appointment by the
new service providers. On
3 November Mr Mathunjwa, the AMCU president, intervened and as a
result, 60 additional individual applicants
were employed by
AngloGold and without the assistance of Global Cleaning.
[13]
It was clear, at least
by 1 November 2015, that the individual applicants were not going to
be employed by the new service providers.
The applicants still did
not refer the dispute soon thereafter as would have been expected.
They waited up until 4 January 2016
to approach the CCMA. The
explanation proffered for the 2 months’ delay is that the
applicants sought legal advice on 6 December
2015 and AMCU officials
went on leave during the December holidays before providing the
details of the new service providers and
that made it impossible to
settle the affidavit in support of the condonation application.
Grounds
of review
[14]
The first ground of
review is that the commissioner failed to consider, alternatively,
properly consider the relevant evidence regarding
the explanation for
the delay.
[15]
The second ground of
review is that the commissioner undertook the wrong enquiry and/or
undertook an enquiry in a wrong manner when
he had to consider all
the rudiments applicable in an application for condonation,
particularly the prospects of success, prejudice
and the importance
of the matter.
Legal
principles and evaluation
[16]
It
is trite that the failure by a commissioner to apply his or her mind
to issues which are material to the determination of a case
constitutes an irregularity. However, before such an irregularity can
result in the setting aside of the award, or ruling in this
instance,
it must, in addition, reveal a misconception of the true enquiry or
result in an unreasonable outcome.
[2]
[17]
In
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others,
[3]
it was stated that:
‘
Nothing said in
Sidumo
means that the CCMA's arbitration award can no longer be reviewed on
the grounds, for example, that the CCMA had no jurisdiction
in a
matter or any of the other grounds specified in s 145 of the Act. If
the CCMA had no jurisdiction in a matter, the question
of the
reasonableness of its decision would not arise. Also if the CCMA made
a decision that exceeds its powers in the sense that
it is ultra
vires its powers, the reasonableness or otherwise of its decision
cannot arise.’
[18]
Even
though the above matter was decided in terms of section 145(2) of the
LRA, it was held in
Southern
Life Association v Commission for Conciliation, Mediation and
Arbitration (CCMA)
[4]
that the extended grounds of review identified therein are equally
applicable to review proceedings brought under section 158(1)(
g
)
to the extent that it involves a decision by a CCMA commissioner
exercising public power. This construction accords with the
constitutional imperatives.
[19]
It
is also trite that condonation is not a formality, merely there for
the asking. The Labour Appeal Court (LAC) in
Queenstown
Fuel Distributors CC v Labuschagne NO and Others
,
[5]
pointed out that the principles of condonation should be much
stricter than those which were applied ‘in normal
circumstances’.
The Court stated that:
‘…
In principle,
therefore, it is possible to condone non-compliance with the
time-limit. It follows, however, from what I have said
above, that
condonation in the case of disputes over individual dismissals will
not readily be granted. The excuse for non-compliance
would have to
be compelling, the case for attacking a defect in the proceedings
would have to be cogent and the defect would have
to be of a kind
which would result in a miscarriage of justice if it were allowed to
stand.
The
principles set down in
Melane v Santam Insurance Co
Ltd
[6]
remain a yardstick.
In
National
Union of Mineworkers v Council for Mineral Technology
,
[7]
the LAC reaffirmed the position
Melane
and
stated that:
“
The
approach 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 therefore,
the
prospects of success and the importance of the case. These facts are
interrelated: they are not individually decisive. What
is needed is
an objective conspectus of all the facts. A slight delay and a good
explanation may help to compensate for prospects
of success which are
not strong. The importance of the issue and strong prospects of
success may tend to compensate for a long
delay.
There
is a further principle which is applied and that is that without a
reasonable and acceptable explanation for the delay, the
prospects of
success are immaterial, and without prospects of success, no matter
how good the explanation for the delay, an application
for
condonation should be refused
…’
(emphasis added)
[20]
A
full and acceptable explanation has to be given for ‘
whatever
delays non-compliance has occasioned; an inadequate explanation could
well bar the grant of condonation’
.
[8]
In
Moila
v Shai NO and Others,
[9]
the LAC stated that it is not necessary to consider the prospects of
success as condonation could be refused no matter how strong
the
prospects of success where there were periods of delay for which
there was either no acceptable explanation or no explanation
at all.
[21]
In the present case,
the applicants’ argument that the delay in referring the
dismissal dispute to the CCMA by almost 4½
months was because
of a mistaken belief that the individual applicants would be employed
by the new service providers is untenable.
The applicants promptly
referred a severance dispute
upon
receipt of the notice
of
termination in line with section 191(2A) of the LRA. They did that
despite their belief and hope for employment with the new
service
providers. It is apparent, also, from the referral form that Global
Services’ refusal to follow a section 189 of
the LRA procedure
was the only other issue that was questioned by the applicants at
that stage even though it was not included
as an issue in dispute.
[22]
It
is mind boggling, therefore, that AMCU, a seasoned trade union with
access to renowned law firms, would fail to take a conventional
step
of referring a dispute in order to preserve the rights of the
individual applicants pending the appointment of new services
providers.
[10]
One can only
infer from the applicants’ conduct that they had accepted the
rationale for the dismissal of the individual
applicants hence they
even formed a company that tendered to replace Global Cleaning, their
employer. The fact that they are now
challenging the substantive
fairness of the individual applicant’s dismissal is
disingenuous. They can’t have their
cake and eat it too or as
the German saying goes “You can’t dance at two weddings.”
[23]
In any event, even if
condonation was not a hurdle, the applicants would still be faced
with another jurisdictional hurdle in relation
to a procedural
dispute given the number of the individual employees affected, which
is 159 in total.
Section 189A of the LRA
deals with dismissals based on operational requirements by employers
with more than 50 employees and in
terms of section 189A(1):
‘
This section applies to
employers employing more than 50 employees if –
(a)
the employer contemplates dismissing by reason of the employer’s
operational requirements, at least –
(i)
10 employees, if the employer employs up to 200 employees;
(ii)
20 employees, if the employer employs more than 200, but not more
than 300, employees;
(iii)
30 employees, if the employer employs more than 300, but not more
than
400, employees;
(iv)
40 employees, if the employer employs more than 400, but not more
than
500, employees; or
(v)
50 employees, if the employer employs more than 500 employees…’
[24]
Clearly, section 189A
is applicable.
To the extent that the
applicants are also challenging the procedural fairness of the
individual applicants’ dismissal, in
terms of section 189A(18),
the ‘Labour Court may not adjudicate a
dispute
about the procedural fairness of a
dismissal
based on the employer’s
operational
requirements
in any
dispute
referred to it in terms of section
191(5)(
b
)(ii)’.
By the same token, the CCMA lacks jurisdiction to conciliate a
procedural dispute that ought to have been referred
to the Court in
terms of section 189A(13).
[25]
Accordingly,
I
agree with the commissioner that the explanation for the delay
proffered by the applicants is unreasonable and unacceptable and
as
such the prospects of success are immaterial.
Still,
I have had regard to the prospects of success and I find them to be
poor. As stated above, the applicants’ conduct
is indicative of
persons who had accepted the rationale for the individual applicants’
dismissal.
[26]
I am alive to the fact that the real
reason for the dismissal of the individual applicants is in dispute.
I, however, deem it unnecessary
to pronounce on this issue given the
findings I have made above.
Conclusion
[27]
In a nutshell, the
commissioner’s ruling is beyond reproach.
Costs
[28]
There is no reason why
costs should not follow the result. The applicants ought to have been
better advised of the consequences
of reviewing the condonation
ruling given the circumstances of this case.
[29]
In the result, I make the following order.
Order
1.
The application to review the commissioner’s
condonation ruling dated 3 March 2016 under case number GAJB165-16 is
dismissed.
2.
The applicants are ordered pay the costs.
__________________
P Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For the applicants:
Advocate S Collet
Instructed
by
Larry Dave Incorporated Attorneys
For the third
respondent:
Advocate A Landman
Instructed
by
Ronelda Van Staden Attorneys
[1]
Act
66 of 1995 as amended.
[2]
See:
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC)
; Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curia)
[2013] 11 BLLR 1074
(SCA); Gold Fields Mining South Africa
(Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation
and Arbitration and
Others
[2013]
ZALAC 28
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC) at paras
14 to 16 and
Department of
Education v Mofokeng Head of the Department of Education v Mofokeng
[2015] 1 BLLR 50 (LAC).
[3]
(2008) 29 ILJ 964 (LAC) at para 101;
see
also Premier Foods
(Pty) Ltd (Nelspruit) v Commission for Conciliation, Meditation and
Arbitration and Others
[2016] ZALCJHB 426; (2017) 38 ILJ 658 (LC) at paras 15 -16.
[4]
[2001] 3 BLLR 375
(LC) at 380.
[5]
[2000] 1 BLLR 45
(LAC) at para 24
.
[6]
1962
(4) SA 531
(A).
[7]
[1999] 3 BLLR 209
at 211-213
[8]
Toyota South Africa
Motors (Pty) Ltd v Commissioner, South African
Revenue Service
2002 (4) SA 281 (SCA)
at para 15.
[9]
(2007) 28 ILJ 1028
(LAC) at
1038, para 36.
[10]
See
NEHAWU
and Others v Vanderbijlpark Society for the Aged
[2011] 7 BLLR 690
(LC) at para 9. In this case the Court dismissed
the condonation application where the union referred a retrenchment
dispute
out of time by three months and relied principally on its
internal procedures to explain delay. The Court pertinently stated
that ‘The LRA has been in existence for more than 15 years,
and the time limits governing referrals have not changed in that
time. It is reasonable to expect that trade unions ought to be well
aware of the need to act timeously in the interest of their
members...’; see
also
Independent Municipal Allied Trade Union (IMATU) obo Zungu v South
African Local Government Bargaining Council and Others
[2009] ZALC 137
; (2010) 31 ILJ 1413 (LC) at para 25.