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[2018] ZALCJHB 60
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MEC Department of Economic Development, Environment and Tourism, Mpumalanga v NEHAWU obo Rambau and Others (JR2386/15, J323/16) [2018] ZALCJHB 60 (2 February 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case no: JR 2386/15; J 323/16
In the matter between
MEC
DEPT OF ECONOMIC
DEVELOPMENT,
ENVIRONMENT AND
TOURISM,
MPUMALANGA
and
NEHAWU
obo WINNIE RAMBAU
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
COMMISSIONER
M SAMBO
N.O
.
Applicant
First
Respondent
Second
Respondent
Third
respondent
Heard:
1 February 2018
Judgment:
2 February 2018
JUDGMENT
VAN
NIEKERK J
[1]
There are two applications before the court. The first, filed under
case number JR 2386/15, is an application to review and
set aside an
arbitration award issued by the third respondent. In his award, the
third respondent, to whom I shall refer as ‘the
arbitrator’,
held that the dismissal of the first respondent (the employee) was
unfair, in the sense that the penalty of
dismissal was too harsh a
sanction for the misconduct that the arbitrator found the employee to
have committed. The arbitrator
substituted the sanction of dismissal
with an order of reinstatement, subject to a penalty of suspension
without pay for a period
of three months.
[2]
The second application (J 323/16) was filed by the first respondent
in the review application, and seeks to have the award under
review
made an order of court in terms of s 158 (1) (c) of the Labour
Relations Act (LRA). The parties are agreed that the fate
of this
application is dependent on the outcome of the review application.
[3]
The review application has a sorry history. The award under review
was issued on 12 October 2015. The applicant states that
the award
was received on 21 October 2015. The application to review and set
aside the award was filed on 2 December 2015, just
inside the
statutory limit for the filing of reviews. The review application
(and the award under review) were not placed in the
court file, and
had to be located in the s 158 (1) (c) file. There is no explanation
from the applicant’s representatives
as to why the court file
was not prepared as required by the Rules and Practice Directive.
[4]
The review application cites as respondents the employee and the
bargaining council. During March 2016, the applicant filed
a founding
affidavit (with no notice of motion attached) in which it seeks the
substitution of NEHAWU as the first respondent and
the joinder of the
arbitrator. The substitution of the employee by NEHAWU appears to be
motived by the fact that the applicant
was unable to serve the review
on the employee at her last known address, and that she was a member
of NEHAWU. (It is apparent
from the award but not mentioned by the
applicant in its founding affidavit that a NEHAWU official had
represented the employee
during the arbitration hearing.) In the
application to join the arbitrator, there is an explanation to the
effect that it is ‘common
practice’ to cite the
arbitrator in review applications, and that the applicant had
inadvertently omitted to do so. I should
mention that neither the
application to substitute nor the application to join is a proper and
competent application, there being
no notice of motion filed. Given
the conclusion to which I have come and which is reflected below, it
is not necessary for me to
consider these applications.
[5]
Be that as it may, the record of the proceedings under review was
filed only on 2 February 2017, a year and two months after
the review
application was filed.
[6]
Some three weeks later, on 21 February 2017, the applicant filed
(again without a notice of motion) what appears to be an application
to condone the late filing of the record and a supplementary
affidavit as contemplated by Rule 7A (8). The explanation for the
applicant’s non-compliance with the courts rules and practice
directive amounts to the following. On 2 December 2015, the
review
application was served on the bargaining council but not on the
employee, whose whereabouts could not be established. At
some
undisclosed later date, NEHAWU advised the applicant that it would
accept service of the application.
[7]
In the latter half of February 2016, the applicant was informed by
the bargaining council that the record of the proceedings
under
review was available for collection. The record was collected on 4
March 2016. The record was despatched (on a date that
is not
disclosed) to Digital Recording Transcriptions for typing. It was
subsequently discovered (on a date that is not disclosed)
that the
disc provided contained no data. The applicant’s
representatives telephoned the bargaining council and were requested
to send an email. This was sent on 18 March 2016. The bargaining
council was unable to find the record and supplied it to the
applicant’s representatives only on 22 August 2016. The
applicant states that the transcription was completed and provided
to
the applicant’s representatives on 18 August 2016 (This cannot
be correct – on the applicant’s own version,
the record
was provided to it on 22 August 2016.) On a perusal of the
transcription, it became apparent that the record was incomplete.
This was raised with the bargaining council during September 2016. On
30 November 2016, a new (and presumably) complete transcription
was
collected.
[8]
The standard to which parties are expected to comply in the
prosecution of review applications is set out clearly in the Practice
Manual. Clause 11.2.2 requires that the record of proceedings must be
filed within 60 days of the date on which the applicant was
advised
by the registrar that the record has been received. Clause 11.2.3
provides that if the applicant fails to find a record
within the
prescribed period, the application will be deemed to have been
withdrawn unless the applicant during that period requested
the
respondent’s consent for an extension of time and consent has
been given. If consent is refused, the applicant may on
notice of
motion supported by affidavit, applied to the Judge President for an
extension of time. Further, clause 11.2.7 provides
that review
application is by its nature an urgent application. An applicant in
review application is required to ensure that all
the necessary
papers in the application are filed within 12 months of the date of
the launch of the application, failing which
the application will be
archived and regarded as lapsed, in the absence of good cause shown
as to why the application should not
be uplifted from the archive.
The urgency with which review applications are required to be
prosecuted is further highlighted by
the statutory amendment
introduced in 2014 which requires an applicant to apply for a date
for a review application to be heard
within six months of delivery of
the application.
[9]
Although the application for condonation in the present instance does
not specifically address the shortcomings in respect of
which
condonation is sought, the most obvious of these is the failure to
deliver the record timeously. I will accept for present
purposes that
the application extends to a failure by the applicant to comply with
the practice manual and the consequences of
deemed withdrawal and
automatic collapsing established by clause 11 of the manual. I intend
therefore to consider whether the applicant
has shown good cause for
its failure to prosecute the review application timeously and in
particular, to file the record within
the prescribed time limit. This
requires the court to consider the length of the delay, the
explanation for that delay and the
applicant’s prospects of
success in the main application.
[10]
The delay in filing the record is inordinate. As I have recorded
above, the record was filed some one year and two months after
the
review application was filed. Further, it is not in dispute that the
applicant failed to either seek the consent of the respondent
for the
late filing of the record, or that the applicant applied to the Judge
President for an extension of the prescribed period.
Further, the
applicant has failed to ensure that all of the necessary papers were
filed within a period of 12 months from the date
on which the
application was filed.
[11]
The explanation for the delay is incomplete and woefully inadequate.
There is no explanation for the applicant’s failure
to comply
with clause 11 of the Practice Manual, or any explanation for the
failure to request the Judge President for an extension
of time. Even
if I were to accept the explanation that is proffered in the founding
affidavit, on the applicant’s version,
it collected a complete
transcription on 30 November 2016. Yet the record was filed on 2
February 2017, some two months later,
in circumstances where the
applicant was already hopelessly out of time.
[12]
The applicant does not address its prospects of success in the main
application. That in itself is a basis to refuse condonation
for the
late filing of the record. Be that as it may, the applicant’s
prospects of success in the review application are
minimal, if they
exist at all. Distraught that this court may intervene by way of
review if and only the decision reached by a
commissioner or
arbitrator is so unreasonable that it falls outside of a band of
decisions to which a reasonable decision-maker
could come on the
available material. In the present instance, what is at issue are the
questions of sanction and remedy. Specifically,
the applicant
contends that the arbitrator’s decision to set aside the
employee’s dismissal and substitute it with
a lesser penalty
(that of a period of unpaid suspension) is a decision that fails to
meet the reasonableness threshold. Further,
the applicant contends
that the arbitrator’s decision to reinstate the employee
(rather than to make an award of compensation)
is a decision that
fails to meet the reasonableness threshold.
[13]
The arbitrator’s reasoning can be found in the award itself. As
I have indicated, the arbitrator accepts that the employee
breached
the rules concerned, i.e. that she was insubordinate and insolent.
However, his is the following:
When looking at the matter in totality
I find the applicant to be a person that is not in a habit of obeying
instructions and does
not respect authority. On the other hand I find
the respondent also have a habit of condoning such behaviour as it
did in the first
charge by selectively disciplining officials. The
other factor took into consideration is that the respondent took long
to charge
and discipline the applicant. The applicant was charged in
19 months later in the first charge, five months later in the second
charge and eight months later in the third charge. The only
explanation given by the HUD was that the applicant was not
cooperative
with the investigation officer who was not even called to
testify (this is hearsay). The 19 month timeframe to charge the
applicant
negates the claim of irretrievable breakdown of
relationship by the respondent. As a result of the above I find of
the dismissal
not to be an appropriate sanction.
[14]
As I have indicated, the test is not whether the arbitrator came to
the right decision or whether this court would have come
to a
different decision. It is sufficient that the arbitrator appreciated
the nature of the enquiry, applied his mind to the evidence
and came
to a decision that is reasonable having regard to that evidence. In
the present instance, the arbitrator clearly understood
what was
required of him and the nature of the value judgement that he was
required to make. Section 193 (2) provides that reinstatement
is the
primary remedy for unfair dismissal. To the extent that the applicant
now contends it was unreasonable for the arbitrator
to have
reinstated the employee, the arbitrator clearly had regard to the
evidence before him and in particular, the evidence of
the
applicant’s dilatoriness in pursuing the charges of misconduct
against the employee. The periods of delay referred to
are inordinate
and obviously self-destructive of any contention that a continued
employment relationship was intolerable on account
of the applicant’s
behaviour. In my view, it cannot be said in the circumstances that
the applicant has any reasonable prospect
of success on review.
[15]
In view of the applicant’s failure to provide a full and
acceptable explanation for any inordinate delay in the prosecution
of
the review application, and having regard to the applicant’s
billable prospects of success in the review application,
the
application to condone the applicant’s non-compliance with the
rules of this court stands to be dismissed.
[16]
In relation to costs, this court has a broad discretion in terms of s
162 to make orders for costs according to the requirements
of the law
and fairness. The court does not ordinarily make orders for costs in
disputes that involve collective-bargaining partners,
particularly
where that order may prejudice a bargaining relationship. In the
present instance, the court must necessarily take
into account of the
following factors. First, the shoddy manner in which the review
application has been prosecuted and presented.
What is recorded above
in relation to the application for condonation speaks for itself. The
applicants dilatory conduct and its
failure to prosecute the review
with the required degree of diligence has had the consequence that
the employee, who was dismissed
more than four years ago, on 15
January 2014, is to wait that long for justice to prevail. The
failure by the applicant’s
representatives to prosecute the
application with diligence and in accordance with the professional
standards that are expected
by this court is the primary cause of the
delay. While it is correct that the bargaining council failed to
provide the record expeditiously,
it was incumbent on the applicant’s
representatives to place pressure on the bargaining council to comply
with its obligation
to furnish the record and to ensure that the
record was made available as a matter of urgency. Instead, it took
some nine months
for the complete record to be secured in
circumstances where it is apparent that the applicant’s
representatives pursued
the matter with no sense of urgency and
indeed, with some degree of leisure. Further, there is the better of
the failure by the
applicant’s representatives to have recourse
to the remedy available to them in terms of the practice manual. The
present
application was prosecuted as if the practice manual did not
exist. In all the circumstances, it seems to me that the interests
of
the law and fairness are best satisfied by the respondent paying the
costs of both of the application for review and the application
to
have the arbitration award made an order of court. The respondent's
representatives sought an order for costs on a punitive
scale. I am
satisfied however that the conduct of the applicant and its
representatives was not
mala fide
and that they were negligent
at most in the prosecution of this litigation.
[17]
Finally, as I have indicated above, the parties agree that the s 158
(1) (c) application stands to be determined by the outcome
of the
review. I intend therefore to order that the award be made an order
of court.
I
make the following order:
1. Condonation for
the late filing of the record of the proceedings under review is
refused.
2. The application
for review is dismissed.
3. The arbitration
award issued by the third respondent on 12 October 2015 is made an
order of Court in terms
of s 158 (1) (c) of the Labour Relations Act.
4. The applicant in
the review application is to pay the costs of both the review
application and the s 158 (1)
(c) application.
André
van Niekerk
Judge
REPRESENTATION
For
the applicant: Adv. PP Ferreira, instructed by Ledwaba Sam Inc.
For
the first respondent: Adv. S van Vuuren, instructed by Majang Inc.