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[2018] ZALCJHB 85
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Mvundlela v South African Road Passanger Bargaining Council (SARPBC) and Others (JR1693/13) [2018] ZALCJHB 85 (6 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
CASE NO: JR 1693/13
In
the matter between
SEDUPI
JACK
MVUNDLELA Applicant
and
SOUTH
AFRICAN ROAD PASSANGER
BARGAINING
COUNCIL (SARPBC)
First
Respondent
M
D ALLI N.O
Second
Respondent
PUTCO
LIMITED
Third
Respondent
Heard:
16 March 2017
Delivered:
6 February 2018
Summary:
The applicant’s conduct of refusing condonation of the late
filing of a rescission application based on the applicant’s
failure to give reasonable explanation for excessive delay is not
unreasonable.
JUDGMENT
Lallie,
J
[1]
This is an application to review and set aside a rescission ruling of
the second respondent who will be referred to as the arbitrator
in
this judgment. It is opposed by the third respondent.
[2]
The applicant was
employed by the third respondent as a bus driver. He was subjected to
a disciplinary enquiry and dismissed after
being involved in a
collision while driving one of the third respondent’s buses. He
referred an unfair dismissal dispute
to the first respondent. An
arbitrator, Mr J Tsabadi, acting under the auspices of the first
respondent dismissed the applicant’s
matter owing to the
failure of the applicant and his trade union official to attend
arbitration on 24 November 2011 after it had
been adjourned on 17
October 2011. The applicant filed an application for the rescission
of the dismissal ruling. The first respondent
required the applicant
to file an application for condonation of the late filing of his
rescission application. He complied. The
condonation and rescission
applications were decided by the arbitrator on the papers. He
dismissed both applications. In this application,
the applicant seeks
an order reviewing and setting aside the rescission ruling.
[3]
The applicant’s grounds for review are that the arbitrator
committed misconduct in relation to his duties as a commissioner.
He
committed an error of law and a gross irregularity in the conduct of
the arbitration and exceeded his powers. He disregarded
relevant
evidence and issued an unreasonable award. The third respondent’s
grounds for opposing the application are that
the applicant failed to
establish facts and legal grounds to have the rescission ruling
reviewed and set aside.
[4]
Two applications served before the arbitrator, namely, the
application for condonation of the late filing of the rescission
application as well as the rescission application. He considered the
condonation application first. He took into account that the
first
respondent received the rescission application on 28 March 2013 and
informed the applicant to file the condonation application
on 16
April 2013. Both applications were before the first respondent on 12
June 2013. The arbitrator considered that the ruling
dismissing the
applicant’s matter was issued on 29 November 2011 and sent by
registered mail to the address given by the
applicant in the referral
form. He noted that the applicant had 14 days to file his rescission
application. He, however, submitted
that he became aware of the award
in February 2013 but failed to give reasons for the delay in
following up on his matter and to
explain how and why he made
enquiries after more than 15 months of the issuing of the dismissal
award. The arbitrator found that
the condonation application was more
than 20 months late and that the applicant had not provided reasons
for deciding to follow
up on his matter after 15 months. He concluded
that without good reason for the delay, the applicant’s
prospects of success
became immaterial. He refused condonation and
dismissed the application for rescission.
[5]
The applicant’s main arguments were that the arbitrator erred
in finding that the dismissal ruling was forwarded to him
by
registered mail as his finding was not supported by evidence. He
submitted that the bargaining council’s efforts to send
him the
dismissal ruling by fax were unsuccessful. He insisted that he
complied with Rule 34 (1) of the bargaining council’s
rules in
that he filed his application for rescission with in the 14 day
prescribed period. He therefore argued that the arbitrator’s
conduct constituted misconduct which rendered his ruling reviewable.
The third respondent submitted that the applicant elected
to exclude
from his papers, a copy of the fax transmission report from the
bargaining council’s record reflecting that the
dismissal
ruling was successfully faxed on 9 March 2012, to the fax number
provided in his request for arbitration. It further
submitted that on
24 November 2011, the bargaining council informed Tiso of the
dismissal of the applicant’s matter and he
responded by
requesting a copy of the ruling. The applicant did not deny the
allegations in his replying affidavit. He sought to
rely on the
arbitrator’s conduct of deciding his rescission application on
technicalities and not on the merits.
[6]
The third respondent proved that the applicant’s main grounds
for review were untrue in that the bargaining council communicated
the dismissal of the applicant’s matter through the fax number
of the applicant’s choice and to his union representative
on 9
March 2012 and 24 November 2011 respectively. The applicant
filed his application for the rescission of a dismissal
ruling issued
on 29 November 2011 only on 28 March 2013. The arbitrator’s
error that the dismissal ruling was communicated
to the applicant by
registered mail instead of through fax did not have an impact on the
reasonableness of his ruling. It does
not affect the basis of his
decision that the dismissal ruling was communicated to the applicant
through the means of his choice.
Only errors which lead arbitrators
reach unreasonable decisions constitute valid grounds for review. The
applicant’s attempts
to conceal the truth were unsuccessful.
The arbitrator did not violate the bargaining council’s rules
in finding that the
rescission application was filed very late. The
arbitrator’s decision cannot be faulted because the dismissal
ruling
was forwarded to a fax number and representative of the
applicant’s choice. His decision refusing to condone excessive
lateness
in the absence of reasonable explanation cannot be faulted.
It is consistent with the following dictum in
Grootboom
v National Prosecuting Authority and Another
[1]
:
‘
[23]
It is now trite that condonation cannot be had for the mere asking. A
party seeking condonation must make out a case entitling
it to the
court’s indulgence. It must show sufficient cause. This
requires a party to give a full explanation for the non-compliance
with the rules or court’s directions. Of great significance,
the explanation must be reasonable enough to excuse the default.’
The arbitrator’s
error did not vitiate the award. The applicant failed to establish
valid grounds for review. His application
cannot succeed.
[8] In the premises, the
following order is made:
1.
The application for review is dismissed.
Z
Lallie
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant: Mr Mthimunye of Masombuka & Mthimunye
Attorneys
For
the Third Respondent: Mr Carr of Bowman Gilfillan Inc.
[1]
[2014] 1 BLLR 1
(CC) at para 23.