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[2018] ZALCJHB 195
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Mabaso v Motor Industry Bargaining Council and Others (JR2589/17) [2018] ZALCJHB 195 (22 May 2018)
Not
reportable
THE LABOUR COURT OF
SOUTH AFRICA,
HELD AT JOHANNESBURG
Case no: JR 2589/17
In
the matter between:
DERICK MABASO
Applicant
and
MOTOR INDUSTRY
BARGAINING
COUNCIL
First
Respondent
COMMISSIONER Y
NAGDEE (
N.O.
)
Second
Respondent
LOMBARD
TYRES (PTY) LTD
Third
Respondent
Heard
:
15 May 2018
Delivered
:
22 May 2018
Summary:
(review-condonation ruling-explanation for delay seriously
incomplete- -delay considerable- allegations
on merits made by
respondent not contested - ruling not unreasonable on the evidence
before the arbitrator)
JUDGMENT
LAGRANGE
J
Background
[1]
This is an application to review a condonation ruling. The
application was belatedly opposed, but the employer’s
representative
agreed to argue the application without filing an
answering affidavit.
[2]
The applicant was dismissed on 21 March 2017 and only referred his
dispute on 6 July 2017. As a result, his referral was nearly
two and
a half months’ late or, to put it differently, it took him 3.5
months to refer his dispute. The referral application
was allegedly
made on 15 May 2017, but there was no proof of it being filed at the
bargaining council. It was only on 6 July 2017
that it was properly
filed together with a condonation application. The third respondent
(‘Lombard) alleged in its answering
affidavit that it never
received a copy of the referral itself and pointed out that the
applicant never indicated what the incorrect
email address was that
he had used, nor did he provide any proof that he had referred the
document to an incorrect address and
it had not been received.
Lombard also alleged that the applicant had been legally represented
but his legal representatives had
not provided any explanation for
the delay. Lombard also alleged that the applicant had been dismissed
after being found guilty
of dishonesty and unauthorised possession of
company property and moreover that he had conceded to the allegations
against him
at his disciplinary hearing. As the applicant did not
file any replying affidavit in the condonation application, none of
these
allegations were disputed in the evidence before the
arbitrator.
[3]
As this is a review application, the court cannot take account of any
evidence that was not already placed before the arbitrator.
Thus,
during the hearing of the application, the applicant gave extensive
details of his interaction with various lawyers who assisted
him in
the dispute referral process to the bargaining council. However, none
of these interactions were mentioned in his founding
affidavit in
support of his condonation application to the bargaining council. As
a result, any possible impact the applicant’s
account of those
interactions might have had on the arbitrator’s ruling if the
applicant had placed them before the arbitrator,
cannot be
considered. The court must decide whether the arbitrator’s
decision is one that no reasonable arbitrator could
have reached on
the evidence before him at the time he made his ruling. Further
evidence mentioned in court was never part of the
evidence before the
arbitrator and must be ignored for the purposes of this application.
The
ruling
[4]
The arbitrator accepted that he referred the dispute on 15 May 2017
and was directed to file a condonation application which
he did on 6
July. However, the arbitrator found that the explanation for the
delay was incomplete and that his prospects of success
were
non-existent.
Grounds of review:
[5]
The applicant advanced three grounds of review, namely:
5.1
the arbitrator failed to consider ‘crucial’ evidence that
he called the bargaining
council on 19 April to enquire about the
process of referring his dispute;
5.2
the arbitrator failed to take into account the bargaining council’s
contribution to the
delay caused by giving him the wrong contact
details, and
5.3
the arbitrator was unreasonable in concluding that the delay was
excessive and that a proper explanation
was not provided.
Analysis:
[6]
The first point to make is that, the applicant never alleged in his
founding affidavit in support of the condonation application
that he
had made enquiries at the bargaining council about the referral
process on 19 April 2017. Secondly, on the face of the
documentation,
which he did not refer to, his attorneys at the time emailed a
document to Lombard on the same date. Furthermore,
it appears that
attorneys referred his case to the bargaining council on 28 June
2017. This tends to corroborate the allegation
made by Lombard that
the applicant was represented during the period when all these delays
took place, but the role of those representatives
in the delay is not
dealt with at all in the applicant founding affidavit. The affidavit
is woefully short on details explaining
the whole period of the
delay, which was considerable. Just a few things which are missing
from the explanation can be mentioned
to illustrate the shortfall in
his justification for the delay. There is no indication in his
affidavit when or how he learned
that he had allegedly referred the
dispute to the wrong email address of the DRC. As a result, there was
no indication how quickly
he rectified the situation once he learned
of this. He is also silent on the role of attorneys who clearly
played a role in the
whole referral process from April until the end
of June.
[7]
In consequence of this, I cannot say that the arbitrator was
unreasonable in concluding that there was not a satisfactory
explanation
for the delay on the evidence that was placed before him.
I must emphasise again, it may be that there was a good explanation,
which the applicant could have provided, but he simply did not place
the details of such an explanation before the arbitrator to
consider.
Accordingly, the arbitrator cannot be criticised for his findings
when he was presented with extremely limited material
to explain the
delay.
[8]
Secondly, in relation to the arbitrator’s findings on the
prospects of success, it is important to note that on the evidence
of
Lombard’s answering affidavit in the condonation application,
the applicant had agreed to the allegations against him
in the
disciplinary enquiry. This is because the applicant did not file a
replying affidavit disputing that claim by Lombard. On
what was
placed before him in the affidavits, it is difficult to find fault
with the arbitrator’s finding that the applicant’s
prospects of success were very poor.
[9]
In conclusion, the two main findings of the arbitrator that the
significant delay was not satisfactorily explained and the prospects
of success were poor were not ones that no reasonable arbitrator
could have reached on the evidence before him. Accordingly, the
applicants review application cannot succeed.
Order
[1]
The review application is dismissed.
[2]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
In
person
THIRD
RESPONDENT:
M
Losos