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[2018] ZALCJHB 259
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Commissioner of South African Police Services and Another v Mokone and Others (JR1544/16) [2018] ZALCJHB 259 (16 August 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
case
no: JR 1544/16
In the matter between:
THE COMMISSIONER OF SOUTH
AFRICAN
POLICE
SERVICES
First
Applicant
THE PROVINCIAL COMMISSIONER OF
POLICE
Second
Applicant
and
KEKANA
GERT
MOKONE
First
Respondent
THE
SAFETY AND SECURITY SECTORAL
BARGAINING
COUNCIL
(SSSBC)
Second
Respondent
PRINCE
KEKANA
N.O
Third
Respondent
Heard: 08 May 2018
Delivered: 16 August 2018
JUDGMENT
MAHOSI .J
Introduction
[1]
This is an application in terms of section 158(1)(g) of the Labour
Relations Act (LRA)
[1]
for an order
reviewing and setting aside the condonation ruling issued by the
third respondent (arbitrator) acting under the auspices
of the second
respondent (SSSBC), dated 17 June 2016 under case reference number
PSSS 487-13/14.
In
his ruling, the arbitrator ruled that there was no need for
condonation. The arbitrator further directed that the unfair
dismissal
dispute be set down for arbitration.
[2]
Aggrieved by this ruling, the applicants launched this application.
[3]
The applicants have sought condonation for the late filing of this
application which is some seven days late. I have considered
the
reasons proffered by Mr Mafanyane, the applicants’ legal
administration officer and deponent to the founding affidavit,
and I
am satisfied that they are reasonable. The delay is in my view not
excessive, and condonation is hereby granted.
The parties
[4]
The first applicant is the Commissioner of the South African Police
Services (SAPS) and the second applicant is the Provincial
Commissioner of Police (Provincial Commissioner). Both will
collectively be referred to as the applicants in this judgment.
[5]
The first respondent is Mr Kekane Gert Mokone who will be referred to
as the employee in this judgment. The third respondent
is Prince
Kekana, a commissioner under the auspices of the second respondent,
and whom I will refer to as the arbitrator.
Material background facts
[6]
The employee was employed by the South African Police Services as a
Warrant Officer. He was charged with misconduct relating
to stock
theft and following an internal disciplinary enquiry, the employee
was dismissed on 15 February 2012, subject to the endorsement
by the
Provincial Commissioner. Concurrently, he was criminally charged,
found guilty of stock theft by a magistrate court and
was ordered to
pay a fine.
[7] The employee assisted by his union
enquired about the progress of the confirmation of the dismissal by
the Provincial Commissioner
and launched an internal appeal on 14
August 2013. The appeals committee informed the employee in a letter
dated 05 December 2013
that his appeal was launched outside of the
prescribed time limits as provided for in Regulation 15(5) of the
SAPS disciplinary
regulations and that he had to apply for
condonation thereof. The employee did not file the condonation
application with the appeals
committee. Instead, he filed an unfair
dismissal dispute before SSSBC on 05 December 2013.
[5]
The dispute was set down for con/arb process and was conciliated
unsuccessfully. Commissioner Jana Burger, then issued an outcome
report in which the following was stated:
‘
The
dispute was not referred to SSSBC within the required 30 day period
and the parties themselves are not sure of the date of referral.
The
applicant indicated that they wanted to apply for condonation, but
was unable to do so on 14 March as they needed time to collect
information attached to the application for condonation.
The
case was postponed and applicant was directed to file an application
for condonation on/or before 28 March 2014. The respondents
may file
its opposing papers, if any, on/or before 4 April 2014. The
certificate of outcome could not be issued as the council
does not
have jurisdiction until such time that condonation is granted.’
[6]
Accordingly, the employee filed his application for condonation and
the applicant filed its opposing papers. The arbitrator
considered
the written submissions and issued his ruling on 17 June 2016.
Condonation Ruling
[13]
In his ruling, the arbitrator found that there was no proof that the
employee had been informed of his dismissal and therefore
there was
no need on the part of the employee to apply for condonation. The
arbitrator further found that the applicants had not
been without
fault as they had contributed in delaying the finalisation of the
dismissal dispute internally.
[14]
The applicants contended in their
founding affidavit that the confirmation of the dismissal by the
Provincial Commissioner was communicated
to the employee through a
letter dated 05 March 2011 and further that he (the employee)
acknowledged receipt thereof on 24 April
2012. The employee, on the
other hand, disputes knowledge or acceptance of the said letter.
[15]
This letter was held by the
arbitrator to be defective on the basis that it had the
discrepancies, in that it is dated 2011 whereas
the dismissal
occurred in 2012. This was explained by the applicants as simply a
typographical error and they contended that the
arbitrator ought to
have ignored the discrepancy as the contents of the letter relate to
the events of 2012.
[16]
The arbitrator’s finding in
this regard as implausible. In the modern day world, everyone is
susceptible to typographical
errors. For the arbitrator to hold this
view is unfortunate. However, from the reading of the ruling, this
‘defect’
does not seem to be an isolated determining
factor considered by the arbitrator. The arbitrator further found
that there was no
proof before him that the employee indeed became
aware of the Provincial Commissioner’s confirmation as
contended by the
applicants.
[17]
What was before the arbitrator was a
dispute of fact relating to the date on which the employee became
aware of the confirmation
of his dismissal.
As
a result, the arbitrator concluded that there was no evidence before
him that the employee became aware of the confirmation of
his
dismissal. In my view, this finding is reasonable. No evidence of who
served the letter on the employee or his representatives
or who
acknowledged receipt of the letter was placed before the arbitrator.
[18]
Furthermore, the argument that the
employee ought to have exhausted internal remedies speaks to the
merits of the matter, which
can be properly ventilated at
arbitration.
[19]
In my view, the ruling of the
arbitrator is reasonable, and there is no prejudice to be suffered by
any of the parties to have the
matter argued at arbitration as ruled
by the arbitrator.
[20] In the circumstances, I make the
following order.
Order
1.
The condonation for the late filing of the
review application is granted;
2.
The application to review the condonation
ruling is dismissed;
3.
There is no order as to costs.
_____________
D. Mahosi
Judge of the Labour Court
Appearances:
For the applicant: Advocate C. Batz
Instructed by State Attorney
Bloemfontein
For
the third respondent: Mr Gouws of Johan Gouws Attorneys
[1]
Act 66 of
1995 as amended