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[2018] ZALCJHB 272
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Bolton v Commission for Conciliation, Mediation and Arbitration and Others (JR1113/14) [2018] ZALCJHB 272 (24 August 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 1113/14
In
the matter between:
VAUGHN
MORGAN
BOLTON
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITTRATION
First
Respondent
ZAKHELE
MHLAMBO
N.O
Second
Respondent
SHOPRITE
CHECKERS (PTY)
LTD
Third
Respondent
Heard:
19 July 2018
Delivered:
24 August 2018
Summary:
This is a review application brought by the applicant for an order
reviewing and setting aside the award issued by the
second respondent
under the auspices of the first respondent under case number:
GATW3698-14 and granting the applicant condonation
for the late
referral of his unfair dismissal dispute.
JUDGMENT
SEDILE.
AJ
Background
[1]
The applicant was previously employed as the Divisional Meat Markets
Manager: Hyper Checkers, Gauteng Division for a period
of 30 years
with the third respondent. During September 2012 the third respondent
received a number of complaints from a supplier,
East Rand Meat Mecca
regarding alleged irregularities by the applicant.
[2]
The third respondent started investigating these allegations.
In June 2013 it discovered a large number of irregularities.
On 12
July 2013 the applicant was issued with a notice to attend a
disciplinary hearing. The notice listed a litany of irregularities
on
the part of the applicant. The third respondent appointed an
independent chairperson, Mr Matheta Swafo of the Sebata Dispute
Settlement Agency to hear the enquiry.
[3]
The enquiry was heard on 5, 6 and 7 August 2013. On 14 August 2013 Mr
Swafo issued a disciplinary hearing report, finding the
applicant
guilty of nine of the eleven allegations against him. Importantly he
found that the evidence led at the disciplinary
enquiry pointed to
possible criminal activities on the part of the applicant that would
require further investigation and for possible
referral to law
enforcement agencies.
[4]
After considering mitigating and aggravating circumstances the
chairperson recommended a sanction of dismissal. On 20 August
2013
the third respondent, accepting the recommendation and informed the
applicant of the termination of his services.
[5]
In terms of
Section 191(1)(a)(i) of the Labour relations Act
[1]
(the LRA), the applicant was obliged to refer a dispute to the
Commission for Conciliation Mediation and Arbitration (CCMA) within
30 days of his dismissal, which meant by no later than 19 September
2013.
[6]
The applicant referred his dispute to the CCMA on 20 March 2014 and
also filed an Application for Condonation of the late filing
of the
application. On 3 April 2014 the third respondent filed an Answering
Affidavit in opposition to the Application for Condonation.
[7]
The matter was set down for argument on 9 April 2014 before Zakhele
Mhlambo, the second respondent. On the morning of 9 April
2014, the
applicant’s Replying Affidavit was served on the third
respondent’s attorneys at the CCMA Pretoria, prior
to the
hearing of the matter. The legal representatives of both parties
argued the matter before the second respondent.
[8]
On or about 23 April 2014, the second respondent issued a ruling
refusing the applicant’s Condonation Application.
Grounds
for review
[9]
The applicant contended that any other commissioner reasonably
applying his/her mind to the application in its entirety, would
have
concluded:
9.1 That a reasonable and
cogent explanation for the lengthy delay in lodging the unfair
dismissal dispute was given by the applicant;
9.2 That the factual
averments made by the applicant pertaining to the charges preferred
against him at the disciplinary hearing
demonstrates strong prospects
of success in defending the charges; and
9.3 That the prejudice
the applicant stood to suffer should the condonation not be granted,
outweighed any prejudice that the third
respondent stood to suffer;
9.4 That the second
respondent had no regard to the circumstances as to why the applicant
initially did not declare the dispute
and was wrong in law and in
fact in holding that the reasons for the delay fell “
outside
the jurisdiction of the CCMA
”.
Submissions
by the parties
[10]
The applicant submits that the second respondent holds, without
substantiating same, that the applicant did not place any “
credible
considerations
” before him to which he could apply his mind
in considering the cause for the delay. Further, that the
second respondent
properly applied his mind to the facts before him,
he found that a cogent explanation was given by the applicant
thereto.
[11]
The third respondent is opposing the application in its entirety.
Analysis
and conclusion
[12]
The applicant’s referral of the dispute to the CCMA was made
after a period of six months, after he was dismissed on
20 August
2013. The said dispute was only referred on 20 March 2014 and
the applicant was duly assisted by his attorney.
[13]
During the six months’ period, the applicant had no desire to
pursue this case as he had no further interest in prosecuting
his
innocence against the allegations made against him.
[14]
What triggered the applicant’s mind and change of heart some
five months later, to refer the matter to the CCMA, was
the third
respondent’s decision to bring a civil claim in the High Court
against the applicant for the recovery of his losses.
[15]
The third respondent simultaneously made a request to the Retail
Provident Fund to withhold payment to him of his withdrawal
benefits,
pending the finalisation of the civil claim and as well as the
criminal case brought against him by the third respondent
as per the
initial recommendations made by the chairperson during his
disciplinary hearing.
[16]
The CCMA clearly is not a court law, it is a tribunal established in
terms of the LRA and the decision made by the CCMA must
be within the
confines of the LRA and therefore a decision made by the Pension
Funds Adjudicator will have no bearing in the decision
making by the
CCMA as the latter has no jurisdiction thereto.
[17]
Clearly the decision to initiate the proceedings at the CCMA was an
afterthought, triggered by the non-payment of pension fund
benefits
to the applicant as the latter was disinterested in challenging the
fairness of his dismissal for close to five months.
The applicant was
required to have declared the unfair dismissal dispute within thirty
days after his dismissal from his employment.
[18]
The degree of six months is inordinate in that the applicant was a
manager and fully conversant with the time limits available
for him
to challenge his dismissal at the CCMA.
[19]
Insofar as the applicant’s prospects of success are concerned,
it is clear that from a number of judgments by the Labour
Appeal
Court, that it is not sufficient simply to plead one or more
irregularities or misdirection on the part of an arbitrator.
[20]
First, not all irregularities in the conduct of the arbitration
proceedings contribute gross irregularities or misconduct for
the
purposes of section 145 of the LRA. The irregularity or misdirection
relied upon must render the outcome of the proceedings
unreasonable,
in the sense that a reasonable decision maker could not reach the
decision to which the arbitrator came in light
of all the evidence
before him/her.
[21]
The applicant in the present instance have not pleaded any proper
factual basis on which he submits that the second respondent
committed any gross irregularity in the conduct of the proceedings
under review. Further there is no averment in the founding affidavit
to the effect that the outcome of the proceedings failed to meet the
reasonableness threshold as described above.
[22]
In the circumstances, the applicant patently failed to make out a
proper case for review on the papers and in his arguments
during the
hearing of the matter and their prospects of success, if they exist
at all.
[23]
For the above reasons, I make the following order:
Order
1. Condonation is
refused;
2. The review application
is dismissed;
3. The applicant is
ordered to pay costs.
P.
Sedile
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For
the applicant: M. Henning of Martin Henning Attorneys
For
the respondent: J. Jorge of Cliffe Dekker Hofmeyr Attorneys
[1]
66 of 1995, as amended.