About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2018
>>
[2018] ZALCCT 16
|
|
Kellerman v Commission for Conciliation, Mediation and Arbitration and Others (C312/2017) [2018] ZALCCT 16 (16 May 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
no: C312/2017
In the
matter between
ROBERT
ADRIAAN
KELLERMAN
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First
Respondent
HOWARD
ADAMS
Second Respondent
ATTIX
UK LTD TRADING AS
REDSTOR
Third Respondent
Heard: 14 March 2018
Delivered: 16 May 2018
JUDGMENT
RABKIN-NAICKER J
[1]
This is an opposed application to review a condonation ruling by the
second respondent (the Commissioner). In the Ruling, condonation
was
denied for the late filing of a referral to the CCMA. The referral
alleged an unfair labour practice relating to demotion.
The referral
was filed on the 3 March 2017.
[2]
The referral was 51 days late acc
ording to the Commissioner.
He based this finding on the applicant’s averments in the
condonation application before him i.e.
that the third respondent
(the company) promoted one ‘Casten’ and demoted the
applicant on the 1 October 2016. The
applicant submits that the
Commissioner should have found the date that the dispute arose to be
that of his final retrenchment
around the 24 and 30 January 2017.
[3]
In as far as the Applicant challenges the Commissioner’s
finding on the extent of the delay in the papers before me, I
do not
find the Commissioners finding reviewable. The delay was lengthy and
the applicant’s explanation for it unconvincing,
as the
Commissioner records, his explanation was that: “…he
initially was confused by the ‘Respondent’s
irrational
and chaotic restructuring process’ and that he only became
aware of the alleged unfair labour practice in the
form of an unfair
demotion and provision of benefits when the Applicant was informed of
his alleged unfair retrenchment on 24 and
30 January 2017. These
dates should be regarded as the act when the alleged unfair labour
practice commenced and therefore condonation
should not be required.”
[4]
In his affidavit before this Court, the applicant again tacitly
acknowledges that the alleged unfair labour practice occurred
at
least on 1 October 2016. He avers in paragraph 49 of the affidavit
that:
“
It
is submitted that my unfair dismissal by the respondent, just a few
days after my one-on-one with Paul Evans, when I objected
to and
raised questions about Craig Casten and the “restructuring
process”, serves as prima facie evidence that I acted
wisely
since 27 September 2016, by not objecting heavily against the
Respondent’s unfair labour practices. I truly believe
that had
I done so, I would have been unfairly dismissed in 2016 already.”
[5]
The Commissioner’s finding on the length of the delay and the
poor explanation for it is thus entirely reasonable in
the Court’s
view. In his Ruling, the Commissioner did not simply deal with the
delay and reasons therefore, he also considered
the prospects of
success in the unfair labour practice dispute. He summarises the
contents of the affidavits before him as well
as the submissions of
the parties at the condonation hearing
inter alia
as follows:
“
PROSPECTS OF
SUCCESS
Applicant
19.
According to the Applicant he had good prospects of success as the
Respondent refused to supply him with vital information including
proof that the Applicant had consented to his employment contract
being amended and the employment agreement of Craig Casten.
20.
It was furthermore submitted on behalf of the Applicant that the
Respondent’s averment that the Applicant had accepted
his new
position was the opinion of a third party which had no first hand
knowledge of the Applicant’s working environment
and should be
rejected as hearsay evidence.
Respondent
21.
The Respondent submitted that the Applicant had never been demoted as
he was still earning the same salary. His new position
included many
of his old responsibilities and he had responded positively to his
new position and excelled in it. The Applicant’s
new position
was in actual fact an increase in status. He had in actual fact
introduced himself as the Head of Retention Marketing.
22.
The Applicant was not being prejudiced by not being provided with the
requested information and there were other avenues that
he could have
explored to request this information.”
[6]
The Commissioner’s found as follows in reference to the
prospects of success that:
“
27.
This brings us to the prospects of success for the alleged unfair
demotion. The Applicant’s salary
was left untouched and
although his job description had now been altered none of his new
roles gave the impression that his altered
job description had now
led to a reduction in his status. The Applicant seemed more concerned
with the appointment of Craig Casten
as the Head of Marketing as he
was of the view that he was not suitably qualified to hold such a
position.
28.
Craig Casten was not appointed in a new position but in the Position
of Head of Marketing, a position previously held by Tony
Ruane.
29.
It is therefore my finding that the Applicant’s prospects of
success are in doubt as far as the alleged demotion is concerned.
This combined with a lengthy delay and inadequate explanation for it,
leads me to find that the Applicant had failed to establish
good
cause why condonation for his late referral of the alleged unfair
demotion should be granted.”
[7]
in the courts view, the finding above, taking into account the
evidence before the Commissioner, is well within the bounds of
reasonableness and not susceptible to review.
[8]
The applicant’s further grounds for review are difficult to
discern but appear to be based on the concept that the Commissioner,
by basing his ruling on evidence received ‘in breach of the
parole evidence rule’, committed a reviewable irregularity.
It
would seem that the applicant is objecting to the Ruling being based
on the evidence contained in the affidavits filed in respect
of the
application for condonation. Such a procedure is prescribed in terms
of the rules of the CCMA, in particular Rule 31. The
parties also
made oral submissions in a hearing in reference to their sworn
affidavits. There is no merit in this ground of review.
[9]
In all the circumstances, the application to review the ruling cannot
succeed. I am not inclined to make a costs order in this
matter given
that the applicant is an individual. I make the following order:
Order
1.
The review application is dismissed.
2.
There is no order as to costs.
________________
H. Rabkin-Naicker
Judge of the Labour Court
Appearances
For
the Applicant: Guthrie and Theron Attorneys
For
Third Respondent: Coen de Kock instructed by Bagraims
Attorneys