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[2019] ZALCJHB 61
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Mokotedi v Eskom Holdings SOC Limited and Others (JR450/16) [2019] ZALCJHB 61 (29 March 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JR 450/16
In
the matter between:
KGAOGELO
MOKOTEDI
Applicant
and
ESKOM
HOLDINGS SOC LIMITED
First Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second Respondent
JOYCE
NKOPANE
N.
O
Third Respondent
BONGANI
KHUMALO
N.O
Fourth Respondent
Heard:
17 October 2018
Delivered:
29 March 2019
Summary:
Condonation applications granted. Review application is granted.
JUDGMENT
MABASO,
AJ
Introduction:
[1]
The applicant seeks an order in the following terms:
“
Declaring
that, the applicant's referral of this review application to this
Honourable Court is not late, alternatively, condoning
its late
referral.
Reviewing
and setting aside the ruling by the third respondent, to the effect
that the referral of the dispute to the CCMA is late,
Declaring
that the applicant's referral of the dispute to the CCMA is not late,
alternatively, condoning its late referral,
Referring
the dispute back to the second respondent, for determination by the
Commissioner other than the fourth respondent,
Alternative
to the above two orders,
Setting
aside the ruling of the fourth respondent dismissing the application
for condonation of the late referral of this dispute
to the second
respondent (the CCMA),
Reviewing
and setting aside the ruling of the fourth respondent, made under
case number GAJB 12698/2015, and dated t 18 January
2016, in terms of
which the arbitrator dismissed the applicant's condonation
application,
Substituting
therefor, an order condoning the applicants late referral of this
dispute to the CCMA,
Referring
the dispute back to the second respondent, for determination by the
Commissioner other than the fourth respondent”.
Condonation
for the late delivery of both the review application and answering
affidavit
[2]
The review application was delivered on 11 March 2016. The applicant
avers that she
received the condonation ruling on 28 January 2016,
whereas the ruling by Commissioner Nkopane (the first ruling) was
made orally
on 28 October 2015. The delivery of the review
application of the condonation ruling is one day out of the normal
six-weeks’
period. The delay is not inordinate and I grant
condonation for the late delivery of the review application against
the condonation
ruling. However, the review application of the first
ruling is out of time as it was filed beyond the prescribed six-week
period.
Considering the explanation provided and that the first
ruling is interrelated to the condonation ruling, it is my view that
it
was going to cause a further delay if the applicant had approached
this court before the condonation ruling, at the CCMA, could
be
issued. Under those circumstances, I am satisfied with the
explanation given; therefore I am also inclined to grant the
condonation
for the late delivery of the review of the first ruling.
[3]
The first respondent delivered a separate condonation application for
the late delivery
of its answering affidavit. On 8 December 2016, the
applicant in the review application delivered the notice in terms of
rule 7A
(8) of the rules of this Court. Any party herein that
intended to oppose the review application was expected to deliver
their opposing
papers by no later than 22 December 2016. Before this
date, both the applicant and the first respondent had agreed that the
answering
affidavit was to be delivered by no later than 9 January
2017. However, the first respondent only delivered it on 29 January
2017.
The reason proffered is that there was an oversight on the part
of its attorneys’ offices. The applicant is opposing this
condonation application.
[4]
Considering that the delay is less than twelve days from the date
when the answering
affidavit was due, and that the reason proffered
is that it was an administrative oversight, I am inclined to grant
condonation
for the late delivery of the answering affidavit.
Oversight happens daily and dismissing the application based on this
oversight
would not be in the interests of justice.
Brief
background:
[5]
The applicant declared an unfair labour practice dispute against the
first respondent,
based on disparities in payment of benefits. The
Commission for Conciliation, Mediation and Arbitration (CCMA) set the
matter down
for Con/Arb on 14 July 2015. On 7 July 2015, the first
respondent delivered a notice objecting to the arbitration commencing
immediately
after conciliation. Conciliation took place as scheduled,
but remained unresolved, and the conciliating Commissioner issued a
certificate
of outcome.
[6]
On 28 August 2015, the applicant referred the dispute to arbitration
which the CCMA
proceeded to set it down for 12 October 2015. On or
about 9 October 2015, the first respondent delivered an application,
titled
‘jurisdictional point’ wherein it complained that
the true nature of the dispute is one of equal pay for equal work,
therefore, the CCMA has no automatic jurisdiction to arbitrate it.
The second point is that the dispute had been referred to
conciliation
outside the reasonable period or 90 days from the date
of the dispute, therefore as the applicant had not applied for
condonation
“
the CCMA has not determined whether or not it
has jurisdiction from the onset of this proceedings.
” The
applicant delivered an answering affidavit incorporating therein a
condonation application wherein she,
inter alia,
averred, that
since a conciliation certificate has been issued “it is not
open to the [first respondent] to challenge the
referral”.
Whether or not the CCMA had jurisdiction to entertain this point
after the conciliation process is not one of
the points raised by the
applicant before this Court.
[7]
Commissioner Nkopane was appointed to determine whether the dispute
was referred to
the CCMA out of time or not. On 28 October 2015,
Commissioner Nkopane concluded that the dispute by the applicant was
referred
to the CCMA out of time, referring to the provision of
section 191 (1) of the Labour Relations Act
[1]
(LRA), which provides that if there is a dispute about an unfair
labour practice, the employee alleging such conduct may refer
such
dispute to the CCMA within 90 days of the act (either commission or
omission).
[9]
As Commissioner Nkopane had deferred the issue of condonation, which
the applicant
had incorporated as an alternative, the CCMA appointed
Commissioner Khumalo to decide on this point. The applicant and her
attorneys
did not attend the sitting of 11 January 2016, but the
first respondent was represented.
[10]
Commissioner Khumalo, in the condonation ruling, found that on or
about 29 October 2013, the
applicant's manager submitted an
application that her allowance be increased after establishing that
her other colleagues were
earning more than her. This application was
declined on or about 7 November 2013. According to him, this is the
date that the dispute
arose. Therefore, he concluded that the
referral to the CCMA was about 450 days’ late and that the
applicant had failed to
provide a fully detailed and accurate account
of the causes of the delay. According to Commissioner Khumalo, the
explanation given
was unreasonable. He concluded that the applicant’s
claim is one of equal work for equal pay. He then proceeded to
dismiss
the dispute.
[11]
In the founding papers, the applicant contends that her attorneys
were not notified of the set
down of 11 January 2016. In paragraph 46
of the same affidavit, she contends that the dispute before the CCMA
was about an unfair
labour practice as it involves the payment of car
allowance permitted to her.
Grounds
for Review
[12]
The grounds of review are summed up as follows. Commissioner Khumalo
committed a reviewable irregularity
when he proceeded to hear the
matter without the applicant present as the CCMA had failed to notify
her attorneys of record of
the set down date, and committed a
reviewable irregularity in concluding that the date on which the
unfair labour practice arose
is 7 November 2013, when the third
respondent had already ruled on this point.
[13]
The findings by Commissioner Khumalo that the dispute arose in 2013
was factually wrong, as the first
respondent did not notify the
applicant of its decision on the grievance, as it did not give
reasons for not paying the applicant
the same amount of allowance as
her colleagues, the reasons were only provided in March 2015.
[14]
The applicant further contends that the alleged unfair labour
practice is a continuous act. The
first respondent was continuously
paying her less allowance than her colleagues.
[15]
The applicant contends that both Commissioners misunderstood the
issue before them, as the issue
was about the reason for being paid
lesser allowance which constitutes an unfair labour practice.
[16]
In my view, whether the issue before the CCMA was about an unfair
labour practice or equal work
for equal pay is not important, but
what is important is the date that the alleged dispute arose. The
issue before the Commissioners
that had to be decided was the date of
the alleged conduct. Therefore, questions are, whether the dispute
was referred out of time?
If so, can this Court interfere with the
discretion of Commissioner Khumalo?
Was
the dispute referred out of time?
[17]
Before answering this question, it is necessary to reiterate that
among other things, the purpose
of the LRA is to promote effective
resolution of labour disputes.
[18]
What is of paramount importance is section 191 of the LRA. In the
case of an unfair dismissal,
an employee would have 30 days from the
date of dismissal to refer the dispute to the relevant forum.
However, in respect of an
unfair labour practice, an employee has 90
days from the date of the act (either commission or omission), to
refer a dispute and
if it is a later date, such dispute should be
declared within 90 days on which the employee became aware of the
"act or occurrence".
[19]
In terms of the referral form, the applicant wrote the date of
dispute as being 31 March 2015.
In the application for condonation
before the CCMA, the applicant affidavit reads thus:
“
on
29
October 2013
,
my manager, Siyanda Radebe, requested me to apply for increase of my
car allowance, to bring it in line with my core project finance
officers, as there was no reason why my car allowance should be lower
than theirs, when I was no less qualified for it than them.”
[2]
[20]
The applicant contends that there was no reason given as to why she
was treated differently.
I am of the view that the reason behind the
differentiation cannot interrupt the 90 days as envisaged by the LRA.
[21]
I need to pause here and mention that the applicant’s emphasis
on the point that the alleged
unfair labour practice dispute based on
benefits herein is a continuous act, she relies on the LAC’s
instructive case of
the
SABC
Ltd v CCMA and Others
[3]
where it was held that,
“
The
ruling of the Commissioner would, therefore, be open to be reviewed
and set aside if the dispute constituting the unfair labour
practice
was said to occur in 1998 as alleged by the appellant. The problem,
however, is that the argument presented by the appellant
is premised
upon the belief that the unfair labour practice/unfair discrimination
consisted of a single act. There is, however,
no basis to justify
such belief. While an unfair labour practice/unfair discrimination
may consist of a single act it may also
be continuous, continuing or
repetitive. For example, where an employer selects an employee on the
basis of race to be awarded
a once-off bonus this could possibly
constitute a single act of unfair labour practice or unfair
discrimination because like a
dismissal the unfair labour practice
commences and ends at a given time. But, where an employer decides to
pay its employees who
are similarly qualified with similar experience
performing similar duties different wages based on race or any other
arbitrary
grounds, then notwithstanding the fact that the employer
implemented the differential on a particular date, the discrimination
is continual and repetitive. The discrimination, in the latter case,
has no end and is, therefore, ongoing and will only terminate
when
the employer stops implementing the different wages. Each time the
employer pays one of its employees more than the other
he is evincing
continued discrimination.
And
Hence
in the present matter the date of dispute does not have to coincide
with the date upon which the unfair labour practice/ unfair
discrimination commenced because it is not a single act of
discrimination but one which is repeated monthly
. In the
circumstances the dispute being labelled as ongoing was an accurate
description of the “dispute date” and the
decision
arrived at by the commissioner that there was no need for the
respondent to seek condonation was correct.
[22]
The latter paragraph does not suggest that there is a new principle
in our law that each unfair
labour practice would amount to a
continuous act and that each court faced with unfair labour practice
dispute must conclude that
it is a continuous conduct. One has to
take into account the facts of each case, and considering that this
is a reviewing Court
which is confined to the dispute that is before
it.
[23]
In
casu
, in paragraph 33 of the founding affidavit before the
CCMA, which was before the Commissioners when they decided that the
referral
was out of time, the applicant avers that,
“
my
contention is that the applicant is committed, and
is still
committing
, and unfair labour practice against me as I
explained above…”
Considering this
submission and what the LAC in
SABC
above said, I am of the
view that the commissioners should have investigated this, because
the LAC’s judgment is salutary.
[24]
Before deciding as to whether condonation application should be
granted or not, the first question
that has to be asked by a
commissioner is whether or not condonation was necessary. If it is
found that there was no need for condonation
then that should be the
end of the enquiry.
[25]
The LAC in
Kungwini
Residential Estate and Adventure Sport Centre Limited v Mhlongo NO
and Others
[4]
held
that where the commissioner hears and determines an application for
condonation without notice to one of the parties involved
in
such dispute, it will amount to ignorance of the
audi
alteram partem
rule, and if there is prejudice, meaning there must have been
something that the party who was absent wanted to raise or might
have
brought to the attention of the commissioner, the Court held:
[5]
‘
However,
I do not think that this provision can possibly be relied upon to
dispense with the giving of notice to the parties, or
at least to the
applicant if the respondent is in default, of the commissioner’s
intention to hear a matter. For a commissioner
to hear and determine
an application for condonation without notice to the parties would be
to ignore the
audi alterem partem
rule. There is no indication
in the papers that any such notice was given to either the third
respondent, who had applied for condonation
or the appellant.
Although it may be argued that it was not necessary to give notice to
the appellant, since, although it was a
party as contemplated by Rule
31, it had not given notice of intention to oppose the application
(leaving aside Annexure A), the
same cannot be said about notice to
the third respondent. Had notice of the intention to hear the
condonation application been
given to the third respondent legal
representative, Hawyes,
he would surely have had an obligation
to call Annexure A to the attention of the CCMA
or at least
to advise the appellants attorneys of the set down of the
application. Had that occurred it is unlikely that the CONDONATION
RULING would have been made in the absence of both parties and the
huge wastage of time and effort which has occurred in this matter
would have been avoided.’
[26]
The applicant, as stated above, contended that her attorneys were not
served with a notice of
set down for the hearing of the condonation
application, therefore, they were not in attendance at the CCMA
because of this reason.
The third respondent submits that under those
circumstances, the applicant should have brought a rescission
application in terms
of section 144 of the LRA, and not a review
application. The first respondent correctly referred this Court to
the decision in
Bloem
Water Board v Nthako NO and Others
[6]
where
the LAC held that a review application, where a matter should have
been dealt with by way of section 144, is permissible under
exceptional circumstances. The starting point in deciding this issue
is that an applicant has the onus to show exceptional circumstances
to persuade this Court to intervene in
media
res
.
[27]
Landman JA,writing for the Court, in
Bloem
Water Board
[7]
others
,
in respect of powers of the LC held that:
‘…
the
purpose of review is to consider the material irregularity whether
they appear on the record or not and at any time before,
or during
arbitration proceedings
and
also, if they surface only after arbitration proceedings are
terminated
.’
[8]
[28]
The issue of whether the notice of set down was sent to the
applicant’s attorneys (which
was a chosen address) or not came
after the applicant became aware of the outcome of the condonation
application. Therefore taking
into account the principle in
Bloem
Water Board
, where the LAC said the purpose of the review is
consider
inter alia
irregularity that “surfaced only
after arbitration proceedings are terminated”. I conclude that
it is in the interest
of justice that this Court hears the review
application.
[29]
The remaining question is how the applicant is being prejudiced by
the condonation ruling or
hearing of the condonation without her and
her attorneys being physically present. Before Commissioner Khumalo,
according to the
condonation ruling, there were affidavits, and his
findings are based on what the affidavits contained. As I have
mentioned above,
Commissioner Khumalo should have considered the
point mentioned in paragraph 22 above, but clearly did not deal with
it and the
applicant’s attorneys presumably would have brought
this point to the attention of Commissioner Khumalo. I, therefore,
conclude
that the applicant was prejudiced as she did not get a fair
trial of issues. Therefore the review application should be granted.
I conclude that this court is not in the position to substitute the
condonation ruling because the application for condonation
that was
before the CCMA requires further investigation by a CCMA
commissioner, as a result of the way it is drafted , e.g
the
excerpt in paragraph 23 of this judgment.
[30]
In the result, I make the following order:
Order
1. Condonation
for the late delivery of the review application is granted.
2.
Condonation for the late delivery of the first respondent’s
answering affidavit is granted.
3. The
ruling by the third respondent issued on 28 October 2015 is reviewed
and set aside.
4. The
condonation ruling issued by the fourth respondent under CCMA case
number GAJB 12698-15 is reviewed and set aside.
5. The
determination as to whether the applicant’s referral to the
CCMA was out of time or not is referred back
to the CCMA for hearing
de novo
, before any other commissioner other than the third
and /or fourth respondents.
6.
There is no order as to costs.
___________
S. Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Mr Makita
Instructed
by:
Makita Attorneys
For
the Respondent: Mr Rapulang
Instructed
by: Cliffe Dekker Hofmeyr Inc
[1]
Act
66 of 1995 as amended.
[2]
Own emphasis.
[3]
[2010] 3 BLLR 251
(LAC), para 27
[2006]
5 BLLR 423
(LAC) at Para 13.
[6]
(2017)
38 ILJ 2470 (LAC); [2017] 11 BLLR 1073 (LAC).
[7]
Ibid.
at
para 16.