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[2019] ZALCJHB 98
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Government Pensions Administration Agency v General Public Service Sectoral Bargaining Council and Others (JR797/17) [2019] ZALCJHB 98 (15 May 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR 797/17
In the matter between:
GOVERNMENT PENSIONS
ADMINISTRATION AGENCY Applicant
And
GENERAL PUBLIC SERVICE
SECTORAL
BARGAINING COUNCIL
First Respondent
JOHN SIAVHE
N.
O
Second Respondent
RONALD OPPELT
N.O
Third
Respondent
PUBLIC SERVANTS
ASSOCIATION
obo RACHEL
KEKANA
Fourth Respondent
Heard:
7 November 2018
Delivered:15 May 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
With this application, the Applicant seeks various orders including
condonation
for the late filing of the review application; the
review and setting aside of the condonation ruling issued by the
Second
Respondent (Commissioner Siavhe), dated 4 March 2016;
the substitution of the condonation ruling with an order that the
Fourth Respondent’s referral of a dispute is not condoned;
alternatively reviewing and setting aside the whole arbitration
award
of the Third Respondent (Commissioner Oppelt), and substituting it
with an order that the dismissal of Ms Rachel Kekana as
represented
by the PSA was substantively fair, or in the alternative, remitting
the matter to the third respondent (GPSSBC) for
a hearing
de novo
.
Kekana as assisted by the PSA opposed the review application.
Condonation:
[2]
The Applicant sought condonation for the late delivery of the review
application
in respect of the condonation ruling issued by
Commissioner Siavhe on 4 March 2016.
[3]
The
applicant correctly pointed out that a review of the condonation
ruling in the light of the provisions of section 158(1B)
[1]
of the Labour Relations Act (LRA)
[2]
was impermissible, as the dispute between the parties was immediately
referred to conciliation and arbitration, which processes
had to be
finalised before the Court could be approached with a review
application.
[4]
The application to review both the condonation ruling and the
arbitration
award was in any event brought within the time periods
stipulated in section 145(1)(a) of the LRA. In the end, an
application for
condonation was not necessary.
Background:
[5]
Kekana was employed by the Applicant since January 1999 and at
the
time of the dispute, she occupied the position of Senior
Administration Clerk. She was dismissed from the applicant’s
employ
on 27 January 2013 on allegations of misconduct
pertaining to fraudulent payments in respect of a fictitious pension
benefit claim. The dismissal followed an internal disciplinary
enquiry held against Kekana and some of her colleagues. She had
lodged an appeal against the dismissal with the Minister of Finance,
who had confirmed the dismissal on 28 June 2013.
[6]
In September 2013, the PSA referred an unfair dismissal dispute
to
the General Public Service Sector Bargaining Council (GPSSBC)
citing ‘
PSA obo Rudman and two others’
. A
condonation was also sought for the late referral of the dispute. The
referral was some 83 days out of time. Commissioner Martin
Sambo of
the GPSSBC considered the application for condonation and dismissed
it in terms of a ruling issued on 25 April 2014.
No further
steps were taken in respect of that ruling by the PSA.
[7]
The applicant’s contention is that the referral and the
condonation
ruling dealt with Kekana’s dispute. The PSA
nonetheless referred a second unfair dismissal dispute on behalf of
Kekana on
10 November 2015. The referral was accompanied by
an application for condonation as it was 837 days out of time. The
application was opposed. It was considered and granted by
Commissioner Siavhe on 4 March 2016.
[8]
At a conciliation meeting held on 27 September 2016, the
matter
could not be resolved and was then referred for arbitration.
The matter came before Commissioner Oppelt, who had delivered his
award on 13 March 2017, and found that the dismissal of
Kekana was substantively unfair. The Commissioner had ordered
that
Kekana be retrospectively reinstated with an amount of back-pay equal
to R542 885.15.
The
grounds of review and evaluation:
[9]
Central to this dispute is whether there was a live dispute capable
of
conciliation or arbitration at the time that the second dispute
that resulted in the condonation ruling of Commissioner Siavhe was
referred.
[10]
The Applicant relies on the condonation ruling of Commissioner Sambo
for the contention
that in the absence of that ruling having been
reviewed or set aside, there was no live dispute between the parties,
as the dispute
and condonation application before Commissioner Sambo
involved Kekana and two of her colleagues, and consequently,
Commissioner
Siavhe lacked jurisdiction to consider the condonation
application.
[11]
In the founding affidavit, the applicant further contends that at the
conciliation proceedings
held on 28 February 2014 after the
initial referral, it had raised various preliminary issues about the
identities of
the parties. It was then agreed between the parties
that the various disputes should be separated, as the individual
employees
were not charged and dismissed for the same misconduct. It
was however submitted that Commissioner Sambo still proceeded to
determine
the condonation application, which was subsequently
refused.
[12]
In the answering affidavit, Kekana denied that her dispute formed
part of the initial referral
and condonation application leading to
the ruling by Commissioner Sambo. She contended that her dispute was
separated from the
others at the directive of the GPSSBC, She
contended that any points of law in that regard ought to have been
raised at the conciliation
in respect of the second referral, or that
the issue of jurisdiction that the matter was
res judicata
could have been raised at arbitration, which the applicant did not.
[13]
Kekana’s submissions that objections were not raised in respect
of the second referral
cannot be correct. The applicant had opposed
the second referral, contending that it was out of time by 835 days,
and further that
the matter was initially dealt with under another
referral. The matter was initially dealt with in a ‘Jurisdictional
Ruling’
issued by GPSSBC’s ‘Junior Resident
Panellist’, SM Skweyiya, on 12 October 2015. It
appears that the
purpose of that ruling was to determine whether
condonation for the second referral was necessary or not, leading to
a finding
that indeed the second referral was out of time
necessitating an application for condonation.
[14]
To the extent that there may have been an agreement to separate
Kekana’s dispute
from the others as initially referred,
Commissioner Siavhe in his ruling appears to have accepted that this
was indeed the case.
Further to the extent that the Applicant
conceded that it had raised various preliminary points, and in
particular, in relation
to the joint referral of the dispute when the
circumstances of the dismissal of the individual employees were
different, I am prepared
to accept that indeed there was at least a
common understanding that the matters were to be separated. This
however meant that
Kekana had to immediately refer her own dispute,
together with an application for condonation.
[15]
It was common cause that the dismissal of Kekana effectively took
place on 28 June 2013.
She had then referred a dispute on
her own on 9 November 2015, together with an application
for condonation. It was therefore
common cause that her referral was
some 837 days out of time.
[16]
The
principles applicable to applications for condonation are trite
as
enunciated in
Melane
v Santam Insurance Co. Ltd
[3]
.
The Supreme Court of Appeal in
Mulaudzi
v Old Mutual Life Assurance Company (South Africa) Limited
[4]
reiterated the applicable principles as follows;
‘
A full, detailed
and accurate account of the causes of the delay and their effects
must be furnished so as to enable the Court to
understand clearly the
reasons and to assess the responsibility. Factors which usually weigh
with this court in considering an
application for condonation include
the degree of non-compliance, the explanation therefor, the
importance of the case, a respondent’s
interest in the finality
of the judgment of the court below, the convenience of this court and
the avoidance of unnecessary delay
in the administration of justice.’
[17]
In the end,
the interests of justice would determine whether condonation ought to
be granted
[5]
. In this case,
there is no doubt that the delay by Kekana in referring her dispute
to the GPSSBC was excessive in the extreme.
She therefore had a
greater burden to set out all the facts and circumstances relating to
the delay, and most importantly, to provide
a satisfactory
explanation for each period of the delay. Any period of delay that
was unaccounted for would ordinarily result in
condonation being
refused
[6]
.
[18]
In the condonation application before Commissioner Siavhe. Her
explanation was as follows;
“
During the
conciliation on 28/2/2014, the GPAA objected to her inclusion to
Rudman’s case, they then requested that, this
applicant must be
separated from Rudman but there is no need to start the process of
condonation, what matters then was that she
must be issued with a
separate case number. It is surprising to learn that on 3/9/2015
during the conciliation between the parties
objected to the
conciliation citing the fact that we must apply for condonation
On the 3/9/2015, GPAA
promised to make submissions to PSA whereby PSA was given 14 days to
respond to, PSA unfortunately did not
receive anything from GPAA
until we received the attached jurisdictional Ruling from GPSSBC.
Based on the above
truth, we appeal to the Commissioner to consider our
application
”(Sic
)
[19]
Under prospects of success, Kekana averred that;
‘
Applicant
believes that he/she has good cause because (
explain with
good reasons why the employer’s conduct was unfair
):
As we have stated under procedural fairness that during the
disciplinary hearing, GPAA did not provide the employee with
supporting
documents on time. We therefore expect to be provided with
neutral commissioner who will not be biased like the Chairperson who
conducted the disciplinary hearing.
Employer
added his unfairness by objecting to the conciliation of the
3/9/2015, which is a deviation from the consensus the parties
agreed
to on 28 /2/2014’
(Sic)
[20]
Commissioner Siavhe in the condonation ruling considered Rule 9 of
the GPSSBC Rules, and
the relevant factors to be considered in such
applications, and found that the referral was
not
‘substantively late’ and the reasons for the delay were
acceptable. The Commissioner was further persuaded that Kekana
had
demonstrated prospects of success in the main matter, and that she
would be ‘highly prejudiced’ if condonation
was not
granted.
[21]
It is
accepted that when considering applications for condonation,
arbitrators enjoy a wide discretion, and the Courts should be
slow in
interfering with their decisions on review, unless it can be
demonstrated that the discretion enjoyed by the arbitrator
was
exercised capriciously, or upon a wrong principle, or in a biased
manner, or for insubstantial reasons. Thus, the test is whether
the
Arbitrator committed a misdirection, an irregularity, or failed to
exercise his or her discretion, or exercised it improperly
or
unfairly. In any event, it has been held that a simple misdirection
is insufficient, and that such misdirection must be of such
a nature,
degree or seriousness that shows that the discretion was not
exercised at all or was exercised improperly or unreasonably
[7]
.
[22]
There are obvious difficulties with the condonation ruling issued by
Commissioner Siavhe,
which in my view calls for an interference. My
conclusions in this regard are based on the following;
22.1
It needs to be stated that Kekana in seeking condonation was assisted
by the PSA. The condonation
application however is clearly structured
in an incoherent manner, without any attempt at making it more
detailed in the light
of the inordinate delay. It clearly lacks
substance, and it appears that it was hurriedly stitched together on
the
pro forma
template with no regard to substance and
content. Surely members of the PSA in good standing deserve better in
their moments of
need.
22.2
The first obvious incorrect assertion by Commissioner Siavhe was that
the application for condonation
was unopposed. This however was not
so. The application for condonation was filed on or about
9 November 2015, and the
Applicant had indeed filed its
opposition on or about 23 November 2015. Even if an
application such as this was unopposed,
it did not imply that it
should be granted, as the Commissioner had to be satisfied that good
cause was shown. On that irregularity
alone, the ruling ought to be
set aside.
22.3
The delay being inordinate, there are inherent difficulties with the
explanation proffered by
Kekana in that regard. The first is that to
the extent that she seeks to rely on the separation of the disputes,
she cannot in
the same token rely on any suggestion that ‘
there
was no need to start the process of condonation’
. The
initial referral was in any event late, leading to a refusal to grant
condonation by Commissioner Sambo. If Kekana sought
to rely on that
referral for not seeking condonation in respect of the second
referral, it follows that the GPSSBC would not have
had jurisdiction
to consider the second referral as the matter was
res judicata
.
22.4
Even if Kekana was promised that a new case number would be allocated
by the GPSSBC that new
case number would still have been meaningless
in the absence of condonation in any event.
22.5
The
explanation for the delay proffered by Kekana amounts to no
explanation at all.
[8]
No attempt was made whatsoever to give a full account for the delay
between 26 June 2013 when she was dismissed, or
28 February 2014 when the Applicant objected to the joint
referral, and 9 November 2015 when she ultimately
filed her
application for condonation together with the referral. The
explanation says nothing, other than to state what happened
at the
conciliation proceedings of 28 February 2014 when the
Applicant objected to the joint referral.
[9]
It is therefore extraordinary that Commissioner Siavhe would find
that the delay was not ‘substantive’ or that a reasonable
explanation was proffered in that regard.
22.6
To the
extent that Commissioner Siavhe felt compelled to deal with the
prospects of success in the light of the conclusions regarding
the
extent of the delay and the explanation in that regard, it has been
was held that
without
a reasonable and acceptable explanation for the delay, the prospects
of success are immaterial and without prospects of
success, no matter
how good the explanation for the delay, an application for
condonation should be refused
[10]
.
This
approach is even more apposite in circumstances such as in this case,
where the referral was inordinately out of time and where
no attempt
was made whatsoever to explain that delay.
22.7
In the ruling, nothing is said about what Kekana’s prospects of
success were, and this
is unsurprising because she made no
discernible averments in that regard in her application. On the other
hand, the Applicant in
opposing the condonation (which the
Commissioner had no regard to), was that Kekana was charged with
gross dishonesty in that she
allegedly fraudulently
allocated/created/authorised or facilitated payment of pension
benefits amounting to R138 203, 28 into
various fraudulent bank
accounts. Those charges
prima facie
appears to be serious, and
at the most, they required some response in the condonation
application. However, Kekana said nothing
about those charges, other
than to refer to procedural unfairness. In those circumstances, the
question that arises is, on what
basis really, could Commissioner
Siavhe have concluded that he was persuaded that Kekana had
demonstrated prospects of success
with the main claim?
22.8
It has been restated that on the whole, the issue is whether it would
be in the interests of
justice to grant condonation. In my view, it
cannot be in the interests of justice to condone a late referral
where the delay is
excessive in the extreme, and where no attempt was
made to explain that delay. It can also not be so in circumstances
where an
employee who was dismissed on account of serious allegations
pertaining to dishonesty, says nothing in seeking condonation, about
why the dismissal was unfair.
22.9
The applicant like any other party to any proceedings is entitled to
finality in a dispute, and
a failure to take steps for about 837 days
in respect of a dispute is clearly prejudicial to the Applicant, and
cannot be in the
interests of administration of justice or
expeditious resolution of disputes as envisaged in the LRA.
22.10 In this
case, the Commissioner only stated that Kekana would be ‘highly
prejudiced’, but is not stated
what the basis of the prejudice
is. The fact of the matter however is that any prejudice that Kekana
would suffer is as a direct
consequence of her or the PSA for that
matter, sleeping on her dispute for 835 days. Parties seeking
condonation cannot complain
of prejudice when it is self-inflicted.
Ultimately, an application for condonation is a request for an
indulgence, and a party
seeking that indulgence must demonstrate that
it deserves it by showing good cause. In this case, Kekana had
clearly not shown
good cause.
[23]
In the light of the above, it follows that the Commissioner’s
decision in granting
condonation in circumstances where good cause
was not shown, cannot be said to have exercised his discretion
fairly, rationally
or reasonably. At the opposite end, the invariable
conclusion to be reached is that in exercising his discretion, the
Commissioner
did so for insubstantial reasons, and
committed
a misdirection and an irregularity. It follows from these conclusions
that first, the condonation ruling cannot stand,
and second,
the
arbitration award issued by the third respondent equally ought to be
set aside on the basis that Commissioner Oppelt lacked
jurisdiction.
[24]
Further in the light of the material placed before the Court, no
purpose would be served
by remitting the matter back to the GPSSBC,
and the Court is in a position to substitute the Commissioner
Siavhe’s ruling.
I have had regard to the requirements of law
and fairness, and in the light of the circumstances of the case, I am
of the view
that no order as to costs should be made.
[25]
In the premises, the following order is made;
Order:
1. The Condonation Ruling
issued by the Second Respondent dated 4 March 2016 under
case number GPBC 2760/2015 is reviewed,
set aside and substituted
with an order that;
‘
The application
for condonation for the late referral of an alleged unfair dismissal
dispute by the PSA on behalf of Ms Rachel Kekana
to the GPSSBC is
dismissed’
2. The arbitration award
issued by the Third Respondent under case number GPBC 2760/2015 dated
13 March 2017 is set aside.
3. There is no order as
to costs
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: W.P
Bekker, instructed by Gildenhuys Malatji INC
For
the First Respondent: Makgamatha,
instructed by MM Mitti INC Attorneys
[1]
Which
states:
‘
The
Labour Court may not review any decision or ruling made during
conciliation or arbitration proceedings conducted under the
auspices
of the Commission or any bargaining council in terms of the
provisions of this Act before the issue in dispute has been
finally
determined by the Commission or the bargaining council, as the case
may be, except if the Labour Court is of the opinion
that it is just
and equitable to review the decision or ruling made before the issue
in dispute has been finally determined.’
[2]
Act
66 of 1995 (as amended)
[3]
1962
(4) SA 531
(A) at 532B-E, where it was held that;
‘
In
deciding whether sufficient cause has been shown, the basic
principle is that the Court has a discretion, to be exercised
judicially upon a consideration of all the facts, and in essence it
is a matter of fairness to both sides. Among the facts usually
relevant are the degree of lateness, the explanation therefor, the
prospects of success and the importance of the case. Ordinarily
these facts are interrelated, they are not individually decisive,
save of course that if there are no prospects of success there
would
be no point in granting condonation. Any attempt to formulate a rule
of thumb would only serve to harden the arteries of
what should be a
flexible discretion. What is needed is an objective conspectus of
all the facts. Thus, a slight delay and a
good explanation may help
to compensate prospects which are not strong. Or the importance of
the issue and strong prospects may
tend to compensate for a long
delay. And the Respondent’s interests in finality must not be
overlooked”
[4]
2017 (6) SA 90
(SCA) at para [26]
[5]
See
Brummer
v Gorfil Brothers Investments (Pty) Ltd and others
[2000] ZACC 3
;
(2000
(2) SA 837
(CC)
[6]
See
NUMSA
and Another v Hillside Aluminium
[2005]
6 BLLR 601 (LC)
[7]
See
Motloi
v SA Local Government Association
[2006] 3 BLLR 264
(LAC) para [16];
NUMSA
v Fibre Flair cc t/a Kango Canopies
(2000) 21 ILJ 1079 [LAC] 1081 at G-1082A;
Cowley
v Anglo Platinum & others
JR 2219/2007;
[2016] JOL 35884
(LC) at para 21;
Coates
Brothers Limited v Shanker and Others
[2003] ZALAC 12
at para 5, where it was held that;
‘
I
have referred in para [3] above to the case of National Union
of Metalworkers of SA & Others v Fibre Flair CC in
which
were summarised the relevant principles with regard to the
interference with a discretion which is to be judicially exercised.
An appellant must show, in an appeal from a decision in a lower
court, that the court
a quo
“acted
capriciously, or acted upon a wrong principle, or in a biased
manner, or for insubstantial reasons, or committed
a misdirection or
an irregularity, or exercised its discretion improperly or
unfairly.”’
[8]
Moila
v Shai N.O and Others
[2007] 5 BLLR 432
(LAC);
2007
(28) ILJ 1028 LAC at para 34
where
it was held that:
“
I
do not have the slightest hesitation in concluding that this is a
case where the period of delay is excessive and the appellant's
purported explanation for the delay is no explanation at all. I
accept that the case is very important to the appellant. However,
the weight to be attached to this factor is too limited to count for
anything where the period of delay is as excessive as is
the case in
this matter and the explanation advanced is no explanation at all.
If ever there was a case in which one can conclude
that good cause
has not been shown for condonation without even considering the
prospects of success, then this is it. Where,
in an application for
condonation, the delay is excessive and no explanation has been
given for that delay or an “explanation”
has been given
but such “explanation” amounts to no explanation at all,
I do not think that it is necessary to consider
the prospects of
success.”
[9]
See
Zungu
v SA Local Government Bargaining Council and Others
(2010)
31 ILJ 1413 (LC) at para 13, where it was stated that
;
‘
In
explaining the reason for the delay it is necessary for the party
seeking condonation to fully explain the reason for the delay
in
order for the court to be in a proper position to assess whether or
not the explanation is a good one. This in my view requires
an
explanation which covers the full length of the delay. The mere
listing of significant events which took place during the
period in
question without an explanation for the time that lapsed between
these events does not place a court in a position
properly to assess
the explanation for the delay. This amounts to nothing more than a
recordal of the dates relevant to the processing
of a dispute or
application, as the case may be.’
[10]
NUM v
Council for Mineral Technology
1999
3 BLLR 209
(LAC) at para
10.