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[2019] ZALCJHB 264
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Ngwabe v Education Labour Relations Council and Others (JR1694/17) [2019] ZALCJHB 264 (16 July 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no: JR 1694/17
In
the matter between
ALSON
THEMBA NGWABE
Applicant
and
EDUCATION
LABOUR RELATIONS COUNCIL
First Respondent
COMMISSIONER
E.T NGOBENI N.O
Second Respondent
GAUTENG
DEPARTMENT OF EDUCATION
Third Respondent
Heard:
16 July 2019
Order:
16 July 2019
Date
of Reasons: 27 September 2019
REASONS
FOR ORDER
SAUNDERS,
AJ
Introduction
[1]
This is an application to review and set aside a condonation ruling
made
by the second respondent on 12 July 2017. The application to
review and set aside the condonation ruling appears to have been made
on or about 16 August 2017. The matter was originally set down for
hearing in this Court on 16 May 2019 and struck from the roll
for
non-appearance by the applicant. The applicant brought an application
to re-enrol the matter which was granted and the matter
came before
the Court again on 16 July 2019. On this date there was no appearance
by the applicant. Counsel appeared for the respondent.
The matter was
dismissed with no order as to costs. The applicant seeks reasons for
the Order.
[2]
The applicant referred an unfair dismissal dispute to the first
respondent
25 days late. The second respondent, acting under the
auspices of the first respondent, found that the period of 25 days
was not
excessive and that the reasons for the delay were acceptable.
However, the second respondent found that the prospects of success
were poor as the applicant’s referral was premature. The
applicant was employed by the third respondent in terms of a fixed
term contract at the time of his referral. On this basis, the
condonation application for the late referral of the unfair dismissal
dispute to the first respondent was dismissed.
[3]
The applicant sought a review of this condonation ruling.
Factual
background
[4]
The
applicant was employed by the third respondent into an emergency
growth position. On the applicant’s version, he was appointed
on 3 February 2017 and dismissed for the first time on 18 April 2017.
He was reinstated on the same day.
[1]
He had several other grievances which did not appear to be managed to
his satisfaction which are set out in the founding affidavit
but are
irrelevant to this application. The applicant was removed from the
emergency growth position into a different position
and signed a
fixed term contract due to expire on 30 June 2017. His salary was
paid for April 2017, albeit late, May 2017 and June
2017. The
applicant did not render his services for May and June 2017. The
documentation attached by the applicant as annexures
also appear to
indicate that there was an overlapping employment contract for a
one-month period of April 2017, which terminated
on 30 April 2017.
[5]
The third respondent sets out in answer that there are no grounds for
review and therefore no review application for determination by the
Court. Furthermore, the third respondent sets out that two contracts
of employment were entered into; the first for the period of February
and March 2017 and the second for the period of April, May
and June
2017.
[6]
The third respondent states that in April 2017 the applicant was
transferred
to a different school for the remainder of the contract,
for which he failed to render his services. He then referred an
unfair
dismissal dispute on 13 June 2017, premised on events of April
2017 which led to his transfer. The third respondent argues that
the
applicant was employed at the time of his referral and up until 30
June 2017. Essentially there was no dismissal.
Parties’
Submissions
[7]
The applicant was not present in court and did not offer any
submissions
in support of his case. Counsel for the third respondent
was present in court. The founding papers do not make out any case
for
a review on any grounds. The founding papers allege no reviewable
irregularities. The replying papers appear to be a partially edited
working document of the answering papers and also fail to set out any
reviewable irregularities. The heads of argument similarly
do not
highlight any misconduct or error on the part of the second
respondent. However, it is clear that the matter turns on whether
a
dismissal took place.
[8]
The applicant sets out contradictory versions. He states that he was
dismissed
on 18 April 2017 and then reinstated on the same date. The
applicant furthermore states that there was an additional contract
which
entitled him to continue with his duties until 30 June 2017.
This accords with the version of the third respondent. He references
a dismissal of 30 April 2017 but fails to support this dismissal with
any additional evidence. The ruling which the applicant seeks
to set
aside, references a meeting of 3 May 2017 wherein the applicant was
instructed to return to work to teach the learners but
he refused to
do so because he believed that his services had been terminated. No
reasons to support this belief were advanced.
He gives no version of
this meeting in the founding affidavit.
[9]
The heads of argument filed by the applicant give further information
that there was no transfer letter or documentation informing the
applicant of the transfer to another school, and the late payment
of
the April 2017 salary was indicative of the dismissal he had
suffered. Furthermore, he states that he was instructed by an
individual that his services would be officially terminated. This
version is raised for the first time in the heads of argument.
Reasoning/Merits
[10]
The review application sets out no grounds of review. It fails to
mention any reviewable
irregularity and the third respondent is
correct to state that the applicant has failed to make out any case
whatsoever.
[11]
That said, the applicant is acting without representation and it is
in the interests of
justice for this Court to consider whether or not
an error is apparent from the finding of the second respondent.
[12]
The difficulty with this matter is that the applicant fails to set
out, definitively, whether
or not he was employed as at 13 June 2017
when he referred the dispute. His versions in the various affidavits
highlight contradictions
which are difficult to reconcile. What is
common cause is that the applicant had a fixed term contract until 30
June 2017 and he
was paid until the expiry of this contract. Annexure
E to the founding affidavit references an instruction to report for
duty which
the applicant failed to heed. This accords with the
version advanced by the third respondent and set out in the ruling.
The third
respondents’ version is that the applicant was still
employed and that it intended to pay him until the conclusion of his
contract.
[13]
The second respondent, in considering these factors, correctly sets
out that he is required
to consider the degree of lateness, the
reasons for the delay, the prospects of success and prejudice to be
suffered by the applicant.
[14]
The second respondent then finds that the degree of lateness was not
excessive and that
the reasons for the delay were acceptable. Of
importance, the second respondent finds that there are no prospects
of success as
the applicant was employed at the time of the referral.
[15]
This conclusion, on the evidence presented, appears both reasonable
and correct. This,
coupled with the failure to set out any grounds
for review or to articulate any complaints against the third
respondent, renders
the application defective. On this basis, the
application for review must fail.
[16]
In the circumstances, the following order is made:
Order
1. The
Application is dismissed.
2.
There is no order as to costs.
—————————————
S
Saunders
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant: None
For
the Respondent: Advocate
Nhlapo
Instructed
by: State
Attorney
[1]
Founding Affidavit at para 5.