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[2019] ZALCJHB 182
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Matlama v Transnet Bargaining Council and Others (JR1386/17) [2019] ZALCJHB 182 (31 July 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable/Not
Reportable
Case
no: JR1386/17
In
the matter between:
LESALA
MATLAMA
Applicant
and
TRANSNET
BARGAINING COUNCIL
First Respondent
COMMISSIONER
EBRAHIM PATELIA
Second Respondent
TRANSNET
SOC LTD TRADING AS
TRANSNET
CAPITAL PROJECTS
Third Respondent
Heard:
16 July 2019
Delivered:
31 July 2019
Summary:
Application to review and set aside arbitration
award – condonation ruling – condonation
granted in the
interests of justice and to bring finality – reviewed the
merits of the application – the condonation
ruling is upheld.
JUDGMENT
DEANE
AJ
Introduction
[1]
The Applicant, who is representing himself, seeks to review and set
aside
a ruling made by the Second Respondent under the auspices of
the First Respondent (Transnet Bargaining Council). The Second
Respondent
dismissed the Applicant’s application for
condonation of the late referral of an unfair dismissal dispute to
the Transnet
Bargaining Council. The unfair dismissal referral was
late. The date of dismissal was 14 October 2016 and the referral to
the First
Respondent was made on 18 January 2017. The Second
Respondent refused condonation because of the delay, the poor
explanation for
the delay and the prospects of success taking into
account that the Applicant had admitted guilt to the charge of theft.
[2]
The Applicant’s principal grounds in this review are that the
Commissioner
committed a reviewable irregularity in deciding the
condonation application in that the Commissioner – “
exceeded
his powers, acted unreasonably and did not consider all the issues
before him and therefore the conclusion reached by the
Commissioner
is one that a reasonable decision maker could not have made based on
the evidence properly placed before him
.”
[3]
The
Applicant has launched a review application in terms of s145 of the
Labour Relations Act,
[1]
(LRA), but did so out of time and now seeks condonation. The Second
Respondent made his ruling dismissing condonation on 27 February
2017. Accepting the date of 27 February 2017 as being the date when
the applicant became aware of the ruling, the review application
had
to be filed within 6(six) weeks of that date,
[2]
which was on or before 10 April 2017. The review application was made
on 28 August 2017, some four and a half months late. Before
this
Court can consider the review application, the Applicant’s
condonation application for the late service and filing of
the review
must be considered.
[4]
The application for condonation and review is opposed only by the
Third
Respondent.
[5]
Considering whether to grant condonation, I first considered the
delay,
which is not unduly excessive, to the extent of itself
mitigating against the granting of condonation. As to the explanation
for
the delay, the applicant explained that he made attempts to gain
assistance from both the
pro bono
offices at the Labour Court
and the Wits Law Clinic, wherein he remained unsuccessful in
procuring
pro bono
services for his case. The Applicant
further explained that he did not understand the legal timeframes and
the processes that must
be followed when making his review
application. A third explanation given by the Applicant for the delay
was related to the so-called
illegal procedures that was followed by
the Second Respondent, which explanation in my opinion holds no
credibility in so far as
this condonation application applies and is
rejected. With regards to the Applicant’s first two reasons, it
is not explained
why it then took until 28 August 2017 to file the
application. I have my concerns with the Applicant’s
explanation. In simple
terms, it is rather weak.
[6]
It is not disputed that after receipt of the condonation ruling dated
27 February 2017, the Applicant sought assistance from the
pro
bono
offices at the Labour Court, and through the Wits Law
Clinic. He, however, did not qualify for assistance. It is clear then
that
the Applicant did make some attempts towards getting assistance
in the review application after receiving the condonation ruling
of
27 February 2017. I am, therefore, inclined to accept that the
Applicant intended to review the condonation ruling but could
not
find the necessary assistance. Moreover, taking into account that the
Applicant remains unrepresented and despite the poor
explanation
being proffered, there is at least some explanation, and in my view,
if considered with the relatively short delay,
the explanation is not
lacking to the extent of excluding the necessity of considering the
prospects of success in the review application.
Very importantly in
my opinion is that the Labour Court is a court of fairness and
equity, I therefore found it just and equitable
to grant condonation
for the purposes of properly considering the prospects of success and
to bring finality to this matter.
[7]
I will now proceed to consider the applicant’s review
application
on the merits thereof, starting with the setting out of
the relevant factual background.
Material
Background Facts:
[8]
The Applicant was employed by Transnet Capital Group (the Third
Respondent)
on 1 November 2012 as an ICT Infrastructure Specialist,
entrusted with managing the company’s ICT assets such as
laptops
and coordinating the use and legal disposal of the assets.
[9]
The Applicant was dismissed on 14 October 2016 after a disciplinary
enquiry
wherein he pleaded guilty to two charges of misconduct; the
theft of assets and gross misconduct; charges that emanated from the
theft of five laptops. The Applicant was also the subject of a
criminal investigation and was subsequently criminally charged and
found guilty of the theft of five laptops by the Johannesburg
Magistrate’s Court wherein he received a suspended sentence.
[10]
The Applicant argues that the theft incident happened in May 2017. He
further argues that
because he was allowed to continue to work for
five months thereafter without any consequences to this action meant
that there
was no breakdown of trust in the employer/employee
relationship.
[11]
Upon dismissal, a copy of the dismissal notice dated 14 October 2016,
wherein his right
to refer the matter to the Transnet Bargaining
Council within 30 days, was handed to the Applicant. The Third
Respondent argues
that the Applicant was also verbally informed of
this right by the deponent of the application, one Mr Gerhardus
Johannes Wilhelmus
Van Niekerk.
[12]
On 18 January 2017, the Applicant referred an unfair dismissal
dispute to the First Respondent.
The Applicant thereafter submitted
an application for condonation on 21 January 2017.
[13]
In the Applicant’s referral form, he argues that he was
unfairly dismissed. The Applicant
argues further that the dismissal
was procedurally unfair because he was denied the right to
representation and that his request
for a postponement was denied.
The Applicant argued further that his dismissal was substantively
unfair because employee’s
who had committed a similar
misconduct were not dismissed. The Third Respondent denies that the
Applicant was dismissed both procedurally
and substantively unfairly.
The Third Respondent argues that the Applicant made no reference to
his current claim of inconsistent
application of discipline during
the internal disciplinary proceedings.
[14]
The reasons given for the late referral were that he did not
understand the referral process
and that when he approached the Union
for assistance, he was refused assistance due to him being a
non-member of the Union. A further
reason given for the delay was
attributed to the fact that his wife had passed away on 16 November
2016 and it was a difficult
time in his life. He further argues that
he did not have the finances to pursue the application. That is the
extent of his explanations
and no proof of the reasons that he gave
in support of his late referral, were attached to his referral
application.
[15]
In relation to the Applicants prospects of success, the Applicant
reiterated the procedural
and substantive issues he had raised in his
referral form.
Grounds
for Review
:
[16]
The Applicant argues that the Commissioner committed misconduct in
relation to his duties
as an arbitrator. In his condonation ruling,
the Second Respondent was clearly critical of the explanation
provided for by the
applicant for the delay in this matter, and the
manner in which prospects of success were addressed by him. In short,
the Second
Respondent considered this to be completely lacking in the
requisite particularity. The Applicant takes issue with this
reasoning
of the Second Respondent. According to the Applicant, the
approach adopted by the Second Respondent in this regard, in deciding
his condonation application, constituted misconduct.
[17]
The Applicant further argues that the Commissioner committed
dishonesty and exceeded his
powers because the Commissioner failed to
properly apply his mind to all relevant evidence presented during the
arbitration, specifically
that the parity principle for disciplinary
consistency was not considered.
[18]
The Applicant further argues that the arbitration award was
improperly awarded and that
the commissioner failed to consider,
alternatively, properly consider the relevant evidence regarding the
explanation for the delay.
The Applicant argues that he did not
understand the referral process, that even after approaching the
Union he could not get assistance,
that he lost his wife and that the
company withheld his pension. He was also being subject to a criminal
case for the charge of
theft against him.
Legal
Considerations and Analysis
:
Condonation
[19]
This Court
accepts that when considering applications for condonation,
Commissioners enjoy a wide discretion,
[3]
and the Courts should be cautious when interfering with the decision
arrived at by Commissioners in the light of that wide discretion.
[4]
[20]
The
principles applicable to applications for condonation are trite and
as
enunciated in
Melane
v Santam Insurance Co Ltd
.
[5]
The following was said about the factors that will be taken into
account when considering a condonation application:
‘
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 of success may tend
to compensate for a
long delay. And the respondent's interests in finality must not be
overlooked.’'
[6]
[21]
The
Supreme Court of Appeal in
Mulaudzi
v Old Mutual Life Assurance Company (South Africa) Limited
[7]
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.’
[8]
[22]
In
this case, there is no doubt that the delay by the Applicant in
referring his dispute to the First Respondent was considered
“significant” by the Second Respondent. The Applicant
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.
[9]
Any period of delay that was unaccounted for would ordinarily result
in condonation being refused.
[10]
[23]
In his explanation for the delay,
the
Applicant indicates that one of his reasons for the late filing of
his referral papers was due to a lack of understanding around
the
timeframes for the referral process and the referral processes
itself. He also indicates that he had approached the Union for
assistance with the referral but that he was denied assistance due to
his non-membership in the Union.
[24]
The Applicant’s bare denial of knowledge of the
referral process, after having received written notice of the
dismissal, is
hereby rejected by this Court based on the dismissal
notice dated 14 October 2016, which clearly specifies that the
Applicant has
“
the right to refer this matter to the
Transnet Bargaining Council within 30 days
”. The
Commissioner indicates in his award that the Applicant was
furthermore personally informed of the process by the deponent.
No
statement by the Applicant refuting this was made. Due to this, the
Commissioner stated in his award that “
the applicant bears
the responsibility of referring this matter to the bargaining council
within the stipulated period of 30 days
from the date the unfair
dismissal
”. The Commissioner further provides that “
and
where he has failed to do so he has to provide adequate reasons to
justify granting the application for condonation
”.
[25]
The second reason provided for the late referral was that the
Applicant suffered the loss of
his wife soon after his dismissal.
This is, as indicated by the Commissioner, “
sufficient
reason for lateness
”.
[26]
The
Commissioner made reference to
NUM
v Council for Mineral Technology,
[11]
where it was pointed out that in considering whether good cause has
been shown, the well-known approach adopted in
Melane
v Santam Insurance Co Ltd
should be followed, but cautions that —
“
[t]here is a
further principle which is applied and that is that without a
reasonable and acceptable explanation for the delay,
the prospects of
success are immaterial, and without good prospects of success, no
matter how good the explanation for the delay,
an application for
condonation should be refused.”
[12]
[27]
Whilst this Court and anyone who has suffered the loss of a loved one
can sympathise with the
Applicant herein, the issue is that the
Applicant was specifically made aware of the 30-day period and
because of this it is the
Applicant who bears the responsibility of
referring this matter to the Bargaining Council within the stipulated
period of 30 days
from the date of the unfair dismissal. Where he has
failed to do so he has to provide adequate reasons to justify
granting the
application for condonation. The Commissioner correctly
states that this reason for the late referral “
would have
been better supported if the applicant attached his wife’s
death certificate to his condonation application and
provided
specific information of how this contributed to the period of
lateness. The Applicant did not make any statement in relation
to
this
”. The Commissioner further argues that “……
the
applicant has not provided any reasonable and justifiable explanation
for the delay in referring the matter
”.
[28]
I find that the explanations for the delay proffered by the Applicant
amounts to no explanation
at all.
[13]
Even though an attempt was made to give an account for the delay no
full account for the delay between 14 October 2016, when
he was
dismissed, and 21 January 2017, when he ultimately filed his
application for condonation, was given; the referral being
filed on
18 January 2017. The explanation says nothing, other than to state
that he had suffered a loss and did not understand
the
proceedings.
[14]
It is,
therefore, not unreasonable for the Second Respondent to find that a
‘reasonable and justifiable’ explanation
for the delay
was not proffered in that regard.
[29]
In
Vodacom
(Pty) Ltd v Byrne NO and Others
,
[15]
Van Niekerk J canvassed the applicable law pertaining to reviews of
commissioners’ awards and concluded: that:
‘
In
short: a commissioner is obliged to arrive at a result that is
reasonable in the sense that it falls within a band of decisions
to
which reasonable decision makers could come on the available
evidence. In doing so, the commissioner must act as a reasonable
decision maker would, and in particular, must conduct him or herself
in a manner that a reasonable commissioner would, so that
the award
is reasonable. This requires a commissioner to have regard to all of
the relevant and material evidence, and to make
a decision that can
be reasonably justified having regard to the evidence. In relation to
sanction, a commissioner may not substitute
what he or she considers
to be an appropriate sanction for that imposed by the employer. The
commissioner must consider a catalogue
of factors, intended to
achieve a balance between employer and employee interests, and to
which a commissioner must give impartial
consideration.’
[16]
[30]
The Commissioner herein clearly understood the task at hand and took
into account all relevant
considerations including the length of
delay and the reasons for the delay.
[31]
Accordingly, I agree with the Commissioner that the explanation for
the delay proffered by the
Applicant is unreasonable and unacceptable
and as such the prospects of success are immaterial. Still, I have
had regard to the
prospects of success.
Prospects
of Success
[32]
Our courts have placed persistent emphasis on the honesty and
integrity of employees. Theft is
so pernicious that it would
annihilate the sustainability of the employment relationship.
[17]
[33]
In
Sappi
Novoboard (Pty) Ltd v Bolleurs
,
[18]
the LAC held that “…In employment law a premium is
placed on honesty because conduct involving moral turpitude by
employees damages the trust relationship on which the contract is
founded”.
[34]
The Applicant admitted guilt at an internal disciplinary enquiry that
led to his dismissal. He
furthermore pleaded guilty to the theft at a
criminal trial, wherein he was found guilty and given a suspended
sentence.
[35]
Having regard to the Applicants job description wherein he was
employed to manage the company’s
ICT assets such as laptops and
coordinating the use and legal disposal of the assets, by its very
nature the job demands a relationship
of trust. The Applicant avers
that because it took the Third Respondent five months after the theft
incident to implement disciplinary
measures that led to his dismissal
it meant that there was no breakdown in the trust relationship. This
averment is rejected. For
whatever reason that it did take five
months to institute the disciplinary measures, this does not in any
way detract from the
fact that by its very nature theft is dishonest
conduct by the employee.
[19]
Taking into account the Applicant’s job description and his
plea of guilt, it cannot be expected from
an employer to continue to employ an employee who has broken the
trust relationship or engaged in conduct which has negatively
impacted on that relationship.
[36]
Regarding the Applicant’s prospects of success, the
Commissioner stated that “
the Applicant indicated that he
has good prospects of success because the hearing was not conducted
in a fair manner, in that he
was refused representation and the
hearing took place under duress. The respondent denies this and
attached the applicant’s
notice to attend a disciplinary
enquiry which indicates the Applicant’s rights in relation to
representation, documentary
evidence, witnesses, cross-examination
and the opportunity of the applicant to state his case at the
hearing”
. Having had regard to the Notice to Attend a
Disciplinary Enquiry dated 10 October 2016, wherein the rights of the
Applicant is
clearly indicated, the Applicant’s version is,
therefore, rejected as it is clear that he had received written
notice of
his rights in terms of the disciplinary notice. In this
case, it is apparent that the Applicant was made aware of his rights
both
orally and in written form.
[37]
Regarding the Applicant’s arguments of inconsistent
disciplinary action against members
of staff involved in the same or
similar offences; barring any evidence to the contrary, this Court
cannot decide on whether or
not the Applicant was or was not treated
unfairly having regards to the parity principle for the fact that no
relevant evidence
was placed before it. Suffice to say that
since
the Applicant was dismissed for theft then the Third Respondent would
have acted inconsistently by failing to take any disciplinary
action
against other employees who had participated or was involved in the
theft of these assets. Based on the facts of this matter,
I am not
able to draw that conclusion with confidence.
[38]
Taking the above into account in the analysis of the Applicant’s
prospects of success,
there is none.
Conclusion
:
[39]
In
this case, there is no basis for reviewing or setting aside the
condonation ruling of the Second Respondent. In essence, the
Applicant’s application for condonation had not established
good cause as to why the late referral ought to have been condoned.
In the light of the factors considered and conclusion reached in that
regard, the review application ought to be dismissed.
[50]
Having regard to these principles and evidence
the Second Respondent acted as a reasonable decision-maker in
applying his mind to
both the Applicant and Third Respondent’s
submissions on paper.
Order
:
In
the premises, I make the following order:
1 Condonation for
the late referral of the review application is granted.
2 The review
application is dismissed.
3 There is no order
as to costs.
________________
T
Deane
Acting
Judge of the Labour Court
APPEARANCES:
For
the Applicant:
In
Person
For
the Third Respondent: Dawn
Norton Attorney’s
[1]
Act 55 of 1995.
[2]
See Section 145(1).
[3]
Motloi
v SA Local Government Association
(2006) 3 BLLR 264
(LAC) para 16.
[4]
NUMSA v
Fibre Flair cc t/a Kango Canopies
(2000) 21 ILJ 1079 (LAC) 1081 at G-1082A.
[5]
1962 (4) SA 531 (A).
[6]
At 532B-E.
[7]
2017
(6) SA 90
(SCA).
[8]
At
para 26.
[9]
Government
Pensions Administration Agency v General Public Service Sectoral
Bargaining Council and Others
(JR797/17) (2019) ZALCJHB 98 (15 May 2019).
[10]
See
NUMSA
and Another v Hillside Aluminium
[2005] ZALC 25
;
(2005)
6 BLLR 601
(LC).
[11]
(1999) 3 BLLR 209 (LAC).
[12]
At para 10 532C-D.
[13]
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.”
[14]
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.’
[15]
(2012) 33 ILJ 2705 (LC) at pages 2709ff.
[16]
At para 12.
[17]
See
Threewaterskloof
Municipality v SA Local Government Bargaining Council (Western Cape
Division)
(2010) 31 ILJ 2475 (LC) at para 21.
[18]
(1998) 19 ILJ 784 (LAC).
[19]
Compass
Group Southern Africa (Pty) Ltd v van der Merwe N.O &
Others
(JR633-16,
9 February 2018).