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[2019] ZALCJHB 233
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Buta v CCMA Pretoria and Others (JR2333/18) [2019] ZALCJHB 233 (29 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE
NO: JR 2333/18
In
the matter between:
PATRICK
SIPHO BUTA
Applicant
And
CCMA
PRETORIA
First
Respondent
PALESA
MAWASHA N.O.
Second
Respondent
MY
ECO FUTURE
Third
Respondent
Heard:
27 August 2019
Judgment
delivered: 29 August 2019
JUDGMENT
VAN
NIEKERK J
[1]
This is an unopposed application to review and set aside a ruling
made by the second respondent
(the commissioner). In his ruling, the
commissioner refused to condone the later referral of an unfair
dismissal dispute in circumstances
where the referral had been made
128 days late in circumstances where the commissioner found that the
applicant’s explanation
for the delay was unsatisfactory. The
applicant resigned during March 2018 (he claims to have been
constructively dismissed), and
referred the dispute to the CCMA only
on 20 August 2018.
[2]
The commissioner’s reasoning is captured in the ruling, and I
do not intend
to repeat it here. It is sufficient for present
purposes to record that this court’s powers to intervene are
limited –
this court may review and set aside an award or
ruling if and only if the award or ruling is unreasonable that no
decision-maker
could come to the decision to which the commissioner
came. That is a high threshold, and given the nature of the test, it
is not
often that this court will set aside awards and rulings. The
applicant appears to approach the present application on the basis
that the commissioner’s ruling is wrong; in other words, as an
appeal. The relevant test is one which draws a clear distinction
between a review and an appeal and, as I have indicated, limits the
scope of intervention.
[3]
The applicant has not made out a case to the effect that the
commissioner’s
ruling fails to meet the reasonableness
threshold. The commissioner clearly appreciated the nature of the
enquiry, and the test
to be applied. The commissioner exercised a
discretion, having regard to the extent of the delay, the explanation
proffered for
that delay, the applicant’s prospects of success,
and the relative prejudice to the parties that would be occasioned by
the
application being granted or refused. There is no suggestion that
his discretion was exercised arbitrarily or capriciously. The
commissioner took into account the fact that the applicant referred
the dispute only after his claim for compensation for an accident
that he suffered in July 2015 failed. He also no doubt took into
account the tone of the applicant’s letter of resignation,
which makes no mention of any intolerability of future employment and
on the contrary, expresses regret for the short notice and
gratitude
for the employment opportunity. On the papers before me, I am unable
to find that the commissioner’s decision falls
outside of a
band of decisions to which a reasonable decision-maker could come on
the available evidence. In the circumstances,
the application to
review the commissioner’s ruling stands to be dismissed.
I make the following order:
1.
The application is dismissed.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: In person