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[2019] ZALCJHB 305
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Free State Gambling and Liquor Authority v Tollie and Others (JR1051/16) [2019] ZALCJHB 305 (7 November 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
case
No: JR1051/16
In
the matter between:
FREE
STATE GAMBLING AND LIQUOR AUTHORITY Applicant
and
NEHAWU
OBO BANZI TOLLIE
First Respondent
COMMISSION
FOR CONCILATION MEDIATION
AND
ARBITRATION (FREE STATE PROVINCE)
Second Respondent
COMMISSIONER
CHARLES DELL
Third
Respondent
Heard:
08 August 2019
Delivered:
07 November 2019
Summary:
Condonation for the late delivery of replying affidavit
is denied-Review application is dismissed.
JUDGMENT
MABASO,
AJ
Introduction
[1]
Two applications served before this court. The first is an
application to review and set
aside an arbitration award under the
Commission for Conciliation, Mediation and Arbitration (CCMA) case
number FSBF 4006-15 issued
by the third respondent, and the second is
a condonation application for the late delivery of the applicant's
replying affidavit.
Only the first respondent opposes these
applications. Immediately after hearing oral arguments, this court
made an order that the
condonation application for late delivery of
the replying affidavit was not granted, reasons for this order are
contained in this
judgment.
[2]
The applicant is Free State Gambling and Liquor Authority (the
applicant), the first respondent
is the NEHAWU obo BanziI Tollie (the
Employee), the second respondent is the CCMA, and the third
respondent is Commissioner Charles
Dell (the arbitrator).
Brief
background
[3]
The Employee was employed by the applicant as its Communications and
Marketing Manager.
He was summoned before a disciplinary hearing to
answer to 6 counts of misconduct. The chairperson of the disciplinary
hearing
found him guilty of all the charges and recommended dismissal
as a sanction. Thereafter, the applicant proceeded to dismiss the
Employee. As a result, the Employee referred an unfair dismissal
dispute to the CCMA against the applicant.
[4]
The arbitrator after allowing both parties to give their respective
evidence, issued an
arbitration award wherein he confirmed the guilty
verdict on counts 1 and 5. However, he ruled that the Employee was
not guilty
in respect of charges 2, 3, 4 and 6. I propose to deal
only with these charges, namely:
4.1 Gross dereliction of
duties in that the Employee failed to submit his alignment as
required by the Treasury for Communication
and Marketing, a service
provider (Morar Inc) for strategic planning (charge 2);
4.2 Gross
dereliction of duties and dishonesty as it was alleged that he
conducted an interview with the newspaper called
‘The Weekly’,
without prior authorisation by the CEO and he misrepresented them
false information (charge 3);
4.3 Failure
to attend the Free State Provincial Premier’s Breakfast meeting
as instructed by the CEO, alternatively
that he committed gross
insubordination in that he failed to obey the instruction (charge 4);
and
4.4
Gross negligence in that he lost his data card and failed to
timeously report such to both the applicant and
SAPS (charge 6).
[5]
He then concluded that the dismissal was procedurally fair but
substantively unfair. Consequently,
the applicant was ordered
to reinstate the employee and be issued with a final written warning,
and be paid arrear salary.
Condonation
application
[6]
Usually there is no prejudice suffered by respondents if a
condonation application for the
delivery of a replying affidavit is
granted in a review application where the grounds of review are
properly pleaded in the founding
affidavit and are based on what is
contained in the arbitration records as the latter will guide this
Court. However, if through
the replying affidavit an applicant
attempts to introduce a new ground of review or material which was
not contained in the founding
papers and the records delivered in
terms of Rule 7A (6) there is a possibility of prejudice on the part
of the respondent(s).
[7]
The review application was delivered in June 2016. In September 2016,
the applicant proceeded to deliver both parts of the arbitration
records and the Rule 7A (8) (b) notice indicating that it stands by
its founding papers. Any of the respondents intending to oppose
the
application had to deliver an answering affidavit within 10 days
thereafter, and within this period the Employee delivered
his
opposing affidavit wherein he alerted the applicant that the
arbitration records were not complete as some of the evidence
of the
witnesses was not contained therein. There are correspondences which
were exchanged between the parties regarding the need
for the
remainder of the records to be delivered.
[8]
It was important for this part of the missing records to be filed for
the court to decide
whether the arbitrator committed reviewable
irregularity as pleaded by the applicant.
[9]
On 3 October 2016, the Employee’s attorneys reminded their
counterparts herein about
the need to deliver a replying affidavit
and further said they take it that there was none to be produced.
[10]
A year later, on 1 November 2017, the Judge President through the
office of the Registrar of this Court directed
the applicant to file
heads of argument within 15 days and thereafter the respondent was to
deliver theirs within ten days subsequently.
The applicant’s
attorneys did not comply with this directive. Instead, the Employee's
attorneys delivered theirs in March
2018. By the time that the set
down notice was issued, the applicant had not delivered its heads of
argument.
[11]
The replying affidavit was due on or about 30 September 2016. In July
2019 the applicant delivered a replying
affidavit incorporated the
transcribed records which the Employee called for since 2016. It is
delivered more than two years later.
The respondent objected to the
late delivery of the replying affidavit.
[12]
The practice manual of this Court provides that there is no need for
a condonation application
to be delivered if a replying affidavit is
filed out of time, condonation application is only necessary if there
is an objection,
which is the case in this matter. In a condonation
application, the Court has to use its discretion taking into account
the interests
of justice which requires among other things the degree
of lateness, prospects of success in the main application, reasons
for
the delay, and prejudice. The question of whether it is in the
interests of justice to grant a condonation application depends on
the facts and circumstances of each case. Sometimes, a long delay may
result in the court not considering the prospects of success
and may
refuse the condonation application based on the long delay factor.
[13]
Considering that the replying affidavit incorporates part of the
records that the applicant should
have delivered in 2016, and perusal
of the entire contents of the replying affidavit clearly show the
applicant’s intention
is to introduce the records, and the
period of delay, and that the explanation for the delay is
inadequate. No doubt the delay
is inordinate; the Employee will be
prejudiced because he delivered his answering affidavit without
having the entire record which
the applicant now intends to use. This
will mean that the Employee had to deliver another affidavit to
address a certain part of
the evidence that has been introduced at
this late stage. Based on the above, I conclude that the condonation
application for the
late delivery of the replying affidavit should be
refused. Meaning, this Court had to proceed with the limited
arbitration records.
Grounds
for the review and the law
[14]
The applicant in its founding affidavit asserted
that the arbitrator, in respect of charge 3, has not considered
the
applicant’s testimony that the Employee was aware of his
duties, but failed to execute them, and that the arbitrator
used a
beyond reasonable doubt test instead of the balance of probabilities
test.
[15]
In respect of charge 3, the arbitrator is again accused that he
failed to take into account that
the Employee gave an interview
without approval, and he used the beyond a reasonable doubt test
instead of the balance of probabilities
test, and did this again in
respect of charge 4. In respect of charge 6, he failed to consider
the applicant’s evidence and
the responsibilities of the
Employee.
[16]
The applicant avers that the arbitrator after finding the employee
guilty of two acts of misconduct
found that dismissal was not an
appropriate sanction committed reviewable irregularity.
[17]
In respect of the review test, the Labour Appeal Court in
Fidelity
Cash Management Service v CCMA and others
[1]
held that:
“
It will often
happen that, in assessing the reasonableness or otherwise of an
arbitration award or other decision of a CCMA commissioner,
the court
feels that it
would
have arrived at a different decision or finding to that reached by
the commissioner
.
When that happens, the court will need to remind itself that the task
of determining the fairness or otherwise of such a dismissal
is in
terms of the Act primarily given to the commissioner
and that the system would never work if the court would interfere
with every decision or arbitration award of the CCMA simply because
it, that is the court, would have dealt with the matter differently.
Obviously, this does not, in any way, mean that decisions
or
arbitration awards of the CCMA are shielded from the legitimate
scrutiny of the Labour Court on review.”
[2]
I
opine that the same applies to the parties in
casu
, in that
you do not merely bring an application for review because you hold a
view that the arbitrator tasked to assess the fairness
of the
dismissal has concluded in a way that you do not like. What is
required is that an applicant has to show that the outcome
is
unreasonable, taking into account the material that was before an
arbitrator.
[18]
Regarding charge 2, it was not in dispute that the employee knew his
responsibilities and the only issue
which is apparent from the
arbitration award is whether or not the employee failed to do such
duties. The arbitrator concluded
that the Employee did execute his
duties. I have perused the arbitration award and could not agree with
the applicant that the
arbitrator used the test applicable in
criminal law which is one of beyond a reasonable doubt. Further, in
respect of this ground
of review, the applicant has not substantiated
as to why it submits that the arbitrator used an incorrect test. Same
goes with
charges 3 and 4. In respect of all the charges herein, this
Court takes into account the well reasons detailed arbitration award
which clearly indicates that the arbitrator was faced with two
diametrical versions and being aware of the onus of proof he accepted
the evidence of the Employee.
[19]
In respect of charge 6, the applicant avers thus:
“
Upon reading of
the award, it is clear that the [arbitrator] again failed to consider
the applicant’s evidence and also take
into account the
responsibility of the [Employee] regarding his job and to safeguard
the applicants items placed under his care
and supervision."
[20]
The LAC in explaining what is expected of a litigant, an applicant,
in a review application,
in
Netherburn
Engineering CC t/a Netherburn Ceramics v Mudau NO and Another
[3]
held that,
“
When you are a
party to a dispute or when you were the arbitrator or presiding
officer in some proceedings and one of the parties
brings a review
application, you, of course, read the papers to understand what the
applicant’s case is and to decide whether
to oppose or to
consent to the order sought or to abide the decision of the Court.
What you do will depend partly upon the view
you take of the
applicant’s case as disclosed in the papers. If, after reading
the applicant’s papers, you conclude
that there is absolutely
no case for you to answer in the light of the contentions or the
grounds of the application as disclosed
in the founding affidavit and
you decide to abide the decision of the Court, you would feel
legitimately aggrieved if you subsequently
learn’t that the
award was set aside by the Court not on the grounds contained in the
founding affidavit but on grounds that
were advanced in oral argument
which were not foreshadowed in the founding affidavit and without you
being afforded an opportunity
to oppose the new case. On my
understanding the rule that in motion proceedings the applicant must
make his case in his founding
affidavit and that you stand or fall by
your papers has not been abolished and still applies. It serves a
very useful purpose in
terms of fairness.”
[21]
The applicant has failed to indicate as to which evidence was not
considered by the arbitrator.
Looking at the arbitration award,
clearly, the arbitrator did deal with the essential part of the
charges before him. Nowhere in
the affidavits (taking into account
that the records are not complete) is it asserted that the arbitrator
under the summary of
evidence as contained in the award is not in
line with what was presented during the arbitration hearing. I
conclude that the applicant
failed to present grounds which support
the review application.
[22]
The applicant contends that the arbitrator after finding the Employee
guilty of the two charges
should have confirmed the dismissal as an
appropriate sanction, as it alleges that the Employee did not
consider the weight of
each misconduct in relation to the trust
relationship between it and the Employee. The arbitrator in
determining a dismissal based
on misconduct had to take into account
the appropriateness of sanction and in doing that he has to look at
both aggravating and
mitigating factors. He had to take into account
the security of employment in this country.
[4]
In paragraph 5.48 of the award the arbitrator among other things says
that the Employee’s track record is taken into account
in that
he has a clean disciplinary record. Further, that at the time of the
dismissal the Employee had been with the applicant
for 10 years and
further he takes into account the seriousness of the charges and
concludes that the dismissal is not an appropriate
sanction.
[23]
Therefore, in conclusion, should the Court
interfere with the award it would be saying to the parties that
the
Court “
would have arrived at a different decision or finding
to that reached by the [arbitrator]”
, which is not the
yardstick in a review application. I then conclude that the
arbitrator did apply his mind to the facts before
him and his
conclusion is one that a reasonable decision-maker could have made,
and he committed no reviewable irregularities.
[24]
Wherefore, the following order is made:
Order:
1. The
condonation for the late delivery of the replying affidavit is not
granted.
2. The
review application is dismissed.
3.
There is no order as to costs.
—————————————
S.
Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Mr
D S Qwelane
Instructed
by: Qwelane
Theron & Van Niekerk Inc
For
the Respondent: Adv
M C Louw
Instructed
by: Honey
Attorneys
[1]
[2008] 3 BLLR 197 (LAC)
[2]
Own underlining and emphasis.
[3]
[2009] 4 BLLR 299
(LAC), at para 29.
[4]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and others
[2007] 12 BLLR 1097
(CC).