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[2019] ZALCJHB 303
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Bouwer v Supreme Pets CC and Others (JR121/2018) [2019] ZALCJHB 303 (8 November 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no:
JR121/2018
In
the matter between:
ANDRIES
BOUWER
Applicant
and
SUPREME
PETS CC
First Respondent
COMMISSIONER
DESMOND LYNCH
Second Respondent
COMMISSION FOR
CONCILIATION
MEDIATION
AND ARBITRATION
Third Respondent
Heard:
10
July 2019
Delivered:
08 November 2019
JUDGMENT
BOSWEL,
AJ
Introduction
[1]
This
an application in terms of rule 7A of the Rules of the Labour Court
for an order in terms of section 145 and/or 158 (1) (g)
of the Labour
Relations Act
[1]
(the LRA) to
review and set aside a condonation ruling issued by the third
respondent dismissing the applicant's condonation application.
Background
[2]
The applicant was found guilty of theft, and was advised of
the decision to dismiss him on 7 February 2017, and the applicant was
advised of this on 8 February 2017. On 16 February 2017, the
applicant's attorneys lodged an appeal dated 14 February 2017 against
the verdict, sanction and substantive fairness of the dismissal. I
pause to note that on 9 February 2017, the applicant's attorneys
enquired from the first respondent as to what the time limits were in
which an internal appeal could be lodged and was advised
that they
had five working days to do so. The internal appeal should therefore
be lodged on or before 14 February.
[3]
Despite the appeal being lodged out of time the first
respondent nevertheless considered the appeal and on 17 February,
upheld the
verdict and sanction, and dismissed the appeal. The
outcome of the appeal was never formally communicated to the
applicant and
it was only eventually attached to the first
respondent's bundle of documents dated 20 July in its opposing papers
to the applicant's
application for condonation to the third
respondent.
[4]
As the respondent consistently failed to advise the applicant
of the outcome of the appeal, despite being repeatedly asked for
same,
the applicant referred a unfair dismissal dispute to the third
respondent on 13 March 2017, only to be advised by the third
respondent
that a condonation application must be submitted as he was
allegedly out of the 30 day time limit from his date of dismissal,
being
7 February 2017. On 20 July 2017, the third respondent
ruled that as the applicant’s condonation application was
defective,
that it accordingly lacked jurisdiction to hear the matter
and that the applicant must re-refer the dispute which he did on 20
July 2017 together with a condonation application.
[5]
On 9 November 2017 the second respondent made a ruling
dismissing the applicant's condonation application. In doing so
the
second respondent found that the applicant was
"21 days
late"
and although "
not excessive"
on the
basis of the applicant's "
uncontested admission of guilt"
at the disciplinary hearing, the applicant must
"suffer the
consequences"
of his misconduct and accordingly dismissed
the application.
[6]
The first respondent argues that the applicant's appeal was
late as it was lodged out of the five-day period calculated from the
date of dismissal. The first respondent also says that according to
its internal appeal procedures that in the event of a dismissal
being
confirmed, the date of dismissal should be the date on which the
"employee is advised of the outcome of the appeal hearing"
.
It further states that the dismissal only becomes effective on the
date that the employee is advised of the outcome of the
appeal
hearing. The first respondent then states in its heads of
argument that as the appeal was not "
lodged within the five
days… no appeal was lodged".
This a
fallaciously misleading argument as the first respondent indeed
considered the applicant’s appeal, and indeed made
a finding
which was withheld for a considerable length of time from the
applicant, which appears to have created a misapprehension
in the
applicant’s mind that it should apply for and be granted
condonation, regarding the initial referral which resulted
in a
defective “condonation” application and the 20 July
ruling.
[7]
According to section 191(1)(b)(i) of the LRA, an employee may
refer a dispute about the fairness of the dismissal to the third
respondent
within 30 days of the date of the dismissal, or if it is a
later date within 30 days of the employer making a final decision to
dismiss or uphold the dismissal. Subsection 191(1)(b)(i) was
enacted to provide that the 30 day deadline runs from the date
that
the employer takes a final decision to dismiss the employee, that is
after the dismissal of an appeal
, if any.
[8]
The first respondent's internal appeal procedures also provide
that the date of dismissal is the
date that the employee is
advised of the appeal hearing
. Although the first
respondent made a final decision to dismiss the applicant's appeal on
17 February 2017, this decision
was only informally communicated to
the applicant when it filed its opposing papers to the applicant’s
condonation application
which was heard on 20 July 2017, by attaching
a copy of the appeal outcome thereto.
Evaluation
[9]
The proviso (section 191 (1)(b)(i) of the LRA) that the 30 day
period must run from the date on which the employer takes a final
decision to dismiss or uphold the dismissal was added to the LRA by
way of an amendment to avoid compelling employees to seek condonation
for a late referral if their internal appeals were concluded more
than 30 days after the initial decision to dismiss. This
amendment means that the time limit runs from the date on which the
employee is informed that the appeal is unsuccessful.
[10]
As the applicant was only informed,
albeit
informally,
of the outcome of the appeal on 20 July 2017, the 30 day period in
which the employee had to refer an unfair dismissal
dispute to the
CCMA commenced on this date, despite his earlier unsuccessful
referral. Added to this is the employer's own appeal
procedures
providing that the date of dismissal is the date that the employee is
advised of the outcome of the appeal hearing.
The applicant completed
and signed the second 7.11 referral form on this date, 20 July 2017.
[11]
The applicant's application does not
disclose when and how the 20 July 2017 referral was served and filed
on the first and third
respondents which is critical to its
condonation application to this Court. The only indication
which I have in this regard
is an e-mail attached to the applicant’s
bundle dated 23 August 2017, from the first respondent to the
applicant's attorneys
confirming receipt of the applicant's referral
and condonation application which they received on 22 August 2019.
[12]
According to section 191(1)(b)(i) of the
LRA the 20 July 2017 referral should have been made within 30 days of
the date of the applicant
becoming aware of the fact that the first
respondent had made a final decision to uphold the dismissal, which
was 20 July 2017.
[13]
It is trite that the date of referral is
the date that the referral papers are properly filed at the CCMA with
or without a condonation
application and not the date that it is
served on the employer. There is no indication in the applicant's
application when the
second referral was served on the CCMA, and
clearly this should have been within the 30 day period calculated
from 20 July 2017.
The second respondent similarly gives no
indication in his ruling as to when the 20 July 2017 referral was
received other than
to state that it is 21 days late. I,
however, without any information to the contrary must accept this as
being correct as
this period has not been disputed by any of the
parties to this application.
Late
filing of review application
[14]
The first respondent also says in its
answering affidavit that this review application has been brought out
of time and should have
been delivered on or before 21 December 2017
as the date that the condonation ruling was issued was 9 November
2017. This
is not denied by the applicant.
[15]
Section 145 (1) of the LRA deals with
the review of arbitration awards and in particular states that an
application for an order
reviewing and setting aside an arbitration
award must be brought within 6 weeks of the date the award was served
on the applicant.
The arbitrators ruling was served on the
applicant’s attorneys on 9 November 2017. This application was
launched on 23 January
2018 without a condonation application
attached, which makes it 6 weeks and 5 days late.
[16]
I find it inconceivable that the same
firm of attorneys who assisted the applicant throughout the
proceedings served and filed the
20 July 2017 referral late, and then
subsequently launched these proceedings substantially out of time,
and without a condonation
application or at the least an attempt to
explain the delay.
[17]
The granting of condonation is the
exercise of discretion by a court. Absent of any application
for condonation for the late
filing of this review application this
court lacks the jurisdiction to consider and condone the late filing
of the applicant's
review application in terms of section 145(1A) of
the LRA which is to do so on good cause shown.
[18]
Section 158 of the LRA deals with the
powers of the Labour Court, and section 158(1)(f) of the LRA empowers
this Court to condone
the late filing of any document with, or the
late referral of any dispute to, this Court. This is however
subject to the
provisions of the LRA which in this case clearly state
that this can only be done if good cause has been shown.
[19]
In
the matter of
A
Hardrodt (SA) (Pty) Ltd v Behardien and Others
[2]
the Labour Appeal Court concluded that the court
a
quo 'should not have condoned the late filing of the review on the
basis of the totally inadequate explanation'.
The onus to satisfy this Court that condonation should be granted is
on the applicant, which the applicant’s attorneys have
completely failed to do.
[20]
This
application was also brought in the alternative in terms of section
158(1)(g) of the LRA, and although there is no statutory
time limit
in terms of this section for which such reviews must be launched, it
has been held by this Court that they must be launched
within a
reasonable time which has also been held to be six weeks.
[3]
[21]
I find that the delay in bringing this
application is unreasonable, and more so in light of the fact that
there is no condonation
application attached.
Costs
[22]
It would be unfair to burden the
applicant with a costs order in light of the conduct of its attorneys
throughout this matter, considering
that there was no attempt to
rescue the applicant’s case by bringing it within the
jurisdiction of this court. I therefore
must consider
alleviating the applicant’s plight to some degree by ordering
that the applicant’s attorneys pay the
applicant’s costs
on a
de bonis propriis
basis.
[23]
The
circumstances in which a costs order
de
bonis propriis
may justifiably be imposed are negligence in a serious degree on the
part of the party against whom such a costs order is sought.
Thus, in
Moloi
and another v Euijen and another
[4]
the Labour Appeal Court held as follows:
“
Costs
de bonis propriis are awarded against legal practitioners in cases
which involve serious delinquencies such as dishonesty,
wilfulness or
negligence in a serious degree.”
[24]
This
standard was confirmed by the Constitutional Court as appropriate in
SA
Liquor Traders Association v Chairperson, Gauteng Liquor Board and
Others
[5]
in
the following terms:
“
An
order of costs de bonis propriis is made against attorneys where a
court is satisfied that there has been negligence in a serious
degree
which warrants an order of costs being made as a mark of the court’s
displeasure.”
[25]
I am accordingly satisfied that there
has been negligence to such a serious degree by the applicant’s
attorneys that this
warrants an order of costs against the
applicant’s attorneys
de bonis
propriis
. However, before
doing so it appropriate to provide them with an opportunity to make
representations to this Court why such
an order should not be made.
[26]
In the premises the following order is
made:
Order
1.
The applicant’s review application
in terms of
section 145
and
158
(1)(g) of the
Labour Relations Act,
1995
, is dismissed with costs for lack of jurisdiction.
2.
The applicant’s attorneys must
deliver an affidavit to this Court
within
30 days of the date of this judgment, explaining why they should not
be ordered to pay the applicant’s costs
de
bonis propriis
on an attorney and
own client scale.
3.
In the absence of an explanation to the
satisfaction of this Court the applicant’s attorneys shall pay
the applicant’s
costs
de bonis
propriis
on a scale as between
attorney and own client.
_________________
Boswel AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Advocate HW Botes
Instructed
by:
Hefferman Attorneys
For
the Respondents: Mr
HB Van Niekerk
[1]
Act 66 of 1995, as amended.
[2]
(2002) 23 ILJ 1229 (LAC).
[3]
See:
SACCAWU
obo Manzana and others v Pick ‘n Pay, Kimberley and others
[2000]
10 BLLR 1065 (LC).
[4]
(1999) 20 ILJ 2829 (LAC).
[5]
2009 (1) SA 565
(CC).