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[2019] ZALCJHB 362
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Sekese v Minister of Telecommunications and Postal Services and Others (JR2350/17) [2019] ZALCJHB 362 (6 December 2019)
the
labour court of South Africa, johannesburg
judgmenT
Not
reportable
CASE NO: JR2350/17
In the matter between:
MABOKO
ROSEY SEKESE
Applicant
And
MINISTER OF
TELECOMMUNICATIONS
&
POSTAL SERVICES
First
Respondent
DEPARTMENT OF
TELECOMMUNICATIONS
&
POSTAL
SERVICES
Second Respondent
GENERAL PUBLIC SERVICE
SECTOR
BARGAINING
COUNCIL
Third
Respondent
COMMISSIONER
ADVOCATE D P VAN TONDER
Fourth Respondent
Heard:
4 December 2019
Judgment
delivered: 6 December 2019
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside a ruling issued by the
fourth respondent,
to whom I shall refer as ‘the arbitrator’.
In his ruling, the arbitrator refused to condone the late referral by
the
applicant of a dispute that she alleged concerned her unfair
dismissal.
[2]
The material facts are contained in the ruling. In brief, the
applicant was employed
by the second respondent on a fixed term
contract. That contract expired on 31 May 2016.
[3]
The dispute was referred to the bargaining council on 7 June 2016.
The applicant contended
that the dispute arose on 31 May 2016, the
date on which she alleged that she had been dismissed.
[4]
The application that served before the commissioner records that on
31 May 2016, at
17h 30, the applicant received a letter of dismissal
from the applicant. The applicant contended that her dismissal was
both substantively
and procedurally unfair. She recalls that on 7
June 2016 she referred a dispute to conciliation, referring the
dispute to the second
respondent’s Cape Town office and to the
bargaining council. When she did not receive feedback from the
bargaining council,
the applicant says that on 19 July 2016, she went
to the bargaining council’s offices to enquire why the matter
had not been
set down. She was informed that the council had not
received the referral form. The matter was ultimately settled for
conciliation
on 28 September 2016, and on the same date, the
certificate of non-resolution was issued. The matters referred to
arbitration on
11 October 2016 and after a hearing on the point in
limine, the matter was set down for hearing on 17 January 2017. The
presiding
arbitrator recused himself, and the matter was set down
before another commissioner on 29 June 2017. The second respondent
raised
the point in the manner that the referral to arbitration was
late. It ought to have been referred by 8 October 2016; and was
referred
on 11 October 2016. The applicant accordingly had to file an
application for condonation. The reasons proffered in the application
for condonation are that the bargaining council failed to set the
matter down and that the applicant was advised that she should
resubmit conciliation form. The applicant submitted that the degree
of lateness was not excessive, and that she was not in wilful
default, the default being that of the bargaining council. In regard
to the prospects of success, the applicant averred that ‘when
the respondent dismissed me my contract had already elapsed’.
She averred further that the dismissal was procedurally and
substantively unfair in that the chair of the disciplinary hearing
refused to postpone the matter when he ought to have, and that
the
hearing was rushed to finality at the applicant’s expense. In
regard to prejudice, the applicant recorded that if condonation
was
refused, she would be prejudiced on account of the fact that she
would not be employable in the public service, and that the
case was
important to her as it would determine her future and her reputation.
[5]
On 21 August 2017, the second respondent filed an answering affidavit
in which it
took the point that the applicant’s averment that
the dismissal was unfair because the contract of employment expired
before
the date of dismissal, disposed of her referral in its
entirety. In particular, the second respondent averred that the
bargaining
council would have no jurisdiction for the obvious reason
that there would be no dismissal in circumstances where a fixed term
contract had expired by the effluxion of time prior to any purported
date of dismissal. In other words, disciplinary proceedings
conducted
after the termination of the contract of employment or nullity since
an employer cannot dismiss a person’s contract
has terminated
and in circumstances where that person is no longer an employee.
Given that the existence of a dismissal is a self-evident
jurisdictional fact, and if there has been no dismissal, there can be
no dispute capable of being arbitrated. The second respondent
submitted for this (and other) grounds, the application for
condonation should be refused.
[6]
In his ruling, issued on 9 September 2017, the arbitrator recalled
the principles
applicable to applications for condonation, relying on
the various authorities in this and other courts on the approach to
be adopted.
In regard to the degree of lateness, the arbitrator
recorded that the referral was approximately six days late and
considered this
not to be a lengthy delay. Turning to the prospects
of success, the arbitrator noted that there was no suggestion by the
applicant
that she was dismissed as contemplated by section 186 (1)
(b) to (f) of the LRA. The commissioner observed that there could be
no dismissal where an employment relationship is terminated by
operation of law, or expires naturally after the passage of a
specified
time or on the happening of a specified event. The
arbitrator noted further that on the applicant’s own version,
the employer
had dismissed her after her contract had already
elapsed. That being so, there was no longer any employment
relationship for the
employer to terminate as contemplated by the LRA
when the employer allegedly purported to dismiss the applicant after
the expiry
of the contract. Any attempt to dismiss the applicant
after the expiry of the contract was nullity and could not constitute
a dismissal
for the purposes of the LRA. On this basis, the
arbitrator held that the applicant had no prospects of success in any
arbitration
hearing. In any event, the arbitrator held that the
applicant had failed to provide a reasonable explanation for the full
period
of delay. The explanation proffered by her was limited and did
not extend to any explanation as to why the applicant was prevented
from referring a dispute to arbitration with hundred and 20 days from
the date that she referred to conciliation as required by
the LRA.
After the certificate of outcome was issued, the applicant had six
days to refer the dispute, she referred only 13 days
later and
provided no explanation as to why she could not or did not within the
few days that remain for the dispute to be referred
after the
certificate was issued, refer the dispute. In regard to prejudice,
the arbitrator observed that the applicant had explained
that it was
important for her to have the ‘dismissal’ effected by the
second respondent set aside as it was recorded
on the PERSAL system.
The arbitrator noted that the council had no jurisdiction to assist
the applicant in this regard and that
the forum for appropriate
relief would probably be this court. For all of those reasons,
condonation was refused, with no order
as to costs.
[7]
The test to be applied is one that recognises and reinforces the
distinction between
a review and an appeal. This court is entitled to
intervene if and only if the arbitrator’s decision is one that
falls outside
of a band of decisions to which a reasonable
decision-maker could come on the available material. In
Head
of Department of Education v Mofokeng & others
[2015]
1 BLLR 50
(LAC)
,
the LAC said the following:
[30]
The failure by an arbitrator to apply his or her mind to issues which
are material to the determination of a case will usually
be an
irregularity. However, the Supreme Court of Appeal (“the SCA”)
in
Herholdt v Nedbank Ltd
and this court in
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others
have held that before such an irregularity will result in the setting
aside of the award, it must in addition reveal a misconception
of the
true enquiry or result in an unreasonable outcome…
[32]
…Mere errors of fact or law may not be enough to vitiate the
award. Something more is required. To repeat: flaws in
the reasoning
of the arbitrator, evidenced in the failure to apply the mind,
reliance on irrelevant considerations or the ignoring
of material
factors etc. must be assessed with the purpose of establishing
whether the arbitrator has undertaken the wrong enquiry,
undertaken
the enquiry in the wrong manner or arrived at an unreasonable result.
Lapses in lawfulness, latent or patent irregularities
and instances
of dialectical unreasonableness should be of such an order
(singularly or cumulatively) as to result in a misconceived
inquiry
or a decision which no reasonable decision-maker could reach on all
the material that was before him or her.
[33]
Irregularities or errors in relation to the facts or issues,
therefore, may or may not produce
an unreasonable outcome or provide
a compelling indication that the arbitrator misconceived the inquiry.
In the final analysis,
it will depend on the materiality of the error
or irregularity and its relation to the result. Whether the
irregularity or error
is material must be assessed and determined
with reference to the distorting effect it may or may not have had
upon the arbitrator’s
conception of the inquiry, the
delimitation of the issues to be determined and the ultimate outcome.
If but for an error or irregularity
a different outcome would have
resulted, it will
ex hypothesi
be material to the
determination of the dispute. A material error of this order would
point to at least a
prima facie
unreasonable result. The
reviewing judge must then have regard to the general nature of the
decision in issue; the range of relevant
factors informing the
decision; the nature of the competing interests impacted upon by the
decision; and then ask whether a reasonable
equilibrium has been
struck in accordance with the objects of the LRA. Provided the right
question was asked and answered by the
arbitrator, a wrong answer
will not necessarily be unreasonable. By the same token, if an
irregularity or error material to the
determination of the dispute
may constitute a misconception of the nature of the enquiry so as to
lead to no fair trial of the
issues, with the result that the award
may be set aside on that ground alone. The arbitrator however must be
shown to have diverted
from the correct path in the conduct of the
arbitration and as a result failed to address the question raised for
determination.
[8]
The applicant has raised a number of grounds for review. They suggest
primarily that
the arbitrator committed a gross irregularity in that
he failed to take into account that the applicant had been dismissed
by the
respondent, that the contract had been extended, that the
applicant had a reasonable explanation for the failure to refer the
dispute
timelessly, that the arbitrator’s decision was not
rational, and that the decision to which the arbitrator came was one
that
no reasonable decision-maker could reach.
[9]
The determination of reasonableness must necessarily be made by
reference to the papers
that served before the commissioner, and to
exclude such additional evidence that the applicant seeks to
introduce in these proceedings.
The case before the arbitrator was
that the reason for the delay was that the bargaining council failed
to set the matter down
for conciliation timeously, and that she had
been dismissed after the expiry of the contract. The latter
contention was repeated
in the replying affidavit. On the evidence
before him, in my view, the arbitrator made a decision that falls
within the bounds
of reasonableness.
[10]
It is apparent from these proceedings (and also those under review)
that the applicant’s
main complaint is that her employment
record in the form of the PERSAL system has been tarnished by what
she contends is irregular
disciplinary action, which she wishes to
reverse. This complaint has nothing to do with an unfair dismissal
claim, nor does it
bear on the present proceedings. The case made out
in the present application is limited to one of a review of the
condonation
ruling, and does not extend to any decision to record the
reason for dismissal on the PERSAL system as one related to
disciplinary
action.
[11]
In short, the arbitrator exercised a discretion judicially, and his
ruling is not unreasonable
having regard to the evidence that served
before him. For these reasons, the application stands to be
dismissed.
[12]
Finally, in regard to costs, the court has a broad discretion in
terms of s 162 make orders for
costs according to the requirements of
the law and fairness. Ordinarily, the court is reluctant to make
orders for costs against
aggrieved individuals who pursue a remedy
against their employers in good faith. There is no reason to consider
that the present
application does not fall into that category, and I
accordingly intend to make no order as to costs.
I make the following
order:
1.
The application is dismissed.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: Adv F P Phamba, instructed by Machete Attorneys.
For the respondent: Adv E
N Gaisa, instructed by State Attorney