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[2019] ZALCPE 23
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Masimla v National Bargaining Council for the Chemical Industry and Others (PR95/18) [2019] ZALCPE 23 (20 December 2019)
IN THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
Not
Reportable
Case
No: PR95/18
In the matter between:
GERSHON
MASIMLA
Applicant
and
NATIONAL BARGAINING
COUNCIL FOR
THE CHEMICAL
INDUSTRY First
Respondent
COMMISSIONER BOTHA JD
SELLO Second
Respondent
FRESENUIS - KABI (PTY)
LTD Third
Respondent
Heard: 20 August 2019
Delivered:
20 December 2019
JUDGMENT
LALLIE
J
[1]
The applicant was employed by the respondent until he was dismissed
for misconduct
on 7 February 2017. He was a member of CEPPWAWU (the
trade union) which referred a dispute of unfair dismissal to the
first respondent
(the bargaining council) on his behalf. The dispute
was referred outside the statutory 30 day period and the trade union
filed
an application for condonation. The application was opposed by
the third respondent. It was determined by the second respondent
(the
commissioner) who issued a ruling refusing condonation. In this
application the applicant seeks an order reviewing and setting
the
condonation ruling aside. The review application was also filed late
prompting the applicant to seek condonation for the delay.
Both the
review and condonation applications are opposed by the third
respondent.
Condonation
[2]
It is trite that in exercising the discretion whether to condone the
late filing of
a review application the Court has to consider the
extent of the delay, its explanation, prospects of success, prejudice
which
will be suffered by the parties as a result of granting or
refusing condonation
[1]
,
interests of justice
[2]
and
other facts that may be relevant to the determination of the
condonation application.
[3]
The review application was filed 6 weeks late. The extent of the
delay is substantial.
The explanation proffered for the delay is that
subsequent to his dismissal, the applicant obtained a new job in
Joubertina. He
feared jeopardizing his job security by absenting
himself from work in order to seek assistance from the Legal Aid
Office in Port
Elizabeth. Another factor which contributed to the
delay was that he did not receive the first letter from the Legal Aid
Office
which invited him to a consultation on 22 January 2018.
[4]
The third respondent attacked the reasonableness of the explanation
given by the applicant
on a number of grounds including the absence
of the explanation for the failure by the applicant’s trade
union to file the
review application on time. Notwithstanding the
attacks, the explanation for the delay was not refuted. Each case is
determined
on its own merits. In the circumstances of the matter
before me fear of losing a job an employee obtained shortly after his
or
her dismissal from another is real and reasonable. The applicant
should not be penalised for a delay which resulted from his
reasonable
efforts to protect his new job.
[5]
The applicant has made averments which will result in his review
application succeeding
should they be proved. He will also suffer
more prejudice than the third respondent in the event of the refusal
of condonation.
I have taken into account that in
Van
Wyk v
Unitas
Hospital and Another
[3]
the Constitutional Court expressed the view that the effects of the
delay on the respondent in condonation applications should
not be
under-estimated. In
Grootboom
v National Prosecuting Authority and Others
[4]
,
however, the explanation for the delay is considered to be of
significance.
[6]
A consideration of all the relevant factors point to the conclusion
that it is in
the interests of justice that condonation be granted
because the applicant has given a reasonable explanation for the
delay. He
has good prospects of success on review and will suffer
more prejudice that the respondent should condonation be refused as
he
will lose the right to have his review application heard. For
these reasons condonation is granted.
Review
[7]
The applicant was dismissed for sexual harassment/intimidation for
wilfully spreading
serious sexually explicit material via social
medial to co-employees about another employee, namely, his wife. The
applicant’s
main grounds for review are that the commissioner’s
decision refusing his condonation application is unreasonable. It
resulted
from the commissioner’s gross irregularities which
include drawing conclusions which are disconnected from evidence and
misconstruing
the nature of the enquiry he had to conduct. The
applicant also attacked the ruling based on the commissioner’s
failure to
consider his replying affidavit. The applicant further
submitted that the commissioner failed to consider the prejudice he
stood
to suffer as a result of the refusal of condonation. He
assessed prospects of success and the explanation for the delay
incorrectly.
He erred in refusing condonation having accepted that he
did not abandon the matter and that he always wanted to pursue it.
[8]
The third respondent argued, correctly, that as the applicant seeks
an order reviewing
and setting aside a condonation ruling the correct
test is whether the commissioner’s decision falls within bounds
of reasonableness
[5]
. The
reasonableness of an award is determined on the totality of the
evidentiary material which was presented at arbitration
[6]
.
The applicant attempted to rely on facts which were not part of the
arbitration proceedings. That approach is impermissible.
[9]
The applicant sought to rely on gross irregularities made by the
commissioner. The
third respondent argued, correctly so, that the
correct test is as enunciated in
SA
Library for the Blind v CCMA and Others
[7]
:
‘
to succeed with a
review on the basis of flaws in the reasoning of an arbitrator, the
applicant must demonstrate not only that flaws
existed but that the
outcome of the arbitration would necessarily have been altered if
those flaws did not exist.’
[10]
The commissioner was required, in terms of section 138 (7) of the
Labour Relations Act
[8]
(the
LRA), to give brief reasons for his decision. An assessment of the
totality of the evidentiary material placed before the
commissioner
as well as a reading of the ruling under review reflects that the
commissioner fulfilled his obligations in terms
of section 138 (7) of
the LRA. The commissioner applied the correct test for condonation.
It is common cause that the extent of
the delay was 89 days. The
commissioner cannot be faulted for finding it inordinate. The
commissioner considered prospects of success
and found none on the
basis that the applicant admitted to have sent the ‘unsavoury’
material of his wife to his fellow
employees.
[11]
The commissioner rejected the explanation proffered for the delay.
The only inference that can
be drawn from his putting the word
‘mistakenly’ in the explanation for the delay in
parenthesis is that he rejected
the allegation that the conduct
constituted a mistake. He further expressed a dim view of the
applicant’s failure to provide
proof that he pursued the matter
during the intervening period from April to October 2014. The
commissioner therefore found the
applicant’s failure to take
steps to pursue his case after it had been referred by his trade
union unacceptable. He did not
make a finding that the explanation
for the delay was reasonable in accepting that the applicant did not
abandon the matter. A
wish to pursue a dispute on its own does not
constitute valid grounds to grant condonation.
[12]
The applicant did not establish that the decision reached by the
commissioner is disconnected
from the evidentiary material before
him. The totality of the record supports the third respondent’s
version instead as it
proves that the decision is based on the
evidentiary material presented. The applicant failed to prove that
the commissioner committed
irregularities which resulted in him
reaching an unreasonable decision. The commissioner’s decision
not to condone the excessive
delay for which no reasonable
explanation has been given is reasonable. His omission to deal with
prejudice in his ruling did not
render his decision unreasonable
because the prejudice the applicant sought to rely on, namely, that
his name would be viewed in
a negative light by the society falls
outside the realm of the prejudice the commissioner had to consider
in reaching his decision.
[13]
In the premises the following order is made:
Order:
1. The
application for condonation of the late filing of the review
application is granted.
2. The
review application is dismissed.
Z.
Lallie
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Ms Van Staden of the Justice Centre
For
the Respondent:
Advocate Grogan
Instructed
by:
Joubert Galpin Searle
[1]
See:
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531 (A)
[2]
See:
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others
2000 (2) SA 837 (CC).
[3]
2008 (2) SA 472 (CC).
[4]
Grootboom
v National Prosecution Authority
[2014]
1 BLLR 1
(CC).
[5]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC).
[6]
Herholdt
v Nedbank
[2013]
11 BLLR 1074 (SCA).
[7]
(2019)
40 ILJ 422 (LC) at para 22
[8]
Act
66 of 1995, as amended.