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[2019] ZALCPE 24
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Standard Bank of South Africa Limited v Julyan and Others (PR196/18) [2019] ZALCPE 24 (20 December 2019)
IN THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
Not
Reportable
CASE
NO: PR196/18
In the matter between:
THE STANDARD BANK OF
SOUTH AFRICA LIMITED
Applicant
and
EDWIN
JULYAN
First Respondent
THE COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
Second Respondent
COMMISSIONER F SAULS
N.O
Third
Respondent
Heard: 22 August 2019
Delivered:
20 December 2019
JUDGMENT
LALLIE
J
[1]
The first respondent was employed by the applicant as a Business
Banking Account Executive.
He resigned on 8 September 2014 after 30
years of service. The reasons for his resignation were ill-health and
his desire to spend
time with his family. On 31 July 2018 he referred
a dispute to the CCMA and filed an application for condonation of the
late referral
of his dispute. The condonation application was
determined by the third respondent (the commissioner) who issued a
ruling on 6
September 2018 condoning the late referral of the
dispute. In this application the applicant seeks an order to have the
condonation
ruling reviewed and set aside. The application is opposed
by the first respondent.
[2]
The applicant’s main ground for review is that the commissioner
committed gross
irregularities in the conduct of the arbitration
which resulted in his reaching an unreasonable decision.
Notwithstanding opposition
by the first respondent, the applicant
established the validity of its grounds for review. A ruling may be
reviewed and set aside
when it is unreasonable in that it constitutes
a decision a reasonable decision-maker could not reach
[1]
.
[3]
The applicant relied on errors made by the commissioner in the
conduct of the arbitration.
The test for the review therefore is
firstly, whether the commissioner misconceived the dispute by
undertaking the wrong enquiry
or by undertaking the correct enquiry
incorrectly. Secondly, whether the commissioner reached an
unreasonable decision
[2]
.
[4]
The applicant illustrated that the commissioner misconceived the
enquiry he had to
undertake and reached an unreasonable decision. The
commissioner conducted the correct enquiry in that he identified the
test he
had to apply in deciding whether the late referral of the
first respondent’s dispute should be condoned but applied it
incorrectly.
The commissioner identified the relevant factors for the
test for condonation which include the extent of the delay, its
explanation,
prospects of success, prejudice to the parties in the
event of condonation being granted or refused and the interest of
justice.
It is trite that the factors should be considered
collectively and balanced against each other. Absence of a valid
reason and prospects
of success are, however, sufficient for refusing
condonation.
[5]
The extent of the delay is 3 years and nine months. It is common
cause that the explanation
proffered by the first respondent did not
cover the entire period of lateness. The explanation given by the
first respondent was
that he had referred his matter to various
government and legal institutions to establish whether the correct
procedures had been
followed in his case. The institutions include
SARS, SA Treasury, Office of the Tax Ombud, the Public Protector,
International
Labour Organisation, World Health Organisation, the
Commissioner for Conciliation, Mediation and Arbitration, Legal Aid
SA and
the Department of Labour.
[6]
The result he required from the CCMA is recorded as follows:
‘
1.
Re-assess the matter and ensure that I receive the benefits that I
lost which includes:
Ø
Compensation Fund
Ø
Unemployment Insurance Fund
Ø Medical
Aid portion of pension fund.
Ø Reverse
the tax implication of pension fund.
Ø Medical
Aid.
Ø Loss of
income from leaving the bank until normal retirement age.
2. Seeing
that I still have a number of years that I can work I shall even
consider taking a job, that does not require
travelling, at the
salary previously earned if it is close by.
Change the reason from
“Resignation” to “Incapacity/Ill-Health”
enabling me to claim UIF that I was entitled
to.
Payment
of Medical Aid portion of pension Fund.
Reversed
tax paid on pension fund.’
[7]
The applicant correctly argued that the first respondent made the
first enquiries
about the manner in which the employment relationship
was terminated on 16 October 2015, over a year after his resignation.
The
commissioner erred in not attaching the appropriate weight to the
first respondent’s omission to provide an explanation for
the
period. It will be illustrated later in this judgment that the error
had an impact on the reasonableness of the commissioner’s
decision.
[8]
I accept the applicant’s argument that the commissioner erred
in granting condonation
in the absence of prospects of success. The
first respondent resigned. A dispute he can refer to the CCMA against
the applicant
which arises from the resignation is constructive
dismissal as envisaged in section 186 (1)(e) read with section 191 of
the Labour
Relations Act
[3]
.
Section 186 (1)(e) defines as dismissal the employee’s conduct
of resigning from work because the employer made continued
employment
intolerable. The reasons the first respondent gave the applicant for
his resignation are ill-health and his desire to
spend time with his
family. He did not complain about the applicant’s conduct. The
result the first respondent seeks from
the CCMA falls outside the
realm of its jurisdiction. He made no submissions in respect of
prospects of success relating to re-employment.
The commissioner’s
error of granting condonation is the absence of a reasonable
explanation and prospects of success rendered
his condonation ruling
unreasonable.
[9]
The applicant sought an order substituting the condonation ruling.
For the reasons
already given, the delay of three years and nine
months most of which has not been explained and the lack of prospects
of success
point to the conclusion that it is in the interest of
justice that the first respondent’s delay in referring the
dispute
to CCMA not be condoned.
[10]
In the premises, the following order is made:
Order:
1. The
condonation ruling issued by the third respondent under case number
ECPE5251-16 dated 6 September 2018
is reviewed and set aside and
substituted with the following:
1.1
The application for condonation of the first respondent’s late
referral
of the dispute to the second respondent is dismissed.
Z.
Lallie
Judge
of the Labour Court of South Africa
Appearances
:
For
the Applicant:
Mr Cithi of Mervyn Taback
Inc
For
the Respondent:
Mr E Julyan In person
[1]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC).
[2]
Herholdt
v Nedbank (2019) 40 ILJ 422 (LC)
[3]
Act
66
of 1995 as amended