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[2020] ZALCJHB 4
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Malatlhela v Maxi Security and Others (JR2106/15) [2020] ZALCJHB 4 (21 January 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR 2106/15
In the matter between:
JOHANNES LESETJA
MALATLHELA
Applicant
and
MAXI SECURITY
First Respondent
MALUBANE BUTI N.O.
COMMISSIONER
Second Respondent
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
Third Respondent
Heard: 26 November
2019
Delivered: 21 January
2020
JUDGMENT
LALLIE J
[1] This is an unopposed
application to review and set aside an arbitration award of the
second respondent (the Commissioner).
[2] The relevant facts of
this matter are that the applicant was an employee of the first
respondent until he was dismissed on 23
April 2013. He referred an
unfair dismissal dispute to the third respondent, the Commission for
Conciliation, Mediation and Arbitration
(the CCMA) which issued a
certificate of the non-resolution of the dispute on 10 September
2013. On the same day the applicant
delivered a request for
arbitration at the CCMA. The CCMA dispatched a letter to the
applicant by registered mail on 3 October
2013, informing him that
his arbitration request was fatally defective as he had failed to
attach proof of its service on the first
respondent. The applicant
cured the defect on 16 October 2014 when he faxed to the CCMA proof
that he had served the request for
arbitration on the first
respondent on 16 October 2014. The applicant simultaneously filed an
application for condonation of the
late filing of his request for
arbitration.
[3]
The CCMA scheduled the condonation hearing for 24 November 2014 and
notified the applicant of the hearing date by registered
mail on 31
October 2014. Only the first respondent was represented at the
condonation hearing. After considering the application,
the second
respondent issued the ruling under review in which he refused
condonation. In terms of section 145 (1) of the Labour
Relations
Act
[1]
(the LRA), the applicant
was required to have filed his review application within 6 weeks of
the date on which the condonation
ruling was served on him. Although
the condonation ruling is dated 24 November 2014 and the review
application filed on 4 November
2015, the CCMA omitted proof of the
date on which the condonation ruling was delivered on the applicant
from the arbitration record.
The delay, although noted, could not be
imputed on the unrepresented applicant
[4] The applicant’s
grounds for review are that in taking his decision refusing
condonation, the commissioner failed to consider
that he had
sustained injuries as a result of an assault by the first respondent
from which he was still recovering. The applicant’s
case
therefore is that the condonation ruling is defective as envisaged in
section 145 (2) (a) (ii) of the LRA in that he committed
a gross
irregularity in the conduct of the condonation hearing.
[5] The commissioner’s
reasons for refusing condonation were that the referral was
excessively late. The applicant failed
to provide reasons for the
delay and averments on prospects of success in his affidavit. The
commissioner concluded that without
reasons for the delay and
prospects of success it would not be in the interest of justice to
grant condonation.
[6]
For the condonation ruling to be reviewed and set aside the applicant
was required to have established that the commissioner’s
decision was unreasonable
[2]
.
The reasonableness of the condonation ruling has to be assessed
on the evidentiary material before the commissioner when
he was
taking his decision on condonation
[3]
.
The only reason for the delay the applicant presented at the CCMA was
that he was at his home, in pain, after he had been assaulted
by
management. The applicant left unanswered all the questions which
prompted him to give information on the other relevant factors
which
the commissioner had to consider.
[7] In addition, he did
not seize the opportunity of making oral representations when the
condonation hearing was set down as he
did not attend it. The
commissioner can, in those circumstances, not be faulted for basing
his decision on the evidentiary material
at his disposal. When the
information on condonation the applicant presented at the CCMA is
considered against the test for condonation,
it supports the
commissioner’s decision. The condonation ruling is therefore
based on the evidentiary material before the
commissioner and falls
within bounds of reasonableness.
[8]
In the premises, the following order is made:
Order
1.
The
application for review is dismissed.
_______
Z.
Lallie
Judge
of the Labour Court of South Africa
Appearances
:
For
the Applicant:
In person
For
the Respondent:
No appearance
[1]
Act 66 of 1995, as
amended
[2]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and
Others
[2007]
12 BLLR 1097 (CC).
[3]
Herholdt v
Nedbank
(2013)
34 ILJ 2795 (SCA).