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[2020] ZALCJHB 74
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National Education Health and Allied Workers Union (NEHAWU) OBO Naidoo v CCMA (JS 589/15) [2020] ZALCJHB 74 (23 April 2020)
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Not
Reportable
Case
no: JR2661/17
In
the matter between:
NATIONAL
EDUCATION HEALTH AND ALLIED
WORKERS
UNION (NEHAWU) obo DANIEL NAIDOO
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION (CCMA) First
Respondent
MOHAMED
RAFEE
N.O
Second
Respondent
ENERGY
AND WATER
SETA Third
Respondent
Heard:
25 February 2020
Delivered:
This judgment was handed down electronically by circulation to the
parties' legal representatives
by email, publication on the Labour
Court’s website and released to SAFLII. The date and time for
hand-down is deemed to
be 10h00 on 8 May 2020.
Summary:
Condonation application for the late delivery of the review
application – without prospects
of success, explanation for the
delay is inconsequential.
JUDGMENT
NKUTHA-NKONTWANA,
J
Introduction
[1]
In this application, the applicant, NEHAWU,
seeks an order to review and set aside the arbitration award issued
by the second respondent
(commissioner) under case number
GAJB18485-16, dated 16 October 2017. The commissioner dismissed the
claim by NEHAWU that the second
respondent committed an unfair labour
practice by not promoting its member Mr David Naidoo (Mr Naidoo).
[2]
NEHAWU’s main impugn is that the commissioner rendered
an unreasonable award. The third respondent is defending the impugned
award and also opposes NEHAWU’s condonation application for the
late delivery of the review application.
Condonation
application
[3]
The degree of lateness is about five weeks.
The explanation for the delay is that the NEHAWU official was snowed
under in his duties
and as result could not keep taps of the internal
processes that had to be undertaken in order to secure instructions
to launch
these proceedings. However, it would seem that Mr Naidoo
constantly kept following up on progress made in his matter.
[4]
The crux of the third respondent’s
opposition is that NEHAWU has no prospects of success. The third
respondent submitted that
even if the degree of lateness was
negligible and the explanation reasonable, condonation should not be
granted because there are
no prospects of success.
[5]
This Court has on several instances
rejected the explanation that seeks to blame the union officials or
the structures of the union
for the delay, as is the case in the
matter at hand. However, given the third respondent’s line of
attack, I propose not
to belabour this point but to proceed to deal
with the prospects of success.
Pertinent
facts
[6]
The facts in this matter are predominantly common cause. Mr
Naidoo commenced his employment with the third respondent on 17
February
2011 and held a position of an Administration Clerk. On 10
April 2014, he was promoted to the position of Records and Facilities
Administrator. There were 11 other Records and Facilities
Administrators whose appointments preceded that of Mr Naidoo.
[7]
On 1 April 2015, a year later, the third respondent promoted
the 11 Records and Facilities Administrator to the positions of
Practitioners.
Mr Naidoo was not considered for this promotion.
Discontented by his exclusion, Mr Naidoo referred an unfair labour
practice dispute.
A conciliation was unsuccessful. The matter
proceeded to arbitration. The commissioner found that Mr Naidoo did
not qualify for
a promotion and that the third respondent did not
commit an unfair labour practice, hence the impugned award.
Legal
principles and application
[8]
In
National
Union of Mineworkers v Council for Mineral Technology
,
[1]
the Labour Appeal Court (LAC) reaffirmed the
principles
set in
Melane
v Santam Insurance Co Ltd
[2]
and
stated that:
‘
The
approach is that the Court has a discretion, to be exercised
judicially upon a consideration of all the facts, and in essence
it
is a matter of fairness to both sides. Among the facts usually
relevant are the degree of lateness, the explanation therefore,
the
prospects of success and the importance of the case. These facts are
interrelated: they are not individually decisive. What
is needed is
an objective conspectus of all the facts. A slight delay and a good
explanation may help to compensate for prospects
of success which are
not strong. The importance of the issue and strong prospects of
success may tend to compensate for a long
delay.
There
is a further principle which is applied and that is that without a
reasonable and acceptable explanation for the delay, the
prospects of
success are immaterial, and without prospects of success, no matter
how good the explanation for the delay, an application
for
condonation should be refused
…’
(Emphasis added)
[9]
Turning to the matter at hand, it is common cause that the promotion
of Mr Naidoo as well
as that of the 11 Records and Facilities
Administrators was consequent to the third respondent’s
organisational restructuring
which resulted in a new organogram being
adopted. The employees of the third respondent were placed into
the new organogram
in terms of a matching and placing exercise that
commenced at the beginning of 2014. The effect of the matching and
placing exercise
was that some employees were appointed to positions
that were senior.
[10]
Mr Naidoo was one of the employees who were the first to benefit by
being promoted. His previous position
was graded at B4; whilst
the current position is graded at C2. The whole matching and placing
process was not undertaken in terms
of the normal recruitment
process. No interviews were conducted with the employees before
their placement into senior positions.
[11]
The 11 Records and Facilities Administrators were senior to Mr Naidoo
in terms of number of years and level
of experience.
None
of the 11 Records and Facilities Administrators were promoted in
April 2014 when Mr Naidoo was promoted to his current position.
They
were merely placed in their administrator positions within the new
organogram.
[12]
Mr Naidoo conceded during the arbitration
proceedings that his promotion on
1 April 2014
was
the fruit of
the matching and placing exercise. On the other
hand, Mr Errol Gradwell (Mr Gradwell), the third respondent’s
Chief Executive
Officer, testified that there were no grounds to
promote Mr Naidoo together with the 11 Records and Facilities
Administrators as
he was one of the first employees to be promoted in
April 2014. Conversely, the 11 Records and Facilities Administrators
were only
promoted a year later. As a result, Mr Naidoo could not
benefit twice from the same matching and placing exercise or
organisational
review.
[13]
Counsel for Mr Naidoo was constrained to concede that Mr Naidoo had
already benefited from the same process
that promoted the 11 Records
and Facilities Administrators. However, he was adamant that there was
nothing unbecoming with benefiting
twice from the same process within
a period less than a year. That is so because, as he submitted, the
third respondent’s
promotion policy permits it. However, this
submission is untenable in the light of Mr Naidoo’s concession
that his promotion
to the position of an Administrator and that of
the 11 Records and Facilities Administrators to positions of
Practitioners came
about due to the restructuring process and not the
promotion policy. In essence, the restructuring process was an
exception to
the rule.
[14]
In my view, proverbially, Mr Naidoo wants to have his cake and eat
it. His claim met its demise when he conceded
that his promotion to
be an Administrator and the promotion of the 11 Records and
Facilities Administrators to be Practitioners
was birthed by the same
restructuring process. As such, the finding by the commissioner that
he was not eligible for a further
promotion in terms of the same
process is beyond reproach.
[15]
It stands to reason, therefore, that the
application for condonation is stillborn
without prospects of success. The degree of lateness and
the
reasonable explanation for the delay are of no consequence.
Conclusion
[16]
In the circumstances,
the
application for condonation stands to be dismissed. It is purposeless
to traverse the other issues that arose in this matter
given the
dipositive nature of the finding on condonation.
Cost
[17]
Taking into account the persisting collective bargaining relationship
between the
parties, it would offend the principle of law and equity
to grant costs against NEHAWU.
[18]
In the circumstances, I make the following
order:
Order
1.
The condonation application for the late
delivery of the review application is dismissed.
2.
There is no order as to
costs.
__________________
P.
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant: Advocate
T Moretlwe
Instructed
by: Mdhluli
Pearce & Mdzikwa Incorporated
For
the third respondent: Sandile
Tom of Werksmans Attorneys
[1]
[1999]
3 BLLR 209
at 211-213; see also
Queenstown
Fuel Distributors CC v Labuschagne NO and Others
[2000]
1 BLLR 45
(LAC) at para 24;
Steenkamp
and Others v Edcon Limited
2019
(7) BCLR 826
(CC); (2019) 40 ILJ 1731 (CC) at paras 27 and 37;
[2]
1962
(4) SA 531
(A).