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[2020] ZALCJHB 194
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McCann Worldgroup SA (Pty) Ltd v Landman and Others (JR 48/19) [2020] ZALCJHB 194 (19 June 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: JR 48/19
In
the matter between:
McCANN
WORLDGROUP SA (PTY) LTD
Applicant
And
RONEL
LANDMAN
First
Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
Second Respondent
MUSOLWA RAPALALANE
N.O
Third Respondent
Enrolled:
11 June 2020
Delivered:
19 June 2020
In
view of the measures implemented as a result of the Covid-19
outbreak, this judgment was handed down electronically by circulation
to the parties' representatives by email. The date for hand-down is
deemed to be on 19 June 2020.
JUDGMENT
PRINSLOO,
J
Introduction
[1]
The Applicant filed an application to
review and set aside a condonation ruling dated 6 December 2018 and
issued under case number
GAJB24157-18. The Third Respondent
(arbitrator) granted condonation for the late referral of the First
Respondent’s (Respondent)
constructive dismissal dispute.
[2]
The Respondent opposed the application.
[3]
The matter was enrolled for hearing on 11
June 2020. In accordance with the provisions of the ‘Urgent
directive in respect
of access to the Labour Court’ dated 28
April 2020, which is applicable with effect from 4 May 2020 until the
end of the
July 2020 recess, the parties agreed that this matter be
disposed of without oral argument. I have considered the papers filed
as well as the written heads of argument submitted by the parties.
Material background
facts
[4]
The Respondent was employed by the
Applicant from July 2016 and in July 2017 she was promoted to the
position of operations manager.
She resigned on 24 August 2018 and
her resignation was preceded by allegations of sexual assault.
[5]
The Respondent referred a constructive
dismissal dispute to the Second Respondent (CCMA) on 25 October 2018
wherein she challenged
the fairness of her dismissal. The referral
was accompanied by an application for condonation as the dispute was
referred out of
time and was 28 days late.
[6]
The arbitrator granted the Respondent
condonation for the late referral of the constructive dismissal
dispute and afforded her 90
days to refer her dispute for
arbitration.
[7]
The Applicant seeks the review and setting
aside of the aforesaid condonation ruling.
The condonation
application
[8]
In order to assess the arbitrator’s
findings and the ruling he ultimately issued, it is necessary to
consider the evidence
placed before him.
[9]
In the condonation application that served
before the arbitrator, the Respondent provided a background to the
alleged incident of
sexual assault on 3 August 2018 and the events
subsequent thereto that led to her resignation on 24 August 2018.
[10]
The Respondent’s explanation for the
late referral of her dispute was as follows: there were various
correspondence exchanged
between her attorneys and the Applicant’s
attorneys in an attempt to resolve the matter amicably. From 24
August to 21 September
2018, she was emotionally extremely unstable
and she was advised by her psychologist and psychiatrist no to take
on any additional
stress, to distance herself from the incident and
to avoid having to re-live it in her mind. The Respondent explained
that in instructing
her attorney and reviewing the letters between
the attorneys, she was required to re-live the incident and suffer
the same trauma
over again. In order to protect herself from reliving
the traumatic experience and on advice of her doctors and legal
representatives,
she decided that it would be best for her to settle
the dispute.
[11]
These attempts failed and after receiving
the outcome of a disciplinary hearing on 5 October 2018, the
Respondent realised that
the Applicant would continue to mistreat her
and she decided that she had to take the matter further.
[12]
She explained that she delayed in referring
the dispute as she wanted to exhaust all other remedies in an attempt
to deal with the
matter amicably and in order to limit any further
emotional trauma.
[13]
On the prospects of success, the Respondent
submitted that she has good prospects of success because she was
subjected to sexual
assault in the workplace. She lodged a formal
grievance but the Applicant failed to follow its own policies and
procedures in respect
of the investigation of such grievance. She
further submitted that the Applicant victimized her and forced her to
return to work
without having investigated her grievance formally,
without taking any measure to protect her and without taking her sick
leave
into account. The Applicant rendered any prospect of continued
employment intolerable as it did not take the issue of sexual assault
seriously and she could not reasonably be expected to continue
working in the same environment as the person who had sexually
assaulted her.
[14]
The Applicant opposed the application for
condonation and its case was that on 5 August 2018, two days after
the events of 3 August
2018, the Respondent indicated that she wanted
to lay a formal complaint. On 6 August 2018, a meeting was held with
the Respondent
and she was assured that an investigation would
commence on the same day and whilst the investigation was ongoing,
she could remain
at home.
[15]
On 7 August 2018, the Applicant
communicated with the Respondent via email and it was confirmed that
the Applicant was deeply concerned
about the allegations and was busy
investigating the matter. The Respondent was reminded that she had
the Applicant’s full
support, she was offered counselling
through a service provider and time off during the time that the
investigation was conducted.
It was confirmed that the Respondent
indicated that she did not want to lay a criminal or formal charge
against Mondli (the alleged
perpetrator) but that she wished for him
to be removed from the Applicant’s premises.
[16]
During the week of 6 – 10 August
2018, the Applicant conducted an investigation during which CCTV
footage was reviewed and
relevant individuals were interviewed.
Mondli’s version was that the interaction between him and the
Respondent on 3 August
2018 was consensual.
[17]
On 10 August 2018, the Applicant had a
meeting with the Respondent, where the findings of the informal
investigation were discussed
with her. The informal investigation was
concluded after this meeting.
[18]
The outcome of the informal investigation
was inconclusive and absent a positive finding that Mondli had indeed
sexually assaulted
the Respondent, there was no basis to remove him
from the Applicant’s premises.
[19]
The Applicant sought legal advice in the
circumstances as it was aware of the fact that its sexual harassment
policy and grievance
procedure had to be given effect. The Applicant
was advised to treat Mondli as an employee accused of having
committed serious
sexual misconduct and that it had to comply with
its own policies and procedures.
[20]
In terms of the aforesaid policies, the
following procedure has to be followed after the occurrence of
alleged sexual assault: the
victim must report the alleged assault to
senior management, management must conduct an informal investigation
and if the conduct
in question justifies disciplinary action, it must
be instituted pursuant to the terms of the grievance procedure.
[21]
It became apparent to the Applicant that a
formal enquiry was necessary to resolve the Respondent’s
complaint as a formal
enquiry would be the only way to test all the
evidence and determine the veracity of the allegation and because no
disciplinary
action could be taken against Mondli in the absence of a
formal enquiry.
[22]
Accordingly, an email was sent to the
Respondent on 10 August 2018 wherein it was relayed to her,
inter
alia,
that an informal investigation
could not determine the veracity of either her or Mondli’s
version and that she has the right
to instruct the Applicant to
formally proceed with the grievance steps against Mondli. She was
also informed that she and Mondli
were expected to return to work on
13 August 2018.
[23]
On 13 August 2018, the Respondent submitted
a doctor’s note that booked her off work from 13 – 17
August 2018 on grounds
of extreme emotional distress.
[24]
On 17 August 2018, the Applicant received a
letter from the Respondent’s attorneys, to which the
Applicant’s attorneys
responded on 21 August 2018. In the
aforesaid letter it was recorded that the Respondent initiated a
formal grievance procedure
against Mondli, which she subsequently
withdrew, and she was offered another opportunity to institute a
formal grievance procedure
by 22 August 2018.
[25]
The Respondent personally responded to this
letter on 24 August 2018. The Respondent stated that her only wish
was for Mondli to
be removed from the premises and for her to
continue with her work, she did not want to lay formal charges and
did not want a drawn
out process. The Respondent stated that she was
of the view that the trust relationship between herself and the
Applicant had broken
down irretrievably and she tendered her
resignation with effect from 31 August 2018. The Respondent also
stated that she wanted
to proceed with a formal grievance against
Mondli, and for same to be chaired by an outside mediator.
[26]
On 28 August 2018, the Applicant responded
and accepted the Respondent’s resignation and agreed to pay her
salary for September
2018. The Applicant indicated that there would
be no purpose in proceeding with a formal grievance procedure as the
Respondent
will no longer be an employee due to her resignation. The
Applicant proposed that the Respondent provide it with all evidence
in
respect of the alleged sexual assault and that based on such
evidence, the Applicant would institute formal disciplinary
proceedings
against Mondli, if there was enough evidence to justify
it. If disciplinary proceedings were to be instituted, the Respondent
would
be required to give oral evidence, at a neutral venue and due
to the Respondent’s emotional state, the Applicant would
arrange
for her evidence to be given
in
camera.
[27]
Over the next month, there was an attempt
to reach a settlement agreement, but it ultimately failed.
[28]
The Applicant’s case was that the
Respondent’s resignation did not amount to a constructive
dismissal. She retracted
her formal grievance, she was offered an
opportunity to reinstate it in order to allow the Applicant to
institute formal steps
against Mondli and instead of doing so, she
resigned. The Applicant submitted that there was no prospect of
success
[29]
The attempts to settle the matter ended on
27 September 2018. It is undisputed that the Respondent was legally
represented prior
to her resignation and throughout the settlement
discussions.
[30]
The Applicant took issue with the fact that
there is no explanation tendered for the delay, as every period of
the delay has to
be explained. In her replying affidavit, the
Respondent explained that on 5 October 2018 she was informed that her
attorneys of
record were closing down and she could only consult with
her new attorneys in the middle of October 2018.
[31]
The Respondent was offered an alternative
position with Joe Public on 1 August 2018, which position she took up
with effect from
1 October 2018.
The test for the grant
of condonation
[32]
The relevant legal principles to be applied
in an application for condonation, are well established.
[33]
The
court or relevant tribunal has a discretion, which must be exercised
judicially on a consideration of the facts of each case
and in
essence it is a matter of fairness to both sides
[1]
.
[34]
Condonation for delays in all labour law
litigation is not simply there for the taking. The starting point is
that an applicant
in an application for condonation seeks an
indulgence and bears the onus to show good cause.
[35]
In
Melane
v Sanlam Insurance Co Ltd
[2]
it was held that:
’…
.
Among the facts usually relevant, are the degree of lateness, the
explanation therefore, the prospects of success and the importance
of
the case. Ordinarily these facts are interrelated, they are not
individually decisive, for that would be a piecemeal approach
incompatible with a true discretion, save of course that if there are
no prospects of success there will be no point in granting
condonation. What is needed is an objective conspectus of all the
facts.’
[36]
In this Court however, the principles have
long been qualified by the rule that where there is an inordinate
delay that is not satisfactorily
explained, the applicant’s
prospects of success are immaterial.
[37]
The
approach that in the absence of a satisfactory explanation for a
delay, the applicant’s prospects of success are ordinarily
irrelevant, has been conventionally applied
[3]
and was confirmed in
National
Education Health and Allied Workers Union on behalf of Mofokeng and
Others v Charlotte
Theron
Children’s Home
[4]
where the Labour Appeal Court (LAC) held that without a reasonable
and acceptable explanation for the delay, the prospects of success
are immaterial.
[38]
In
Collett
v Commission for Conciliation, Mediation and Arbitration
[5]
the
LAC held that without a reasonable and acceptable explanation for the
delay, the prospects of success are immaterial and without
good
prospects of success, no matter how good the explanation for the
delay, an application for condonation should be refused.
[39]
An applicant in an application for
condonation bears the onus to satisfy the court or tribunal that
condonation should be granted
and it is incumbent upon such applicant
to provide a full explanation for every period of the delay. The
explanation for the delay
must be both comprehensive and persuasive
and should cover every period of the delay.
[40]
In
IMATU
obo Zungu v SALGBC and Others
[6]
the principle was confirmed that it is not sufficient simply to list
significant events that occurred during the period in question
as
that does not assist the court properly to assess the reasonableness
of the explanation.
[41]
In summary: The Courts have endorsed the
principle that where there is a delay with no reasonable,
satisfactory and acceptable explanation
for such delay, condonation
may be refused without considering prospects of success and to grant
condonation where the delay is
not explained, may not serve the
interests of justice. The expeditious resolution of labour disputes
is another fundamental consideration.
[42]
It is within this context that an
application for condonation stands to be determined.
The condonation ruling
[43]
The issue to be decided by the arbitrator
was whether condonation should be granted for the late referral of
the Respondent’s
constructive dismissal dispute.
[44]
The arbitrator recorded the Applicant’s
and the Respondent’s submissions. In his analysis of the
submissions and the
factors to be considered in an application for
condonation, the arbitrator recorded that the referral was 32 days
late, which he
found not to be excessive, having considered the
reasons for the delay.
[45]
In respect of the explanation for the
delay, the arbitrator found that the reason for the delay was
reasonable and justifiable,
given the fact that the Respondent was
treated by a psychologist and psychiatrist during the days in
question.
[46]
On the prospects of success, the arbitrator
held that dismissal is in dispute and therefore the matter could be
dealt with properly
in a hearing where both parties can state their
respective cases.
The test on review
[47]
I
have to deal with the merits of the review application within the
context of the test that this Court must apply in deciding whether
the arbitrator's decision is reviewable. The test has been set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[7]
as whether
the
decision reached by the commissioner is one that a reasonable
decision maker could not reach.
The
Constitutional Court very clearly held that the arbitrator's
conclusion must fall within a range of decisions that a reasonable
decision maker could make.
[48]
The review test is a stringent and
conservative test of reasonableness.
The
Applicant has to show that the arbitrator arrived at an unreasonable
result.
[49]
In
Bestel
v Astral Operations Ltd and Others
[8]
the LAC considered the limited scope possessed by this Court to
review an arbitration award and accepted that an arbitrator’s
finding will be unreasonable if the finding is unsupported by any
evidence, if it is based on speculation by the arbitrator, if
it is
disconnected from the evidence, if it is supported by evidence that
is insufficiently reasonable to justify the decision
or if it was
made in ignorance of evidence that was not contradicted.
[50]
The
LAC in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[9]
affirmed the test to be applied in review proceedings and held that:
‘
In
short: A reviewing court must ascertain whether the
arbitrator considered the principal issue before him/her;
evaluated
the facts presented at the hearing and came to a conclusion
that is reasonable.’
[51]
The review court must consider the totality
of the evidence and then decide whether the decision made by the
arbitrator is one that
a reasonable decision maker could make based
on the facts placed before him / her.
[52]
In
Parliament
of the Republic of South Africa v CCMA and Others
[10]
it
was held that:
‘
This
Court accepts that when considering applications for condonation,
Commissioners enjoy a wide discretion and the Courts should
be
cautious when interfering with decision arrived at by Commissioners
in the light of that wide discretion
.
The
applicable test before the Court can interfere with a Commissioner’s
discretionary decision is whether or not it can be
said that the
discretion was exercised “capriciously, or upon a wrong
principle, or in a biased manner, or for insubstantial
reasons. Thus,
the test is whether the Commissioner committed a misdirection, an
irregularity, or failed to exercise his or her
discretion, or
exercised it improperly or unfairly.’
[53]
In
Cowley
v Anglo Platinum and Others
[11]
,
it was held that;
‘
When
a
Commissioner
is endowed with a discretion this court will be very slow to
interfere with the exercise of that discretion. The commissioner’s
exercise of discretion would be upset on the review if the applicant
shows,
inter alia
,
that the Commissioner committed a misdirection or irregularity, or
that he or she acted capriciously, or on the wrong principle
or in
bad faith or unfairly or that the exercise seeing the discretion the
Commissioner reached a decision that a reasonable decision-maker
could not reach. If it is clear that the commissioner exercised such
discretion judiciously and fairly after taking into consideration
all
the relevant facts, this court will not interfere with the exercise
of such discretion.’
[54]
The ultimate question is whether
holistically viewed, the decision taken by the arbitrator was
reasonable based on the evidence
placed before him. I have to
consider this question taking into account the evidence contained in
the condonation application and
opposition thereto that was placed
before the arbitrator, the ruling he had issued and the grounds for
review raised by the Applicant.
[55]
It is within this context that the
application for review is to be considered.
Grounds for review and
analysis
[56]
It is evident from his ruling that the
arbitrator was well aware of the fact that the Respondent had to show
good cause and that
he was to be guided by Rule 9(3) of the CCMA
Rules, which sets out the factors to be addressed in an application
for condonation.
The arbitrator recorded that the factors were
interrelated and that the Respondent bore the onus to show that
condonation should
be granted.
[57]
In my view, the arbitrator was aware of the
factors to be considered as per Rule 9(3) namely the degree of
lateness, the reasons
for the lateness, prospects of succeeding with
the referral and obtaining the relief sought and prejudice.
[58]
In considering whether or not to grant
condonation, the arbitrator had to consider the aforesaid factors,
thus the legal requirements
or the law, the facts placed before him
and exercise his discretion on an objective conspectus of the law,
applied to the facts.
[59]
The essence of the Applicant’s
grounds for review is that the arbitrator committed material errors
of fact and of law and
this resulted in an egregious exercise of the
discretion to condone the late referral of the Respondent’s
dispute, which
rendered the ruling unreasonable.
[60]
The Applicant took issue with two
particular findings of the arbitrator, which were material to his
decision to grant condonation.
[61]
Firstly, the Applicant took issue with the
arbitrator’s finding that the delay is not excessive,
considering the reasons for
the delay, which the arbitrator found to
be justifiable and reasonable. The Applicant’s case is that the
arbitrator’s
finding was not factually correct and that
condonation should not have been granted as there was no explanation
for the delay.
The arbitrator failed to apply his mind to the facts
placed before him.
[62]
In my view there is merit in this ground
for review.
[63]
The period of delay is the period after the
expiry of the 30 days within which an unfair dismissal dispute has to
be referred and
the date it was actually referred.
In
casu,
the Respondent resigned on 24
August 2018. In her condonation application, she stated that she had
to refer her dispute by 25 September
2018. The dispute was referred
on 25 October 2018.
[64]
The relevant period for which the
Respondent had to tender an explanation is thus 25 September until 25
October 2018. In her founding
affidavit, the Applicant stated that
from 24 August to 21 September 2018 she was emotionally unstable and
was advised by her psychologist
and psychiatrist not to take on any
additional stress and to distance herself from the incident. This
explanation is irrelevant
as it covers the period prior to the actual
period of delay that had to be explained.
[65]
The Respondent further explained that there
were attempts to settle the matter. It is undisputed that attempts to
settle came to
an end on 27 September 2018. Thus, by 27 September
2018 the Respondent should have been aware that the possibility of
settlement
was no longer on the table.
[66]
The Respondent explained that on 5 October
2018 she decided to take the matter further and she sought legal
advice. Only in her
replying affidavit did she explain that her
attorney closed his practice and she sought advice from new attorneys
by mid-October
2018.
[67]
The arbitrator found the delay reasonable
and justifiable because the Respondent attached letters from her
psychologist and psychiatrist,
confirming that she was treated by
them during the days in question.
[68]
It is evident that the arbitrator’s
finding, based on letters from the Respondent’s psychologist
and psychiatrist is
factually incorrect. There is no letter to
confirm that the Respondent was treated or booked off by them during
the period 25 September
to 25 October 2018. The letters cover the
periods 13 – 18 August 2018 and 20 – 24 August 2018. The
letter from the
psychiatrist dated 2 September 2018, indicated that
the Respondent is to stay on sick leave until her mood stabilised and
that
it would not be in her best interest to return to work until the
issue had been resolved.
[69]
The Respondent resigned on 24 August 2018.
There is nothing in the letters which the arbitrator accepted as
reasonable explanation
to support her explanation for the delay.
There is no evidence that the Respondent was still under treatment by
her psychologist
or psychiatrist between 25 September and 25 October
2018.
[70]
The Respondent had to provide an
explanation for every period of the delay to enable the arbitrator to
assess the reasonableness
of the delay and the explanation for it. It
is evident that the explanation tendered for the period of delay is
bereft of any detail
and lacks particularity. Material periods of the
delay remained completely unexplained and the Respondent has tendered
no version
as to what happened during those periods.
[71]
The arbitrator accepted the explanation
tendered to be reasonable and justifiable without a proper
consideration of the facts placed
before him. The arbitrator further
ignored the fact that the Respondent took up employment with another
entity on 1 October 2018.
[72]
T
he question that
this Court must ask on review is whether the explanation for the
delay
was material to the determination of
the question whether condonation should be granted and whether the
arbitrator’s failure
to consider the facts, distorted his
ultimate decision.
[73]
In
Head
of the Department of Education v Mofokeng
[12]
the
LAC provided the following exposition of the review test:
‘
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.’ (My
emphasis)
[74]
In my view, the explanation was material to
the issue to be decided. The arbitrator’s failure to apply his
mind to material
facts, alternatively making a finding that is
factually incorrect, indeed had a distorting effect upon his
conception of the enquiry,
the issues to be determined, the ultimate
outcome
and it distorted the arbitrator’s
ultimate decision. The arbitrator could not have granted condonation
on the basis of the
letters of the psychologist and psychiatrist.
[75]
Secondly, the Applicant took issue with the
arbitrator’s assessment of the prospects of success.
[76]
The arbitrator, in considering the issue of
prospects of success, found that dismissal is in dispute and
therefore the matter could
be dealt with properly in a hearing where
both parties can state their respective cases.
[77]
In my view, there is merit in this ground
for review.
[78]
The arbitrator, in considering the
prospects of success, had to consider the Respondent’s
prospects of succeeding with a constructive
dismissal dispute.
[79]
Where an employee claims constructive
dismissal, the onus is on the employee to prove that the resignation
was not voluntary and
it was not the employee’s intention to
terminate the employment relationship. Once the employee discharges
the onus, the
conduct of the employer must be assessed and the
question is whether the employee could reasonably have been expected
to put up
with the conduct of the employer.
[80]
In opposing the condonation application,
the Applicant has put up a case to show that there was no prospect of
succeeding with a
constructive dismissal case,
inter
alia,
because the Respondent opted to
resign instead of affording the Applicant an opportunity to deal with
the issue, as it clearly conveyed
its intention to do. This called
for an assessment of the factors relevant in a constructive dismissal
case, as well as the facts
placed before him.
[81]
The arbitrator dismally failed to consider
or assess the issue of prospects of success, based on the facts
placed before him. This
was a factor he had to consider in an
application for condonation.
[82]
The arbitrator’s referral to the fact
that dismissal is in dispute, with reference to prospects of success
is bizarre as it
has no bearing on the question of prospects of
success and it is not a factor to be considered or applied in
determining the question
of prospects of success.
[83]
In summary: the condonation ruling issued
and the findings made therein, do not pass muster considering the
test that this Court
has to apply on review. The arbitrator’s
findings are unreasonable and cannot survive being challenged on
review.
Relief
[84]
This leaves the issue of relief.
[85]
The Applicant seeks for the condonation
ruling to be reviewed and set aside and to be substituted with a
ruling that the Respondent’s
condonation application is
dismissed.
[86]
In the event that the ruling is set aside
on review, this Court has a discretion whether or not to finally
determine the matter.
The matter could be finally determined where
there is a full record of the proceedings before Court and where it
would be in the
interest of justice to do so.
[87]
The
principles had been set out by the LAC in
Palluci
Home Depot (Pty) Ltd v Herskowitz
[13]
as
follows:
‘
Where
all the facts required to make a determination on the disputed issues
are before a reviewing court in an unfair dismissal
or unfair labour
practice dispute such that the court is “in as good a position”
as the administrative tribunal to
make the determination, I see no
reason why a reviewing court should not decide the matter itself.
Such an approach is consistent
with the powers of the Labour Court
under s 158 of the LRA, which are primarily directed at remedying a
wrong, and providing the
effective and speedy resolution of disputes.
The need for bringing a speedy finality to a labour dispute is thus
an important consideration
in the determination by a court of review
of whether to remit the matter to the CCMA for reconsideration, or
substitute its own
decision for that of the commissioner’.
[88]
In casu,
the
Court has the entire record before it and is well-placed to make a
decision on the merits and to decide and finally determine
the matter
on the record as it is before me and
where
the parties’ cases were fully ventilated.
[89]
On
a consideration of all the facts before the arbitrator at the time,
it is evident that the most reasonable outcome upon a consideration
of the overall interests of justice would have been to refuse the
granting of condonation. In exercising his discretion to grant
condonation, the arbitrator committed a misdirection of such a nature
that his discretion was exercised not only improperly, unfairly
and
unreasonably, but also upon wrong principles and for insubstantial
reasons.
[90]
In
the circumstances, it follows that the condonation ruling ought to be
set aside, and I am satisfied that upon the material that
was placed
before the arbitrator, this Court is in a position to substitute that
ruling. No purpose would be served by remitting
the matter back to
the CCMA for reconsideration.
It
is also in the interest of justice to determine the matter finally
and not to order a re-hearing of the matter as any further
delay in
this matter would undermine one of the key objects of the LRA namely
expeditious dispute resolution.
Costs
[91]
This Court has a wide discretion in respect
of costs.
[92]
This is a matter where ultimately the
arbitrator got it wrong and the Respondent was entitled to defend a
ruling issued in her favour
by opposing the application. In my view,
considering the facts placed before me, the interest of justice will
be best served by
making no order as to cost.
[93]
In the premises I make the following order:
Order
1.
The
condonation
ruling dated 6 December 2018 and issued under case number GAJB
24157-18
is reviewed and set aside;
2.
The condonation ruling is substituted with
the following:
‘
The
Applicant’s (First Respondent) application for condonation is
dismissed.’
3.
There is no order as to costs.
______________
Connie Prinsloo
Judge of the Labour Court
of South Africa
Representatives:
For the
Applicant:
Marais Attorneys
For
the First Respondent: Mervyn Taback Inc Attorneys
[1]
‘
Civil
Procedure in the Superior Court, Harms at B27.6.
[2]
1962
(4) SA 531
(A) at 532 C - F.
[3]
See
NUM
v Council for Mineral Technology
[1999]
3 BLLR 209
(LAC).
[4]
(2004)
25
ILJ
2195 (LAC)
at
para
23
.
[5]
(2014)
6 BLLR 523 (LAC).
[6]
(2010)
31 ILJ 1413 (LC).
[7]
2007
28 ILJ 2405 (CC) at para 110.
[8]
[2011]
2 BLLR 129
(LAC) at par 18.
[9]
(2014)
35 ILJ 943 (LAC).
[10]
Unreported
judgment
(C646/16)
[2018] ZALCCT 12 (24 April 2018)
[11]
JR 2219/2007;
[2016]
JOL 35884
(LC)
at para 21.
[12]
[2015]
1 BLLR 50
(LAC) at para 33.
[13]
(2015)
36 ILJ 1511 (LAC) at para 58.