IN THE LABOUR COURT OF SOUTH AFRICA
23 September 1999
Case No. J4/99
In the matter between:
DAWOOD GOOLAM HOOSEN MANSOOR Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
MBILENI, CS N.O (cited in his capacity as
Commissioner for the Commission for Conciliation,
Mediation and Arbitration Second Respondent
GALLO (AFRICA) LIMITED Third Respondent
JUDGMENT
REVELAS, J:
[1] The applicant, a former employee of the third
respondent, was dismissed on 30 July 1998. The
applicant decided to challenge the fairness of his
dismissal and he referred his dispute to the Commission
for Conciliation, Mediation and Arbitration
("the CCMA") 78 days after his dismissal.
[2] The respondent raised an objection to the lateness
of the referral of the dispute and the second
respondent, a Commissioner appointed by the CCMA, heard
the matter and refused to grant condonation for the
latereferral of the applicant's dispute to the CCMA on
3 December 1998. The applicant seeks to set aside the
commissioner’s ruling. The application is brought
under section 158(1)(g) of the Labour Relations Act, 66
of 1995 ("the Act").
[3] The hearing of the application for condonation
took place under the auspices of the Commission for
Conciliation, Mediation and Arbitration. The applicant
was represented by an official of the South African
Commercial Catering and Allied Workers Union and the
third respondent by one of its employees.
[4] The applicant was a director of the third
respondent at one of its distribution centres.
[5] When the applicant referred his dispute to the
CCMA he simultaneously filed an affidavit in support of
an application for condonation of the late referral of
his dispute to the CCMA. The main reason for the
delay according to the applicant, was that his Union
official, Mr F.D. Matshaba of SACCAWU, did not receive
any communication or correspondence from the third
respondent from the 30th of July 1998. That was the
day on which his appeal form was submitted in respect
of the arbitration hearing agreed to in the appeal
form.
[6] It is common cause that according to the third
respondent’s disciplinary procedures when an appeal
from is completed by implication the parties went to
arbitration.
[7] The third respondent disputed that there was no
communication or correspondence from them to SACCAWU.
In fact, the third respondent referred to four letters
wherein it attempted to finalize matters with regards
to the arbitration at the Independent Mediation
Services of South Africa (IMSSA).
[8] The third respondent also disputes that telephonic
conversations took place between itself and the Union
official regarding the identity of the arbitrator who
would have presided over the arbitration.
[9] On the 27th of October 1998 Mr Matshaba, on behalf
of SACCAWU, wrote to Mr Jeff Bolton of the third
respondent:
In his letter he states as follows:
"I am, nor does thee our (sic) office aware that there is any agreement that this
matter should be referred to IMSSA or to any independent arbitration outside the
CCMA's scope of operation and thus we cannot be held responsible for any delay
whatsoever.
This is not the first case which have been dealt with by both parties and the
procedure followed was never that the agreement be made with a shop stuart/s.
The matter have been (sic) already referred to CCMA and the date for conciliation
has been issued as can be seen on the letter attached hereto. Thus any other issue
which need to be discussed will be discussed at the conciliation meeting
scheduled by CCMA."
This letter is directly in conflict with the following paragraphs in the
applicant's affidavit in support of his application for condonation to
the CCMA:
"14. Mr Matshaba thereafter contacted IMSSA and obtained four names of
independent arbitrators to choose from to conduct the arbitration process. The
names that he obtained were that of Messrs Khalick, Mayet, Vally, Van Reed (sic)
and Carol Keith.
15. Towards the third week of September 1998 I was contacted by Mr Matshaba
to meet him at his offices because he wanted to discuss the names of the
arbitrators with me. I went to meet him and we discussed the same.
16. After our discussion Mr Matshaba telephoned Michael Wright in my
presence and suggested to him the names of the arbitrators referred to in
paragraph 14 above. Mr Wright indicated to Mr Matshaba that he will have to
consult with the employer and come back to Mr Matshaba regarding the choice of
the arbitrator."
[10] The aforesaid was denied on affidavit by the third
respondent. It is also directly in conflict with Mr
Matshaba's letter to the third respondent dated 27
October 1998. Both these documents (the affidavit and
the letter) was before the second respondent when
deciding the issue of condonation.
[11] When the second respondent considered the question
of condonation, only the applicant's affidavit was
before him. Insofar as the complaint is raised by the
applicant in that regard, such a complaint is
unfounded. The applicant had an onus to discharge.
He had to convince the Commissioner why a late referral
should be condoned. This question was decided on the
applicant's own version. He is therefore not
prejudiced.
[12] The second respondent gave rather short reasons
for his ruling. The submissions advanced on behalf of
the applicant which the second respondent took into
account were the following:
"1.1 On the 30th of July 1998 the applicant was dismissed and immediately
lodged an appeal via the senior shop stuart, Mr Hamfi Malou. The completed
appeal form implied a tacit agreement to have the dispute arbitrated by a third
party, IMSSA from past practise;
1.2 The applicant, through Mr Freddie Matshaba, made a few telephone
contacts with both Mr Ian Franzini and Mr Michael Wright between August and
September 1998. The discussion centred around a selection of able IMSSA
arbitrators;
1.3 In September 1998 four names were put forward for selection but the
parties failed to agree on a choice of the arbitrator;
1.4 The applicant denied that Mr Malou ever received the four letters the
respondent alleged to have written to him in regard to dates for arbitration;
1.5 The referral was sent to the CCMA and the company on 16 October 1998.
There was a cover letter to the respondent stating an ultimatum as the 19th of
October 1998;
1.6 The Union argued that as a result of the parties failing to agree on the
choice of the IMSSA arbitrator undue delay was caused and not on the applicant's
making .... (sic).
The applicant appeals to the commissioner to rule in his favour and granting
condonation."
[13] The second respondent took the following
submissions and arguments presented on behalf of the
third respondent into account:
"2.1 The respondent wrote four letters requesting Mr Malou, who represented
the applicant at the disciplinary hearing, to provide dates for the arbitration by
IMSSA. None of those letters were responded to.
2.2 The Union did not refer the dispute to the CCMA within the 30 day period as
provided for by section 191(1)(B). The Union referred the dispute to the CCMA on
the 16th of October 1998, that is 48 days late, without submitting a request for
condonation at the same time.
2.3 The applicant was a director of Gallo Distribution Centre. He was familiar
with labour relations practises which was the requirement of his job.
2.4 The applicant was fully aware of the procedures and practises of the
company and how labour issues were handled in the past.
2.5 The respondent argued that the applicant had professional advise from the
Union who do know (sic) what the current procedures are in terms of the
company's disciplinary procedures as well as the provisions of the Labour
Relations Act.
The respondent requested the Commissioner not to grant condonation as no good
cause were shown for the lateness of the referral as well as the prejudice they will
suffer as a result."
[14] Firstly, the second respondent found that the
referral date, as being the date when the dispute arose
as 31 August 1998, was incorrect since the applicant
was dismissed on 30 July 1998. The second respondent
found that this date was given to create the impression
that the lateness to refer the dispute to the CCMA was
not substantial.
[15] He further found that, because the applicant was a
director at the third respondent's distribution centre,
he was familiar with and fully aware of the
requirements of the Act regarding referrals and dispute
settlements through conciliation processes. The second
respondent, in addition, emphasized the provisions of
section 191(2) of the Act which provides that, if an
employee shows good cause at any time, the commission
may permit the employee to refer the dispute after the
30 day time limit has expired. The second respondent
found that there was no indication on the applicant's
version, that there were circumstances which prevented
him from referring his dispute to the CCMA within the
time limit provided for in section 191(1)(b) of the
Act. He consequently refused to grant the condonation.
[16] Section 138(7)(a) of the Act enjoins a
Commissioner to give "brief reasons" . In this
particular matter the second respondent's reasons for
his ruling are rather brief. However, in my view,
brief reasons or reasons that do not deal with each and
every aspect of the case which was presented before the
commissioner does not waive interference per say. This
view was also held by De Villiers, AJ in the matter of
Kolvenco (Pty) Ltd v Raffee & Others , J772/97, dated 23
July 1999. In paragraph 17 of that judgment De
Villiers, AJ stated the following:
"In terms of section 138(7)(a) the Commissioner is by law required to give brief
reasons. This he has done in the award and therefore he is not required to do
anything further. There are no facts in the affidavit that the Commissioner
committed a grouse irregularity in dealing with the evidence before him and
therefore the applicants have not made out a case for the Commissioner to meet.
Irregularities contained of in the absence of an averment that these were the facts
before the Commissioner are made 'in the air' and do not call for a response from
the Commissioner."
[17] On the evidence that was available to the second
respondent it was possible for the second respondent,
to come to his conclusion, which is supported by those
facts.
[18] In the wellknown judgment of Melane v Santam
Insurance Company Ltd , 1962 (4) SA 531(AD) at 532CF,
the following was said about the principles applicable
to condonation:
"In deciding whether sufficient cause has been shown the basic principle 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 prospect
of success and the importance of the case. Ordinarily these facts are interrelated;
They are not individually decisive for that would be a peacemeal approach
incompatible with the true discretion fade of course, that if there are no prospect of
success, there would be no point in granting condonation. Any attempt to
formulate a rule of thumb would only serve to harden the arteries of what should be
a flexible discretion. What is needed is an objective conspectus of all the facts,
thus slight delay and a good explanation may help to compensate the prospect of
success which are not strong or the importance of the issue and strong prospects
of success may tend to compensate for a long delay and the respondent's interest
in finality should not be overlooked. I would add that discursiveness should be
discouraged in canvassing the prospects of success in the affidavits. I think that
all the aforegoing clearly emerge from decisions of this court and therefore I need
not add to the overgrowing burden of annotation by sighting these cases."
[19] On his own papers, the applicant does not make out
a case in so far as the reasons for the delay is
concerned. There simply is no proper explanation for
the delay.
[20] Apart from the creditability finding made against
the applicant, (regarding to the four letters which he
denies receipt of), the fact that the third respondent
and the applicant took some time to decide on the
arbitration proceedings, was not an excuse for him to
delay referring the matter to the CCMA, as he said.
[21] In addition, the delay is in the circumstances,
excessive. The applicant is not an illiterate person.
There was evidence before the second respondent, which
he took into account, that the applicant had experience
of dealing with these type of matters and knew that a
dispute of this nature had to be referred to the CCMA
within 30 days as provided for by section 191(1)(b) of
the Act.
[22] In so far as the importance of the case is
concerned I agree with the submissions, advanced on
behalf of the third respondent by his representative,
that, if the case was considered to be of great
importance, the applicant would not have been as
dilatory as was.
[23] Quite clearly, there is no reference by the second
respondent to the prospects of success. The Labour
Appeal Court has held on numerous occasions that, where
an adjudicator finds that explanation tendered for a
delay is unacceptable, this by itself would justify the
refusal to grant condonation. In the matter of
National Union of Mine Workers v Western Holdings Gold
Mining, 1994 (15) ILJ 610(LAC) at 613BE Myburgh, J
held as follows:
"The approach to be adopted in considering the application is wellestablished.
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 tempt to compensate for a long delay .... an
unsatisfactory and unacceptable explanation for the delay remain so, whatever the
prospects of success on the merits."
[24] In so far as the merits are concerned, it was
pointed out that the applicant did not participate in
his disciplinary enquiry which he regarded as a
frivolous and vexatious persecution of himself. He
asked the chairman to recuse himself and when the
latter failed to do so, after advancing a proper
explanation in my view, the applicant and his Union
official left the proceedings. The applicant was
dismissed for poor performance.
[25] I do not believe it is necessary to decide the
question of the prospects of success since I am only
required to find whether the second respondent, on the
evidence available to him, came to a justifiable
conclusion. I have already referred to the evidence
which was available to the second respondent and in my
view, he came to a reasonable and justifiable decision
in that regard.
[26] Consequently the application should not succeed
and is dismissed. There is no reason why costs should
not follow the result.
[27] The application is dismissed with costs.
__________________
E. REVELAS
For the Applicant: Mr Erasmus of Erasmus Attorneys
For the Respondent:Mr Todd of Bowman Gilfillan Inc