Sneller Verbatim/HDJ
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J1301/98
Date of Judgment: 2000-06-23
In the matter between
RUFUS MOKGOTHU Applicant
and
1st Respondent
2nd Respondent
COMMISSION FOR CONCILIATION
3rd Respondent
________________________________________________________________
J U D G M E N T
Delivered on 23 June 2000
________________________________________________________________
REVELAS J:
1.Rufus Mokgothu, the applicant, had been in the employ of the first
respondent since 1982 when the latter terminated his services on 29 June
1996 for his participation in an illegal strike. Approximately 28 000
employees were dismissed.
Following the intervention of the then Minister of Labour,
Mr Tito Mboweni, an agreement was brokered between the various parties
and concluded on 3 August 1996.
3.The applicant lists the salient points of the agreement as follows in
paragraph 4 of his founding affidavit:
"All ex-strikers who have not yet applied for employment may do so by Friday 16 August
1996 at the Recruitment Offices of their choice, and will be offered employment.
4.2 Applicants will be offered employment as the following time-table:
The first third of the unemployment ex-strikers will be offered employment by the
end of September 1996;
the second third by the end of November 1996; and
the final third by the end of February 1997."
4. The applicant duly applied for the position before the specified time, namely
16 August 1996, but was not offered re-employment in terms of to the
predetermined table set out in the agreement, at any stage before 28 February
1997, which was the last of the predetermined dates in the agreement.
5. The applicant, prior to the agreement being reached, intended to challenge
his dismissal in terms of the provisions of the former Labour Relations Act, 28 of
1956 (the former Act), as it was the applicable legislation at the time of his
dismissal.
6. Subsequent to the conclusion of the agreement, on 6 November 1996, the
applicant applied for the establishment of a conciliation board which was
established on 19 November 1996. These were remedies under the former Act.
7.In terms of the agreement the applicant had to apply for a
position before 16 August 1996. In the first respondent's founding
affidavit there is a rather faint suggestion that the applicant had not
applied for a position before 16 August 1996. However, it is not
categorically disputed by the first respondent that the applicant had
done so as set out in his founding affidavit.
8.Once the application had been made, employees,(including the applicant),
would have been offered reemployment. According to the first
respondent, the applicant was not offered reemployment because he had
challenged his dismissal by applying for the establishment of a
conciliation board before he could be offered employment in terms of the
agreement.
The first respondent submitted that the challenging of the
dismissal was contrary to the agreement concluded and the fundamental
principles of the agreement was that exemployees would be reemployed.
This agreement, argued the first respondent, was in lieu of the
individual employees challenging their dismissal. The first respondent
further submitted that by applying for the establishment of a
conciliation board, the applicant indicated his clear intention to
challenge his dismissal as at 29 June 1996 and he therefore fell outside
of the provisions of the agreement reached.
10. The respondent argued that the date on which the dispute arose is
29 June 1996 and well in advance of the implementation of (“the current
Labour Relations Act, 66 of 1995,LRA”), namely 11 November 1996 and the
dispute is therefore required to be processed in accordance with the
transitional provisions contained in the LRA. The applicant argues that
the dispute arose on 28 February 1997, the last date on which he could
be reemployed.
11. The first respondent's stance was that because the applicant chose
to challenge his dismissal even after conclusion of the agreement
the applicant was precluded from any benefits in terms of the agreement
and it was not applicable to him, despite him having applied for
employment before 16 August 1996 as was required by the agreement.
12. On 19 August 1997, (almost seven months after the date on which the
applicant argues the dispute arose), he referred the dispute to the CCMA
which he described in the relevant referral form as a refusal to "comply
with the agreement signed on 3 August 1996" .
13.On 12 September 1997 the matter came before the second respondent who
issued a certificate to the effect that the dispute was "resolved" on
issued a certificate to the effect that the dispute was "resolved" on
the basis that the CCMA had no jurisdiction to hear the matter. The
second respondent provided no written reasons for his ruling. It
appears that he held the view that the dispute arose prior to 11
November 1996, there before the current LRA become operative.
14.The applicant now seeks to set aside the certificate and ruling issued by
the second respondent in terms of section 158(1)(g) of the LRA.
15.On the affidavits presented by both parties in this application, the
second respondent based his ruling on the same facts and arguments
presented to him by the parties which are now argued before me.
16.In my view, the second respondent came to his conclusion because he
accepted that the dispute arose on 29 June 1996 and regarded that as the
date on which the dispute arose, since that was the date of the
dismissal of the applicant.
17.The applicant, instead of applying to the Labour Court to review the
ruling in question having been dissatisfied therewith elected to
refer the same dispute to the CCMA for a second time.
18.On the second occasion the characterisation of the dispute is set out with
more detail in the relevant referral form and reads as follows:
"1. Refusal to comply with the agreement signed on 2/8/96, which I complied with;
2. unilateral changes determined with conditions of employment;
3. unfair labour practice;
4. a failure of employer to re-employ a former employee in terms of the agreement."
19.The dispute referred to the CCMA for the second time by the applicant,
remained the same dispute, irrespective of its somewhat new wording.
The dispute is essentially about the failure to comply with the
agreement concluded on 3 August 1996 between the relevant parties.
20. A conciliation meeting was set down for 6 November 1997 and a
20. A conciliation meeting was set down for 6 November 1997 and a
different commissioner heard the matter under the auspices of the CCMA.
This commissioner also came to the conclusion in his advisory award that
the dispute remained the same between the parties.
21. In his advisory award, the commissioner questioned the basis on which
the second respondent arrived at his conclusion that the CCMA lacked
jurisdiction. By implication he expressed a different view regarding the
date on which the dispute arose, but advised the applicant to request
reasons from the second respondent for his ruling.
22. The applicant then entered into correspondence with the CCMA in an
endeavour to seek clarity on what he terms "the somewhat confusing and
conflicting position adopted by the CCMA".
23. Several letters were written by the applicant to the CCMA over a protracted
period. None were answered.
24.The applicant had also changed his address in the interim, which could
possibly explain the CCMA's omission to deal with the applicant's
enquiries.
25.The applicant's last letter to the CCMA was written on 18 March 1998.
26.On 20 August 1998, almost nine months after receipt of the advisory award,
and almost five months after his last letter to the CCMA, the applicant
wrote to the registrar of the CCMA.
27.The registrar, on 1 September 1998, advised the applicant that the second
respondent's ruling was final and confirmed that the CCMA does not have
the necessary jurisdiction to hear the matter.
28.The applicant was also advised that his remedy was to either refer the
dispute to the Industrial Court or to apply for a rescission of the
ruling. A third choice offered by way of poor advice, was that he could
apply to the Labour Court to have the review set aside in terms of
section 145 of the LRA.
29.The applicant wrongly elected to apply for a rescission of the second
respondent's ruling. He has up to date received no reply.
30.The delay:
The second respondent made his ruling to the effect that he had no
jurisdiction to hear the matter on 12 September 1997. At that stage the
dispute was, on the applicant's case at least, almost seven months old.
31.The applicant served this application for the review of the ruling only in
March 1999, almost eighteen months later.
32.There is no proper condonation application before me. I permitted the
applicant's legal representative to make such an application from the
Bar and decided the matter on the facts that could be gleaned from the
affidavits of the parties.
33.In Ruijgrok v Foschini (Pty) Ltd and Another 1999 (20 ILJ) 1284 Labour
Court, Basson J was of the view that the Labour Court
"...may legitimately take notice of the fact that a review application of an arbitration
award must be brought within a mere six weeks after such award was served.
Further, it is important to take notice of the fact that the principle that the CCMA is obliged
to decide unfair dismissal disputes expeditiously is borne out by the provisions of the Act
relating specifically to time periods in the case of conciliation proceedings..."
34.Basson J also found (in the same judgment) that a delay of six months in
bringing an application to review conciliation proceedings of the CCMA
is "unreasonable" (at 1287I1288B).
35.There has been an inordinate delay in bringing this review application.
Even though I am of the opinion that much of the delay was caused to
some extent by the manner in which the CCMA officials dealt the matter,
the applicant is nevertheless also to be blamed for the delay.
36.There is no proper explanation proffered by the applicant as to why he
waited seven months to refer the dispute to the CCMA in the first place.
The fact that he, during this period, made several enquiries from the
first respondent as to why he was not reemployed, does not constitute
an explanation in itself. If the applicant was not satisfied with his
an explanation in itself. If the applicant was not satisfied with his
employer's attitude, he could none the less have pursued his remedies in
terms of the LRA.
37.On the probabilities, the applicant was clearly aware of his rights in
terms of the LRA, because he abandoned the route he pursued under the
former Act. On his own explanation this was because he realised the
dispute between the parties arose at a date which occurred after the
implementation of the current Act, which was 27 February 1997. Why he
should have waited eighteen months to bring the review application, is
difficult to understand.
38.If the applicant was not satisfied with the ruling of the commissioner he
should have brought the review application much sooner. Instead, he
referred the same dispute for a second time to the CCMA, which he was
clearly not entitled in law to do. The CCMA could to some extent be
blamed for misguiding the applicant by entertaining this issue. I also
accept that the advisory award was of little assistance to the
applicant, but the applicant had a duty to seek proper advice.
39.He had worked in an industry where several unions represented employees.
He could have asked any of these unions for assistance. Alternatively,
he could have made personal visits to the CCMA and obtained clarity
instead of entering into correspondence with them, inter spersed by long
intervals between letters. Particularly in view of the fact that he had
changed his address, he was obliged to do so. Months and eventually
more than a year had passed by. Time was passing by and the applicant
should have realised that he could not pursue a matter against his
erstwhile employer at such a protracted pace.
40.In my view, it would be extremely prejudicial to an employer if its
employees were entitled to bring review applications of CCMA rulings
eighteen months after the event. The reasons therefore are obvious.
Litigants in labour matters are entitled to expect an end to a
Litigants in labour matters are entitled to expect an end to a
litigation, or that their disputes are resolved at some point. The Act
also requires disputes to be resolved expeditiously.
41. In so far as the merits of this matter are concerned and thus the
prospects of success, the following is significant..
41.There are instances where, when a commissioner of the CCMA makes a ruling
as to whether he/she has jurisdiction to conciliate and/or arbitrate a
dispute, the merits of the matter has to be entered into. Evidence has
to be considered and arguments have to be considered. In this
particular matter where the date of dismissal or the date on which the
dispute arose was not common cause, it is rather unfortunate that the
second respondent did not give reasons for his ruling.
42.It may or may not be that the second respondent erred in law in coming to
the conclusion that he did. That is also not per se a ground for
review. Then there is also the possibility that the applicant elected
not to be reemployed by referring a dispute prematurely. But, even if
the applicant has a prospect of success in this regard, these prospects
are outweighed by the degree of lateness in bringing the review
application.
43.In the circumstances the application should fail.
44.Insofar as the question of costs is concerned I have to take into account,
that the applicant, in order to pursue his matter, was misguided by the
CCMA to some extent. I agree with the applicant that the CCMA, at times
at least, adopted a confusing approach to the matter. The applicant
should have been advised by the CCMA at the onset of the matter that its
rulings were binding and that he should apply to have the matter
reviewed. Clearly, to have advised the applicant that he should apply
for rescission, was the wrong advice. This is a consideration when
taking into account the factors in determing a costs order.
45.In the circumstances, I do not make any costs order against the
applicant.
46.I make the following order:
The application is dismissed and there is no order as to costs.
_________________
E. Revelas
On behalf of Applicant: Mr Segoale of Segoale Att.
On behalf of Respondent: Adv. Ross Hulton, instructed by
Leppan Beach Att.