IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NO: C589/99
DATE: 782000
In the matter between:
CLARENCE PHILANDER Applicant
and
COMMISSION FOR CONCILIATION, First and Second
MEDIATION AND ARBITRATION & Respondents
OTHER
VAL U FLAVOURS Third Respondent
J U D G M E N T
WAGLAY, J:
1. The applicant in this matter seeks an order in terms of section 158(1)
(g) to review and set aside the determination on applicant's application
for condonation to the first respondent made by the second respondent on
1 October 1999, and also that this Court exercise its power to grant
condonation to the applicant for the late referral of his dispute to the
first respondent.
2. As background, the applicant was summarily dismissed by his employer
(third respondent) on or about 12 May 1999 after being accused of
selling company stock without his employer's consent or knowledge. The
applicant sought legal assistance from a firm of attorneys and the
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required 7.11 form of the first respondent (CCMA) was completed to refer
the dispute about his alleged unfair dismissal to first respondent.
The completed form was forwarded by the applicant's erstwhile attorneys
to the third respondent on 1 June 1999. On 15 July 1999 the applicant
approached his erstwhile attorneys to enquire about the progress in the
matter and the said attorneys immediately despatched a letter to the
first respondent enquiring as to why it did not receive any response
from first respondent.
3. On 21 July 1999, applicant himself attended the offices of first
respondent to enquire about the status of his matter and was informed
that first respondent had not received any referral of his dispute.
First respondent also told the applicant that since the 30 day period
within which a dismissal dispute is required to be referred to the first
respondent had expired, he would have to apply for condonation for the
late referral. On 22 July, applicant's attorney duly completed the
condonation application form, supported by an affidavit, and forwarded
the application, together with the referral, to the first respondent.
On 13 September, applicant received notice from first respondent that
conciliation had been set down for 28 September 1999. On attending the
conciliation meeting he was informed by the Commissioner (second
respondent) that condonation had only been provisionally granted. The
second respondent then suggested that he would first try to conciliate
the dispute which would have the effect that if the matter is settled,
condonation would be automatic, but if the matter remained unresolved he
would then consider the application for condonation.
4. The parties agreed to this process. Conciliation did not resolve the
4. The parties agreed to this process. Conciliation did not resolve the
dispute and the Commissioner then decided to consider the application
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for condonation. In considering the application he invited applicant
and third respondent to present argument. The applicant effectively
said he stood with the contents of his written application. Respondent
presented oral argument and thereafter the applicant replied thereto.
The second respondent thereafter considered the matter and handed down
his determination on 1 October 1999, refusing applicant's condonation
for the late referral.
5. Applicant seeks to set aside the second respondent's determination on
the grounds that the Commissioner (second respondent) had committed a
gross irregularity, failed to properly consider the application and/or
the determination is not justifiable in relation to the material
properly available to him and the conclusion he eventually arrived at.
6. The form issued by the first respondent which a person seeking
condonation for late referral are required to complete and which form
was completed by the applicant's representatives, records the following:
"1. What are your reasons for the delay? (Supply full details and proof of
the whole period).
The applicant approached our offices within the proper timespan to bring
an application to the CCMA for unfair dismissal. Our offices faxed the
forms to the employer (Val U Flavours) on 1 June 1999 and with the
intention to fax the proof together with the application form
thereafter. It has come to our attention that such form was not faxed,
our offices cannot find proof of such faxes to yourself.
2. Why do you think the dismissal was unfair?
The applicant was fired without a disciplinary hearing. Dismissal was
based on false accusations that employee sold company stock without
employer's knowledge or
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consent. Furthermore, the dismissal was based on falsely manufactured
evidence which employee was not given an opportunity to refute. The
employee was not informed of the nature of the allegations nor was there
a disciplinary hearing.
3. How important is your case?
Only applicant (employee) was affected in this matter. The seriousness
for applicant is that he not only lost his employment but also has a
criminal charge of theft pending against him. The criminal charge was
withdrawn on the basis that the employer had insufficient proof of theft
against applicant.
4. Are there any other factors which you would consider to be relevant?
Applicant was in proper time to institute such proceedings. Our
offices were under the belief that application had been made. We wrote
a letter dated 15 July 1999 to the CCMA requesting a response to the
application for conciliation (copy attached)."
7. The third respondent, arguing against the condonation, did not address
the lateness of the application, but rather argued that the dismissal
was both substantively and procedurally fair, emphasising particularly
that the relationship of trust had broken down because of applicant's
conduct and the third respondent could therefore not retain applicant in
its employ. In reply, applicant denied that the dismissal was both
substantively and procedurally fair.
8. Based on the above arguments the second respondent made the following
finding:
"1. Degree of lateness
The dismissal took place on 11 May 1999 and the matter was referred to
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the CCMA on 22 July 1999. The referral was approximately 41 days late.
Condonation was provisionally granted on 13 August 1999.
2. Reasons for the lateness
The employee approached his attorneys on or about 11 May 1999 and
instructed them to proceed with an application for conciliation to the
CCMA with regards to an alleged unfair dismissal. The employee's
attorneys faxed the LRA 7.11 form to the employer on 1 June with the
intention of faxing the application, together with proof of service, to
the CCMA. I do not consider that there has been any explanation why the
application was only brought on 22 July 1999, other than it was the
intention of the employee's attorneys to do so. Ignorance of the law
is not sufficient reason to grant condonation. In this case the
employee was assisted by legal practioners who are aware of the legal
requirements.
3. Prospects of success
The employee was dismissed for selling company stock without his
employer's knowledge and consent. The employee argued procedural and
substantive unfairness on the
basis that there was no disciplinary hearing and that the
allegations were based on false accusations. The employer's business
consists of five staff members. The employer argued that he spoke to
the employee on 5 May regarding the stock the employee has sold. The
employee did not admit to selling stock but admitted that he has given
stock to a client, a Mr Van der Westhuizen, and that he has received
money for the stock. The parties had agreed to get together again on
the accusation to afford the employee the opportunity to rebut what the
employer has put to him. The employee came back to the employer on
Tuesday 11 May and profusely apologised and asked the employer to
Tuesday 11 May and profusely apologised and asked the employer to
forgive him. The employer told him that he has violated the trust
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relationship and that he was giving him the option to resign or he will
be dismissed. In the employee's reply he stated that he is astounded
that the employer could say that he should have admitted that he was a
thief.
The Code of Good Practice with regards to disciplinary measures short of
dismissal indicates that the size of an employer's business can
determine how formal or informal the approach of disciplinary hearings
should be. Taking this into consideration I cannot find that the
employee was not given an opportunity to state his case in defence of
the allegations that was put to him.
Given the limited argument from the employee, together with the
employer's argument on the substance of the case, I am not convinced
that the dismissal was substantively unfair.
4. The importance of a case
The employee's argument is that the only affected party in the matter
was he on the basis that he has lost his employment. The employer
argued that they had instituted criminal charges against the employee
but have decided to drop the criminal charges for the reason that it is
difficult to prove theft in a criminal court and not to tarnish the
employee's name. The employee argues that it is because of lack of
sufficient evidence that the employer has dropped the charges.
5. Analysis of argument
In the absence of good cause shown with regard to the degree of lateness
and the low prospects to prove that the dismissal was procedurally
unfair, I find insufficient grounds for granting condonation.
The case is therefore closed."
9. Firstly, with regard to degree of lateness, I find it incomprehensible
how the second respondent could arrive at the conclusion that the reason
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for the delay was ignorance of the law. This was not the evidence
before him. The only evidence before him was that applicant's
erstwhile attorneys made an error by failing to fax a copy of the
referral to the first respondent. Second respondent was therefore
obliged to consider whether the error by the attorneys was such that it
could not be excused. In this regard the second respondent had to
consider whether there was any fault on the part of the applicant who,
at all times, intended to pursue his claim and timeously sought legal
assistance. This, the second respondent, failed to do.
10. Secondly, with regard to prospects of success, here the second
respondent was not presented with any evidence, all he had was two
conflicting arguments, both untested. In the absence of any evidence I
fail to see how he could arrive at the conclusion he did. Furthermore,
he finds that the third respondent cannot be faulted in respect of the
procedure it employed because of the size of its business. In this
regard there was no evidence or argument about the size of respondent's
business at the hearing of the condonation application. More
importantly, second respondent's reliance on Item 3 of Schedule 8 of the
Act is totally misguided. Item 3 of the said Schedule, as second
respondent properly records, relates to disciplinary measures short of
dismissal. It does not relate to procedure to be adopted in case of a
dismissal, which is the dispute with which the second respondent was
confronted. With regard to the importance of the case, it is not evident
what it is that the second respondent intended to convey.
11. Based on the above it is quite clear to me that the second respondent
11. Based on the above it is quite clear to me that the second respondent
failed to appreciate the evidence before him in arriving at his
determination. Thus I have no hesitation in finding that the second
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respondent committed a gross irregularity in relation to his
responsibilities as a Commissioner to properly consider the application
for condonation.
12. Further, I believe second respondent's conduct of the proceedings also
to be wanting. I do not believe it is sufficient to ask an applicant
for condonation whether or not he wishes to add anything further to any
written representations he may have made. It is incumbent on a
Commissioner seized with an application for condonation to explain to
the applicant what the grounds are which need to be satisfied before
condonation will be granted and to ask such applicant, if he(Applicant)
so wishes, to lead evidence if such evidence is not placed before him on
affidavit and to similarly advise the respondent of its rights.
Failure to do this, as has happened in the present matter is, I believe,
sufficient grounds to set aside the determination arrived at by the
Commissioner.
13. Applicant has also argued that the Commissioner was wrong in attempting
to conciliate the dispute before making a determination on the
condonation application. I am not certain that there is anything
principally wrong in doing so especially where both parties consent to
such procedure. However, the danger, as is evident from this matter,
is that a Commissioner who attempts to conciliate the dispute should not
be the same Commissioner who would then hear the condonation
application. This is so because it cannot always be guaranteed that a
Commissioner may be able to disabuse himself or herself of information
given to him or her at the conciliation stage, which may be given to
him/her on a confidential basis. In addition, he or she may always be
open to be attacked on the grounds that his or her determination on the
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merits is tarnished by the information provided to him or her during
conciliation. Furthermore, a party may be reluctant to place all the
facts before a Commissioner to attempt resolution of the dispute for
fear that it may have some bearing on the condonation application, if
the matter is not resolved, it may also affect the resolving of the
dispute at conciliation.
14. In any event, having found that the determination should be reviewed and
set aside, I have been invited by the applicant to exercise my power to
grant condonation to the applicant for the late referral of his dispute
to the first respondent. In this respect I have been referred to
various authorities. I do not intend dealing with them; suffice it to
say that I am not satisfied that this is a matter in which I should
substitute my decision for the discretion of the first respondent. I
am consequently not prepared to do so.
15. Finally, with regard to costs as the matter is opposed, I am satisfied
that this is a matter in which costs should follow the result. In the
result I make the following order:
"1. The decision of the second respondent under first respondent's case
number C589/99 is hereby reviewed and set aside.
2. The first respondent is ordered to consider the condonation application
afresh and that a Commissioner, other than the second respondent, be
allocated this matter.
3. That third respondent pay the costs of this application.
WAGLAY, J
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