J4557/00-MC
Sneller Verbatim/MC
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J4557/00
2001-01-30
In the matter between
SIMON M KGWALE Applicant
and
ST STITHIANS COLLEGE Respondent
________________________________________________________________
J U D G M E N T
________________________________________________________________
REVELAS J:
1.This is an application to set aside the ruling by the second respondent, a
commissioner appointed by the first respondent, the Commission for
Conciliation Mediation and Arbitration, (“the CCMA”).
2.I have considered the matter and decided to come to the assistance of the
applicant.
3.The condonation ruling reads as follows:
"Length of Delay and Explanation
The referral in this matter is approximately six months late. The explanation given for the
delay is that the applicant initially approached his Union for assistance. It appears that the
applicant stayed at home for four months, with pay.
Prospects of Success
The applicant states 'no real reasons known'.
Prejudice
The applicant state that the agreed age for retirement is 63 and he was not looking
forward to being retrenched.
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JUDGMENT1
Ruling
The delay in this matter is excessive and no proper or acceptable explanation has been
given. In the result condonation is refused."
4.In so far as the prospects of success are concerned the employer party and
the condonation hearing put the following facts before the commissioner.
(He is the second respondent in this matter.)
5.The applicant was employed as a cleaner by St Stithians College, the third
respondent and it was the policy of the respondent that the retirement
age is 60 years policy. At the beginning of 2000 most cleaning staff
were retrenched and paid out a severance package in accordance with
section 196 of the LRA. Those cleaning staff who had reached normal
retirement age (60 years) were informed that they would retire from the
college, the third respondent, in the month they turned 60 years and the
applicant was amongst a small group of employees who reached that normal
retirement age.
6.It appears that the commissioner did not question whether the applicant
understood what is meant with “prospects of success” because the answer
which the commissioner quotes as the applicant’s answer “no real
reasons known” does not make sense.
7.The applicant gave me a copy of the school pension scheme of which he was a
member and which applied to his employment conditions where the
retirement is given as 63 years old and not 60 years as the commissioner
was advised.
8.Furthermore the reason for delay was not properly dealt with by the
commissioner, and should have been.
9.The Union and the employer (or the third respondent), entered into
settlement negotiations and during these negotiations the applicant was
required to stay at home for four months. At this stage he had no
reason to refer the matter to the CCMA and therefore it was an
J4557/00-MC
irregularity on the part of the third respondent to calculate the delay,
from a date prior to these settlement negotiations. The settlement
negotiations clearly suspended any time within which the applicant could
have referred the matter.
10.In the circumstances, I grant the order as prayed for by the applicant,
that the ruling of the second respondent dated 17 September 2000 is set
aside.
________________
E. Revelas
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JUDGMENT3