Sneller Verbatim/JduP
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J4028/00
2002-02-12
In the matter between
TELKOM S A Applicant
and
COMMUNICATION WORKERS' UNION AND OTHERSRespondent
and
CASE NO:
J3767/00
In the matter between
MELAPO TECHNOLOGIES (PTY) LTD
Applicant
and
COMMUNICATION WORKERS' UNION AND OTHERS
Respondent
_______________________________________________________________
_
J U D G M E N T
_______________________________________________________________
_
REVELAS, J:
1. It is important to note that there are two applicants
in this matter, and that the two matters were heard
simultaneously.
1. 1. 2. Telkom, one of the two applicants in this matter,
sold the business of its Uvatek Division to the second
respondent, who is also the applicant in the other
application, whom I shall refer to as "Melapo", as what
it termed "a going concern", with effect from 1 April
2000. The sale of the Uvatek business formed part of
outsourcing of Telkom's business. The applicant also
offered voluntary retrenchment packages to certain
employees, of Melapo.
3. On 31 May 2000 the Union referred three separate
disputes arising out of the Uvatek transaction to the
Commission for Conciliation, Mediation and Arbitration
for conciliation (“the CCMA”). The dispute, in the
first review application, is about an alleged unfair
dismissal on 31 March 2000 by the applicant, of certain
members of the Union who were employed in the Uvatek
business of the applicant.
4. Referral of the Telkom dispute and another dispute
called "the Voluntary Retrenchment, or Melapo,
Dispute", were both referred outside the 30day time
limit prescribed by section 191(1) of the Labour
Relations Act, 66 of 1995 ("the Act"). The Union then
made application to the CCMA for condonation of the two
late referrals. The applications were opposed and came
before the third respondent, (“the commissioner”), who
condoned the later referrals of the Telkom and the
Melapo dispute.
5. The applicants now seek to review the aforesaid
determination condoning the two late referrals in two
separate applications. For purposes of convenience the
two applicants set down their applications to be dealt
with simultaneously.
1. 6. Prior to the hearing of the condonation application
the commissioner was furnished with affidavits and
other documents setting out the various facts and
positions of the parties, and heard full argument on
them.
7. The case for the respondents was that before giving
effect to the Uvatek sale Telkom advised the Union and
its members to be affected by the sale, as in terms of
section 197 of the Act, the employees in question would
automatically be transferred to Melapo and their
consent would be required. The respondents allege that
subsequent to 1 April 2000 the Union and its members
discovered facts which they say caused them to believe
that it had never been the intention of either of the
applicants to transfer one aspect of the Uvatek
business known as the "Single Line Telephone Business"
to Melapo.
8. The respondents further contended that Telkom and
Melapo had contemplated the retrenchment of
approximately 350 employees engaged in December by a
telephone business, subsequent to the transfer. One
week after the transfer of the Uvatek employees, Melapo
gave its first indication to retrench, and offered
voluntary retrenchment packages to a number of
employees. On 26 April 2000 Melapo announced that it
would retrench certain employees on 1 April 2000. On 30
April 2000 such retrenchments were indeed effected.
1. 9. Following the transfer and subsequent retrenchment
of the employees in question, the Union identified the
three separate disputes and referred them to the CCMA.
These disputes are separate and should be stated
herein:
10. Section 197 of the Act contemplates the automatic
transfer without consent of employees where the whole
or part of a business is sold as a going concern.
11. The Union's case is that the single line telephone
business, which was part of the Uvatek business sold by
Telkom to Melapo, was not sold as a going concern in
that it was understood by both parties that this
business would be closed and that the employees engaged
therein would be retrenched. The employees involved in
this business could not therefore be subjected to the
automatic transfer as contemplated in section 197 of
the Act. Since their consent was not sought or
obtained, says the Union, in regard to any transfer by
Telkom to Melapo, they remained employees of Telkom.
12. It was further contended by the Union, that Telkom
effected the de facto termination of its members’
services on 31 March 2000. On that date therefore they
were unlawfully dismissed by Telkom. This dispute is
then referred to as " the Telkom dispute ".
1. 13. On 12 and 26 April 2000 Melapo persuaded certain
employees to terminate their employment by the
acceptance of a voluntary retrenchment package. In
doing so Melapo induced acceptance of this package by
the employees affected. The Union and its members
contend that it did so by threatening employees that
should they not accept the package they would be faced
with compulsory retrenchment on less favourable terms.
14. It was argued at the condonation hearing, before the
commissioner, that in effect Melapo's ultimatum
amounted to a choice between resignation and dismissal.
It was argued that the issuing of this threat made
continued employment intolerable, with the result that
Melapo is deemed to have dismissed these employees
unlawfully.
15. Furthermore, Melapo failed to consult with the Union
prior to offering voluntary retrenchment packages to
its members despite an ongoing collective bargaining
relationship between Melapo and the Union.
Consequently, it was argued, the dismissal of the
employees who accepted the voluntary retrenchment was
unfair, and this dispute was referred to as "the
voluntary retrenchment dispute".
16. The two aforesaid disputes are those relevant to this
application before me and the application for
condonation which was before the commissioner in this
matter.
17. Thirdly, on 30 April 2000, Melapo retrenched certain of
the Union's members in accordance with a notice issued
by it on 26 April 2000. In so acting it was argued that
Melapo failed to comply with the provisions of section
189 of the Act. This dispute was referred to as " the
compulsory retrenchment dispute ", which is not before
me.
18. Section 191(1) of the Act reads:
1. "If there is a dispute about the fairness of a dismissal,
the dismissed employee may refer the dispute in writing within
30 days of the date of the dispute to the Commissioner."
Section 119(1) of the Act reads:
"(1) The date of the dismissal is the earlier of -
(a) the date on which the contract of employment is terminated; or
(b) the date on which the employee left the service of the
employer."
19. In terms of section 191(2) of the Act an employee is
enjoined "to show good cause before a commissioner
would permit him or her to refer the dispute after the 30-day
time limit has expired. The section makes it clear that
condonation is not there merely for the asking, the employee
must tender an adequate explanation for the delay. This
explanation must be considered by the commissioner. Due
regard must also be had to other generally accepted
requirements for the grant of condonation as contemplated in
the words 'good cause'."
The aforesaid was held in Rustenburg Platinum Mines
(Rustenburg Section) v CCMA and Others 1998 (19) ILJ 327
(LC).
20. See also: Fidelity Guards Holdings (Pty) Ltd v Epstein
and Others 2000 (21) ILJ 2001 (LC), at 214, para.21.
1. 21. When a commissioner is faced with an application
to grant condonation, there are certain factors which
he or she should consider which is applicable to the
High Court and all other courts, including the Labour
Court. That is the degree of lateness, the explanation
for the delay, the prejudice to the parties, and
importance of the matter and the prospects of success.
In this regard see Melane v Santam Insurance Co Ltd
1962 (4) SA 531 (A), at 532CF, and also the Notice of
the Guidelines of Conciliation Proceedings, Government
Gazette Notice R896 GG 18936.
22. On behalf of Melapo, it was argued and this was the
main thrust of its argument that the most important
question to consider when faced with a condonation
application, is whether there is a reasonable prospect
of success. It was argued that this the commissioner
failed to do because on the facts before him he could
not have rationally come to a conclusion that there
were any prospects of success or good prospects of
success for that matter.
23. The gist of Telkom's argument was that there is no
adequate explanation for the delay, and in this regard
reliance was placed on the judgment of the Labour
Appeal Court in NUM v Council for Mineral Technology
1997 (3) BLR 209 (LAC) where it was held that:
"A further principle which is applied, and that is that without a
reasonable and acceptable explanation for the delay, the
prospects of success are immaterial, and without prospects of
success, no matter how good the explanation for the delay, an
application for condonation should be refused."
24. The third respondent determined the following in
respect of the degree of lateness, that the voluntary
retrenchment disputes concerned dismissals that were
effected between 12 and 26 April 2000, the dispute
should have been referred within 30 days, i.e. between
12 and 16 May 2000, and in the circumstances this
referral was between 5 and 19 days late.
25. The other dispute, namely the Telkom dispute, was 30
days late.
26. Insofar as the degree of lateness is concerned I may at
this stage observe that, although not negligible, these
delays are certainly not substantial.
27. In respect of the prospects of success in the Melapo
dispute, the third respondent found that a
communication by the chairman of Melapo to the
employees namely:
"It is specifically recorded that the terms and conditions of this
offer, which we consider to be extremely generous, will not be
construed to represent a precedent for any future
restructuring exercise that may be conducted by the company."
amounted to what the commissioner, regarded as coercion. In
his reasoning he did express opinions, which amounted to
criticism of the chairman in question, which demonstrates that
he indeed considered on the prospects of success.
28. Insofar as the Telkom dispute is concerned, he did not
make a specific finding as to prospects of success, but
in dealing with the reasonableness of the explanation
for the delay, such reasoning could be implied.
1. 29. This was an application for review in terms of
section 158(1)(g) of the Act. It was held in Carephone
(Pty) Ltd v Marcus N.O. and Others 1998 (10) BLLR at
1326 (LAC) that
"When the Constitution requires administrative action to be
justifiable in relation to the reasons given for it, it does seek to
give expression to the fundamental values of accountability,
responsiveness and openness. It does not purport to give
courts the power to perform the administrative function
themselves, which could neither affect its justifiability in
review processes equated to justness or correctness."
30. Section 158(1)(g), which provides for review on any
ground recognised by law, is often seen as a more
expansive and permissive basis for review rather than
that contained in section 145 of the Act which simply
states what judicially has been recognised as the
common law grounds of review.
31. With regard to the relationship between constitutional
review and common law review, the Supreme Court of
Appeal held as follows in Commissioner for Customs &
Excise v Container Logistics (Pty) Ltd 1999 (8) BCLR,
at 833 (SCA):
"Although it is difficult to conceive of a case where the
question of legality cannot ultimately be reduced to a question
of constitutionality, it does not follow that common law
grounds for review seems to exist. What is lawful and
procedurally fair within the purview of section 24 is for the
courts to decide, and I have little doubt that to the extent that
there is no inconsistency within the Constitution, the common
law grounds for review intended to remain intact."
32. I was referred to this dicta by counsel on behalf of
the respondents.
1. 33. What is of utmost importance in this application
is to appreciate that the Labour Court is not entitled
to reconsider the application for condonation. The
commissioner accepted the explanation proffered by the
respondents, and his reasoning is not rationally
disconnected to the facts before him.
34. Section 197 is one of the more difficult labour law
topics. It is quite conceivable that the employees may
not have realised this immediately, and only after
speaking to their lawyers realised that they might,
possible have a case. That is what the explanation for
the delay amounted to in respect of the Telkom dispute,
as well as the Melapo dispute.
35. It is possible that even if another commissioner may
have found this explanation unconvincing, that is not
the test to apply in applications such as this,
according to the Carephone decision. In accepting a
voluntary severance package does not mean that the
matter is brought to an end automatically. To expect
from a commissioner to have made such a finding, with
regard to the prospects of success, is simply setting
too high a standard.
36. The third respondent stated, and I believe in relation
to both disputes:
1. "Insofar as the delay is concerned in this matter, this
matter is not a usual matter in the sense that there are issues
that do not serve as an ordinary unfair dismissal matter. The
issues are not open and closed, as the respondents would have
us believe. These issues need to be considered conscientiously
and the applicants, the members of the first respondent, were
required to acquire a proper understanding of the dispute
within the circumstances that they found themselves. In these
circumstances I am satisfied that the delay was not
unnecessary."
37. Even though the commissioner had substantial material
before him, as is not always the case in other
condonation applications before commissioners of the
CCMA, the issues were not as simple as made out by the
two applicants. This was not the kind of matter in
which a commissioner should have found had poor
prospects of success. The same applies to his
understanding of the explanation for the delay, which
was clearly not substantial as I have said before.
38. In my view there are no grounds upon which I can find
that the commissioner's finding should be set aside on
review.
39. Consequently both applications for review are dismissed
with costs.
_______________
E. Revelas
ON BEHALF OF THE APPLICANTS: ADV A FRANKLIN SC
ON BEHALF OF MELAPO: MR ROBIN CARR
ON BEHALF OF RESPONDENT: ADV P R JAMMY