IN THE LABOUR COURT OF SOUTH BAFRICA REPORTBALE
HELD AT JOHANNESBURG
CASE NO: JR125/01
In the matter between:
ATHOL ALISTAIR JAYES Applicant
and
SIPHO RADEBE First respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION Second Respondent
THE STANDARD BANK OF SOUTH
AFRICA LIMITED Third Respondent
JUDGMENT
MASERUMULE AJ:
1. The Applicant seeks an order reviewing and setting aside a ruling made by the
first respondent in terms of which he refused to condone the late referral to
conciliation of a dispute involving the alleged unfair dismissal of the applicant.
The referral to the CCMA was 947 days late, although in the first respondent’s
ruling, it is simply sated that the referral is more than 850 days late. The difference
is not material, it being common cause between the applicant and the third
respondent that the period of delay is long.
2. The applicant’s employment terminated on 16 January 1998. It is in dispute
whether the termination amounts to a dismissal or was by consent. It appears from
the applicant’s condonation application that he claims constructive dismissal.
3. The applicant referred an alleged unfair dismissal dispute to the CCMA on 16
October 2000 and applied for condonation for the late referral of the dispute. This
application was supported by a fairly lengthy affidavit and annexures. The third
respondent did not file an answering affidavit within the period prescribed by the
CCMA rules.
4. On 8 December 2000, the first respondent made a ruling dismissing applicant’s
application for condonation. The ruling consists of five paragraphs, the material
portion of which reads as follows:
“I have applied my mind to all the issues raised by the Applicant in its (sic)
support for the application.
S191(2) of the Act, requires the Applicant to show good cause for its application
to be successful. In addition the purpose of the Act is to have disputes resolved as
expeditiously as possible. Having applied my mind to all the issues raised by the
Applicant and (sic) I am not persuade that the Applicant has shown good cause
for his application to succeed. As a consequence the application stands to fail.”
5. The material facts that can be gleaned from the affidavit submitted by the
Applicant in support of his application for condonation can be summarized as
follows:
5.1 he had been in the employ of the first respondent for some thirty five years at the
time that his employment contract terminated, just as his father had been
employed by the first respondent for some forty seven years;
5.2 he served as the managing director of the Stanbic Bank Zimbabwe for the period
1995 until September 1997;
5.3 on his return to South Africa, the third respondent offered him the position of
Divisional general Manger, Homeloans Division, which required that he should
stay in Johannesburg and work out of the third respondent’s head office;
5.4 he was reluctant to move from Cape Town, where his wife and children were,
because his wife was not keen to move. He informed the third respondent of this
fact;
5.5 the third respondent wanted the applicant to move to Johannesburg with is wife to
commence his new duties in January 1998 and the applicant kept raising the fact
that his wife could not move with him at the same time;
that his wife could not move with him at the same time;
5.6 numerous correspondence passed between the applicant and the third respondent
regarding his move to Johannesburg, and centered on third respondents apparent
insistence that the applicant should move with his wife and the applicant’s
indication that this was not possible;
5.7 eventually and in a letter dated 16 January 1998, the third respondent wrote a
letter to applicant in which it was stated, inter alia, that
“..we regrettably have come to the point where unless you are able to meet the
Group’s requirements for executive performance based at our head offices in
Johannesburg, there is no alternative but for you to leave the Group. You
indicated an acceptance that we have unfortunately reached this point and I
accordingly, with regret, set out the terms of your termination of service, which
has immediate effect, as follows:.”
5.8 The applicant took up employment with BOE as Regional Manager, Cape, on 28
April 1998, where he remained until June 2000 when he left;
6. The applicant offered different explanations for the delay in referring his alleged
unfair dismissal dispute to the CCMA for conciliation. The different reasons
offered are as follows:
6.1 he was in deep depression as a result of his sojourn in Zimbabwe and the
humiliating manner in which he left the service of the third respondent. The
applicant had attached a report by a clinical psychologist to his affidavit to support
his assertions;
6.2 he was unaware that he could refer a dispute to the CCMA and was consequently
not aware of the thirty day timelimit, in part because the CCMA came into
existence whist he was in Zimbabwe;
6.3 he consulted with an attorney, Piet Faber, in June 1998 and was informed about
the need to complete referral forms. He was also advised that the process would be
highly traumatic and stressful and he felt that he would not be able to cope with it;
6.4 he accepted and acted on a suggestion from Piet Faber to seek a meeting with Dr
Strauss, the nonexecutive chairman of the third respondent, to discuss the
termination of his employment with him. He subsequently met with Dr Strauss
around June 1998 and later received a note form the latter that he could not assist
him(the date of the note is not stated nor is the note attached to the affidavit);
him(the date of the note is not stated nor is the note attached to the affidavit);
6.5 Piet Faber had advised him that is case was a “50/50” one, that he would get one
year’s salary at most if he pursued it, which he felt was not sufficient to justify
going through trauma associated with such litigation;
6.6 He was reluctant to go to court against the third respondent as he hoped that there
could be a reconciliation and he could resume employment with the third
respondent;
6.7 He consulted with Neil Van Zyl, a labour consultant, “during 1999” who advised
him to propose independent mediation to the third respondent. He acted on this
advice and sent a letter to the third respondent with such a proposal but never
received a reply;
6.8 He communicated with Van Zyl in June 1998 and the latter said he would “apply
for condonation and speak to an advocate.’ The applicant states that he never
heard from Van Zyl again, although he himself does not allege that he made any
attempts to get hold of Van Zyl;
6.9 His wife met with a representative of the third respondent on 10 August 2000 and
discussed applicant’s position, but nothing came of it;
6.10 His wife phoned Andrew Levy and Associates on 11 September 2000 and gave
them instructions to pursue the matter. The applicant does not say whether
anything was done and if not, what the problem might have been.
7. The above explanation is what was before the first respondent when he considered
applicant’s application and made his ruling. The question is whether the ruling is
irrational or not justifiable, having regard to these facts, see Shoprite Checkers
(Pty) Ltd v Ramdaw NO & Others (2001) 21 ILJ 1603 (LAC).
8. Mr Landman , appearing on behalf of the applicant, submitted that apart from
emphasizing the fact that the referral was some 850 days late, the first respondent
failed to provide any other reasons for concluding that the applicant failed to show
good cause for the late referral. The failure to provide other reasons, so submitted
Mr Landman , gives rise to an inference that the first respondent did not apply his
mind to the facts. He further submitted that first respondent’s failure to give
reasons for rejecting applicant’s explanation and the absence of any comment on
the prospects of success, indicate that the first respondent did not understand how
to exercise his discretion properly. I pause here to mention that the review
to exercise his discretion properly. I pause here to mention that the review
application was served on the first and second respondents. The second respondent
filed a notice in which it is stated that the “ First Respondent stands by the reasons
for his decision as furnished in Condonation Ruling GA118185…and has nothing
further to add thereto.”
9. Mr Landman further submitted that the first respondent failed to take into account
applicant’s prospects of success, which he submits are good. In this respect, he
submitted that third respondent’s insistence that applicant’s wife should
immediately relocate to Johannesburg with him was not only unreasonable, but
also discriminatory. This demand, so he submitted, made continued employment
for applicant intolerable and constitutes an unfair dismissal. Had the first
respondent applied his mind to applicant’s prospects of success, was the further
submission, he would have condoned the late referral, particularly because in the
absence of an opposing affidavit from the third respondent, it could not be said
that third respondent would suffer any prejudice.
10. Mr Redding , appearing on behalf of the third respondent, submitted that not only
is the first respondent’s ruling a rational one, but also correct. He submitted that
the facts before the first respondent indicated that the delay was inordinately long,
the explanation was woeful, and based on applicant’s alleged depression, in fact
bordered on the dishonest, given that the applicant had in fact consulted an
attorney in June 1998 and was employed in a senior position from April 1998 until
June 2000. As regards prospects of success, Mr Redding submitted that the
termination of applicant’s employment was consensual and that the prospects of
success are thus very slim. Mr Redding submitted that given the long delay, an
inadequate and unacceptable explanation, coupled with weak prospects of success,
justified first respondent’s refusal to condone the late referral of applicant’s
dispute to the CCMA.
11. I intend adopting the approach of Seady AJ in Moolman Brothers v Gaylard NO &
Others (1998) 19 ILJ 150 (LC). Her remarks at 156AD are apposite:
“This is not an appeal from the decision of the commissioner. It is an application
to review and set aside her decision on the grounds that grossly unreasonable or
seriously irregular. I doubt that this court, on the facts before the first respondent
would have granted condonation. However, this does not make first respondent’s
decision reviewable.”
12. Admittedly, first respondent’s reasons are to say the least, cursory. He simply
states that he applied his mind to all the issues raised by the applicant, without
specifying them. Neither does he make any specific reference to the factors set out
in Melane v Santam Insurance Company Limited 1962 (4) SA 531 (A), perhaps
in Melane v Santam Insurance Company Limited 1962 (4) SA 531 (A), perhaps
save for the period of delay. Having decided not to add anything to the reasons
that he had already given, it is fair to infer therefrom that the first respondent has
no other reasons to offer for his decision.
13. Accepting the submission made on behalf of the applicant that first respondent put
too much emphasis, if not the only emphasis, on the period of delay, does such an
approach justify an interference with his decision, bearing in mind that he was
exercising a discretion? I do not believe so.
14. There is no doubt that the period of delay is excessive. A delay of more than two
and a half years is excessive, or as Seady AJ prefers to call it, egregious,
particularly having regard to the fact that the referral was required to have been
made within thirty days. As the first respondent correctly pointed out in his ruling,
the Labour Relations Act requires that disputes be expeditiously resolved. A delay
such as the one here does nothing to achieve that objective.
15. There is yet another consideration that militates against interference with first
respondent’s ruling, and that relates to the explanations tendered by the applicant
for the delay. Whilst the first respondent does not directly refer to these
explanations, he does state that he considered all the issues. One of the issues dealt
with at length by the applicant is why he did not refer the dispute within the
prescribed period. In this regard, I agree with Mr Redding’s submission that the
explanations offered are woeful. I would go as far as to say that they are also
contradictory and inconsistent. The applicant relies heavily on the fact that he was
depressed as a result of what he considered to have been unfair treatment by the
third respondent. It is not difficult to sympathise with the applicant in this regard,
having regard to his long and apparently exemplary service with the third
respondent. What is difficult to understand is how the applicant could be so
depressed as to be unable to refer his dispute for conciliation, and yet
simultaneously be able to occupy such a senior position as a Regional Manager of
a financial services company for two years, obtain advice from an attorney
regarding his dispute with the third respondent and act on such advise. I refer in
this regard to hi meeting with Dr Strauss.
16. It is clear from applicant’s own affidavit that one of the reasons that he decided
against pursuing the dispute was because of what he considered to be insufficient
compensation that he could get, which is inconsistent with the heavy emphasis
that he has placed on his depression as the explanation for the delay. It also
appears that the applicant, out of some sense of loyalty, (it is open to question
whether same was misguided), did not want to litigate against the third respondent
and chose to rather explore the possibilities of an amicable solution, which is
and chose to rather explore the possibilities of an amicable solution, which is
confirmed by his meeting with Dr Strauss in June 1998, the letter that he sent the
third respondent proposing independent mediation and the meeting between his
wife and a representative of the third respondent on 10 August 2000.
17. There are also unexplained periods of delay, such as the year 1999. In his
affidavit, the applicant refers to being advised b Van Zyl to refer an unfair
discrimination dispute to the CCMA (which does not appear to have been done as
the third respondent is unaware of such a referral) and to propose independent
mediation. The latter proposal is contained in a letter dated 14 January 2000,
suggesting that it was made in late 1999. For the whole of 1999, there is no other
indication of what the applicant did to pursue the matter.
18. In the light of the inadequate and in my view, unacceptable contradictory and
inconsistent explanations offered by the applicant, I cannot find that first
respondent’s ruling is irrational, having regard to his statement, terse as it is , that
he applied his mind to all the issues raised by the applicant. First respondent’s
ruling is fully justified, having regard to all the facts that were before him. This is
a case where the long period of delay, coupled with an unacceptable explanation
far outweighed whatever prospects of success the applicant may have, cf NUM v
Council for Mineral Technology [1999] 3 BLLR 209 (LAC) at 211GI.
19. It needs to be said that in any event, applicant’s prospects of success cannot be
said to be so strong as to outweigh the long deal and weak explanation. The
applicant relies on alleged constructive dismissal. There is an indication from the
letter of termination quoted above that there may well have been consensual
termination. It cannot, in the circumstances, be said that applicant’s prospects are
more than average.
20. This is a case where even if the court were to consider applicant’s application for
condonation afresh, based on the same set of facts that were before the first
respondent when he made his ruling, the outcome would not be any different. In
the circumstances, applicant’s review application must fail. Both parties sought
costs if successful and in any event, there is no reason why costs should not follow
the result, having regard to the requirements of the law and fairness.
21. The application for review is accordingly dismissed and applicant is ordered to
pay third respondent’s costs.
On behalf of the Applicant: Adv A Landman, instructed by Joubert Attorneys
On behalf of Third Respondent: Adv A Redding, instructed by Deneys Reitz Inc.
Date of hearing: 2 August 2002
Date of judgment: 7 August 2002.
___________________________
MASERUMULE AJ