IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
Case No: C1118/2001
In the matter between:
RAHUL GRILO Applicant
and
THE JULIUS SOLOMON GROUP First Respondent
THE COMMISSION FOR CONCILIATION Second Respondent
MEDIATION AND ARBITRATION
W F MARITZ N.O. Third Respondent
JUDGMENT
Edited
WAGLAY J:
1. The Applicant was dismissed by his employer, the First Respondent herein, on 18
July 2000. Believing his dismissal was unfair he referred same to the CCMA for
conciliation. The dispute was referred to the CCMA on 2 August 2000. The
CCMA set the matter down for conciliation for 8 September 2000. On 8
September 2000, and at the conciliation meeting, the First Respondent informed
the commissioner attempting to conciliate the dispute, that the dispute should have
been referred to the Bargaining Council for the Textile Manufacturing Industry
(this being the body which had the jurisdiction to deal with the matter).
2. On the same day (8 September 2000), the CCMA referred the dispute to the said
Bargaining Council to conciliate the dispute. The Bargaining Council set the
matter down for conciliation for 10 November 2000. The matter could not be
resolved and a certificate to that effect was issued. The Applicant thereafter
requested arbitration. The matter came before the Third Respondent, sitting as a
commissioner under the auspices of the Second Respondent, for arbitration.
3. The matter was set down for 18 January 2001 on which day some evidence was
led, and the matter postponed to 8 February 2001. On 8 February 2001, the First
Respondent appeared with his attorney, who took an exception to the jurisdiction
on the basis that the applicant had been late in referring the matter to the
Bargaining Council for Conciliation, and the issue of the certificate by the
Bargaining Council, in the absence of hearing an application for condonation, was
invalid. According to the First Respondent, since the applicant was dismissed on
18 July 2000, and the referral for conciliation to the Bargaining Council was only
made in September 2000, the Bargaining Council should not have issued a
certificate of nonresolution of the dispute because the referral did not comply
with section 191 of the Act. The Applicant objected to the presence of the attorney
but this objection was overruled on the grounds that a party is allowed
representation to raise an “objection”. The matter was then postponed to 20 March
2001, with the Applicant given an opportunity to formally reply to the objection
raised.
4. On 20 March 2001, the Applicant appeared at the arbitration represented by an
attorney. At this hearing, the Applicant’s attorney conceded that the Applicant’s
referral for conciliation was late, and therefore he should apply for condonation.
5. From the unsigned document written by the third Respondent, which appears to
record the train of events, he records at the end that he had been presented with a
Declaration from the Bargaining Council. This, together with the concession by
the Applicant that he will have to apply for condonation, led him to order that “the
application be dismissed to allow [the applicant] to commence new proceedings
before the Bargaining Council”.
6. The Declaration referred to by the Third Respondent, is a document made under
oath by one Howard Allan Hufke, who is one of the persons appointed to
conciliate disputes by the relevant Bargaining Council. He was the commissioner
who attempted to conciliate the dispute on 10 November 2000. He says that
because of a number of confusing dates in the referral document, he believed that
the referral was timeously made. He makes no mention of the fact that he knew of
the date on which Applicant was dismissed, or on what date the Applicant referred
the matter to the CCMA, or that the matter arrived at the Bargaining Council
through the CCMA. He then records the following in paragraph 11:
“ Accordingly I am prepared to RESCIND the certificate NTX12/2000 and have the
matter placed on the roll for conciliation again and to hear Applicant’s application for
condonation for late submissions of the referral of the dispute…”
7. After the Third Respondent made the decision recorded above, the Applicant was
advised by Van Dyk (his erstwhile attorney), that Van Dyk was attempting to
settle the matter. When Van Dyk failed to do this, he advised the Applicant not to
proceed with his case, and the Applicant then decided to seek other assistance.
The Applicant spent fruitless 5 months searching for assistance, but was unable to
secure any assistance because he was not able to pay for such assistance. On 26
September 2001, the Applicant eventually found his present attorney of record
who was prepared to assist him. It was also then, that he secured employment.
Because of his new found employment which required him to work 6 days a week,
the Applicant was unable to attend consultation on a day, other than Sunday (the
Applicant being too insecure to ask time off having just secured employment after
over 14 months). Furthermore an interpreter had to be secured, as the Applicant is
not fluent in either English or Afrikaans. Eventually, on 22 November 2001, the
Applicant launched the present application.
8. The Applicant now seeks for this Court to condone the late filing of this
application, which is to review and set aside the decision of the Third Respondent,
as well as to grant the review application.
9. The application is opposed by the First Respondent, on the following grounds:
(i) that the Applicant has failed to make out a case to be granted condonation for
failing to launch this application within a reasonable time;
(ii) that the Application is devoid of any merit, as the decision of the Third
Respondent was a natural consequence of the recission order made by the
Bargaining Council, and since the certificate of nonresolution was withdrawn
(which was not attacked by the Applicant in this review), the Third Respondent
was obliged to dismiss the arbitration proceedings.
10. In determining whether or not I should condone the late filing of this application,
which was launched nearly 8 months after the decision sought to be reviewed was
handed down, I am required to consider a number of factors. These include:
(i) the degree of delay;
(ii) the explanation therefore;
(iii) the merits of the principal dispute;
(iv) the prejudice to the party; and
(v) the importance of the matter.
11. That the delay is substantial cannot be disputed. With regard to the explanation,
while this is not totally satisfactory, it is something which has to play a role in the
overall assessment on whether or not to grant condonation. Where the delay is
substantial, and the explanation inadequate, unless it can be found that the merits
of the matter so favour the Applicant, that refusal of condonation may result in
miscarriage of justice then the Court should lean in favour of granting
condonation, unless the prejudice that the other side may suffer is serious or the
matter is of no consequence.
12. With regard to the merits, this matter is nothing short of tragic. Three lawyers (the
arbitrator, an advocate with substantial experience in labour matters; an attorney
for the Respondent who is an expert in labour matters, and the attorney
representing the Applicant at the arbitration), and a person appointed to arbitrate
disputes by the Bargaining Council, collectively succeeded in displaying a rather
superficial reading of the Act. It appears to me that all of them read section 191 of
the Act and felt confident that there were serious problems with the certificate of
non resolution issued by the Bargaining Council. Had they, or at least one of
them, bothered to read Part C of Chapter VII of the Act particularly section 147(2)
and (7), they would have found the following:
“ (2) (a) If at any stage after a dispute has been referred to the Commission,
it becomes apparent that the parties to the dispute are parties to a
council, the commissioner may
(i) refer the dispute to the council for resolution; or
(ii) …
(b)…
(3) …
(4) …
(5) …
(6) …
(7) Where the Commissioner refers the dispute in terms of this
section to a person or body other than a commissioner the date of
the Commission’s initial receipt of the dispute will be deemed
to be the date on which the Commission referred the dispute
elsewhere.
13. The objection raised by the Applicant’s attorney, therefore, was patently merit –
less. Nonetheless, it was found to merit consideration by the Third Respondent,
and the Applicant’s attorneys, likewise, appeared to be caught by his own lack of
knowledge of the Act. All this compounded by one Hufke of the Bargaining
Council, who was quite prepared to “rescind” the certificate.
14. The submission of the First Respondent is that, if one reads paragraph 11 as a
whole (referred to above), it is evident that the Bargaining Council had in fact
withdrawn the certificate and since no challenge is made to the withdrawal of the
certificate, the decision of the Third Respondent cannot be faulted and this Court
cannot review and set aside the Third Respondent’s decision.
15. I do not agree with the First Respondent’s submissions as aforesaid. While it may
be true that Hufke’s statement may be interpreted as a decision to withdraw the
certificate, it is by no means certain that he has done so. This is not the point that
either of the Respondents deal with in the affidavits they have filed. I am not
satisfied, on reading of the relevant paragraph by Hufke, that a decision had
already been made setting aside the certificate. In the absence thereof, the Third
Respondent was not entitled to “dismiss” the arbitration; he should have, as
requested by Applicant’s erstwhile attorney, “struck the matter from the roll” until
he was given an unequivocal notice that the certificate of non resolution had in
fact been withdrawn. Had such notice been given, the Applicant would obviously
have been entitled to apply to have it set aside.
16. The First Respondent’s further argument that the Third Respondent’s decision
should not be reviewed, because it is a normal consequence of the Applicant’s
submission that the matter had to be referred back to the Bargaining Council for
condonation for the late referral, may have been of some merit had all of the
parties then present, not been under the mistaken belief that the Applicant’s
submission was based on that being the only route open for him to follow. Where
all parties make a common mistake, why should the consequence to one of them
be more drastic than to the other. I believe that the objection raised by the First
Respondent at the arbitration led to a sequence of events, which, if this court fails
to intervene, will lead to a miscarriage of justice. The court also cannot stand by
and see a layman who, for good reason, believes he has a valid claim, being left in
oblivion while lawyers find delirium in fanciful points. It is these cases, which
bring home the merits of why lawyers are not being allowed to represent parties in
a number of disputes at the CCMA.
17. This, then, brings me to the issue of prejudice: while the delay would have
resulted in prejudice to the First Respondent, this is, in this matter, not so severe
since the First Respondent has already led substantial evidence dealing with the
dismissal. Also because of what has transpired in this matter, I am satisfied that
this matter is of sufficient importance that it should be allowed to proceed.
18. I am therefore satisfied that condonation for the late referral of the dispute should
be granted and, for reasons already stated, the decision of the Third Respondent is
liable to be reviewed and set aside.
19. With regard to the further progress of the matter, I see no reason why the matter
should not be allowed to continue as it would have but for the intervention of the
First Respondent’s attorney.
20. With regard to costs, I see no reason why costs should not follow the result.
21. In the result, I make the following order:
(i) Condonation for the late filing of the application is granted;
(ii) The decision of the Third Respondent to “dismiss the application” is reviewed and
set aside;
(iii) The Third Respondent must continue with the arbitration hearing from where it
had ended on 18 January 2001; and
(iv) The First Respondent must pay the costs of this application.
_______________
Waglay J
FOR THE APPLICANT: C.F. Haasbroek of Haasbroek Attorneys
FOR THE RESPONDENT: Mr M. Janisch instructed by C&A Friedlander Inc
Date of judgment: 8 August 2002