IN THE LABOUR COURT OS SOUTH AFRICA
Case no: J3854/00
REPORTAB
LE
In the matter between:
Applicant
and
First Respondent
DIRECTOR: INDEPENDENT
MEDIATION SERVICE OF SOUTH AFRICA Second Respondent
GAUTENG DEPARTMENT OF EDUCATION Third Respondent
JUDGEMENT
NTSEBEZA AJ
INTRODUCTION
[1] On the 18 th July 2000, the Applicant (hereinafter referred to as “the
employee”) filed an application in terms of S 145 (2) (a) (i), (ii) and
(iii) of the Labour Relations Act 66 of 1995 as amended (“the Act” )
alternatively S158 thereof.
He sought an order to review and set aside an award made by the
first respondent (hereinafter referred to as “the arbitrator” )
erroneously referred to as award made by the Second Respondent
in the applicant’s notice of motion–. The arbitrator had been acting
under the auspices of the Second Respondent, (hereinafter referred
to as IMSSA) in a matter between the employee and the Third
Respondent, (hereinafter referred to as “the employer”). The
employee alleged that this dismissal was both procedurally and
substantively unfair, in that the arbitrator erred in upholding the
employee’s dismissal by the employer, and that he was
consequently entitled to reinstatement. It was common cause that
the employee had been dismissed on the 17 November 1999. The
arbitrators’ award was handed down on 3 April 2000.
[2] According to the employee, he received the award on the 8 th May
2000. Even though the Court date stamp shows that this Court
received the review application papers on the 18 th July 2000, there
seems to be an acceptance by the employer that the employee’s
application for review (consisting of the notice of motion and
founding affidavit) was served on it on 4 July 2000. The employer
contends that the review application was filed out of time and in
contravention of S145 of the Act, which requires an applicant to bring
a review application within six weeks, calculated from the date on
which he/she was served with the award (or the award became
known to him/her).
The employer’s contention is therefore that the service and filing of
the application was 14 days out of time.
[3] The employer further contends that in the circumstances, the review
application ought to have been accompanied by an application for
condonation for the late filing thereof. Where, as here was the case,
the application for condonation was made on 7 th February 2002,
virtually two years after the review application had been filed out of
time by 14 days, the application for condonation had not been made
within a reasonable time, contended the employer.
[4] This matter now comes before me to determine two questions,
namely, whether I can condone the late filing, by employee, of his
review application or whether I should, in refusing condonation, if I
am that way inclined, strike the application to review off the roll with
costs and set aside the arbitrator’s award. The second question is
whether the arbitrator’s decision to uphold the employee’s dismissal
is reviewable and must be set aside, with costs.
[5] It seems to me that the condonation application, if it succeeds, will
be dispositive of the matter, and I would not therefore have to deal
with the arguments on the “merits”, so to speak. The matter was
not, however, strongly argued on that basis by the parties. As it was,
the best part of argument was spent on the substantive issues and
only a fraction of the time was devoted to the condonation
application. I will, however, in this judgement reverse the order and
deal with the condonation application first. Before I do so, the
judgement, I think, would benefit from a summary of the facts by way
of a background to the dispute.
BACKGROUND FACTS
[6] The employee is a convicted thief, having been accused and
convicted of theft relating to a sum of R300, 00 in or about 1993. He
alleges that an appeal against his conviction is pending and
accordingly sub iudice . I pause here to observe that his appeal has
been pending for a long time.
In January 1997 the employee applied to become a deputy Principal
of the Meyerton Primary School. On 16 October 1997 he applied for
the post of principal of the same school. It appears that on both
occasions the employee attached a curriculum vitae in which he
stated that he had no previous criminal conviction. One De Beer,
member of the School Governing Body (SGB), who apparently knew
of the employee’s previous conviction for theft, complained that the
employee had failed to disclose the fact of his criminal conviction
status. That prompted the employer to conduct its own investigations
which culminated in charges against the employee for knowingly
making a false or incorrect statement.
[7] In the disciplinary proceedings that were conducted by the employer,
the officer presiding in those proceedings found the employee guilty
of misconduct and recommended that the employee must be given a
final warning. This recommendation was made to the employer,
whose chief executive officer is the Superintendent General (SG).
The SG, in the exercise of what he perceived to be his powers and
discretion, did not follow the sanction recommended to him by the
disciplinary tribunal’s presiding officer. Instead, he imposed a penalty
of dismissal. There was an appeal against this sanction. The appeal
failed.
[8] The employee duly caused the matter to be arbitrated. Right at the
beginning, of the arbitration, the employer’s representative, Mr.
Jonker who also represented the employee before me,
unequivocally waived any challenge to the employee’s dismissal on
the basis that there had been a procedural defect in the dismissal of
the employee. He stated, that they were not “going to challenge
the procedural fairness of the dismissal ”. I mention this as part of
the background facts because the bulk of Mr. Jonker’s argument
before me was devoted to challenging the dismissal on the basis of
its alleged procedural unfairness. To that I will return shortly.
CONDONATION
[9] The employee is well entitled to seek condonation of his late filing of
the review application by resorting to the provisions of S158 (1) (f) of
the Act. This Court and the Labour Appeal Court have held that an
applicant, in order for condonation to be granted must show “good
cause”. Whether good cause has been shown, both this Court and
the one above, have followed the speech by Holmes JA in Melane v
Santam Insurance Co. Ltd 1962 (4) SA 531 (A) at 532 C F, to the
following effect:
“In deciding whether sufficient cause has been shown, the
basic principle is that the Court has a discretion, to be
exercised judicially upon a consideration of all the facts, and in
essence it is a matter of fairness to both sides. Among the facts
usually relevant are the degree of lateness, the explanation
thereof, the prospects of success, and the importance of the
case. Ordinarily these facts are interrelated: they are not
individually decisive, for that would be a piecemeal approach
incompatible with a true discretion, save of course that if there
are no prospects of success there would be no point in granting
condonation. Any attempt to formulate a rule of thumb would
only serve to harden the arteries of what should be a flexible
discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good explanation may help to
compensate for prospects of success which are not strong. Or
the importance of the issue and strong prospects of success
may tend to compensate for a long delay. And the respondent’s
interest in finality must not be overlooked. I would add that
discursiveness should be discouraged in canvassing the
prospects of success in the affidavits ”.
See also Rustenberg Transitional Local Council v Siele No &
Others (1999) 20 ILJ 2935 (LC).
[10] Condonation will not be granted if the applicant has shown wilful or
reckless disregard of the requirements of the rules of court or of a
statute.
Smith No v Brummer No 1954 (3) SA 352 (O), Burton v Barlow
Rand Ltd 1978 (4) SA 794 (T) .
If the applicant either does not explain default or does so
unsatisfactorily, condonation will not be granted.
Tommy v Maharaj 1974 (1) SA 178 (N); Ferreira v Ntshingila 1990
(4) SA 271 (A) . Further, as soon as a party realises that it has not
complied with a Rule of the Court or a Statutory period, it must apply
for condonation without delay. Commissioner for Inland Revenue
v Burger 1956 (4) SA 446 (A); Meintjies v H D Combrinck (Edms)
Bpk 1961 (1) SA 262 (A).
[11] In heads of argument prepared by Mr. Snider, there is a bald
allegation that the employee in its affidavit, has dealt with the issues
raised in Melane’s case “properly and satisfactorily” . The heads
go on to conclude that the “degree of lateness is not significant
enough to affect the employer’s interest in finalising the matter ”.
Again, without stating what the facts are, the bold allegation is made
that a satisfactory explanation has been provided, that it is clear from
the affidavit that the employee took all necessary steps timeously to
prosecute the review and that the reason for the delay was due to
administrative problems with the attorneys’ firm which was dealing
with the review. Again without stating how and why, the heads
conclude that the employee has good prospects of success, that It is
an important matter to him, that he has lost his employment and that
he has had his honesty and bona fide impugned.
[12] Although Mr. Jonker did not adopt this argument, he did not
unfortunately take the argument further. Nor could he have done so.
Not only has the employee failed to provide an explanation that
negatives wilfulness or reckless disregard, when it endeavors to give
an explanation, it gives one that strengthens an inference of wilful
disregard. The allegation that his attorney had given the application
to his administrative staff and therefore thought it would be served on
the same day by facsimile is not supported by any affidavit from the
“administrative staff” . No one of the administrative staff “they”
files a confirmatory affidavit and Mr. Jonker’s “confirmatory
affidavit”, in my respectful opinion, does not take the matter any
further.
[13] Even though the degree of lateness is a matter of a mere 14 days
relatively short, it seems to me that that in and of itself does not
dispose of the requirement that the applicant must show good cause
that there was no wilful or reckless disregard of the rules of Court or
of the Statute.
In any event, the employee took almost two years to actually file a
condonation application. His attorneys had been advised in July
2000 by the employer’s attorney that the review application was out
of time and that condonation was necessary. Instead of applying
there and then, almost two months later they advised the employers’
lawyers that condonation was unnecessary.
[14] There is, in the end, no explanation, or at best, no satisfactory
explanation why a whole host of things raised by Mr. Hulley, for the
Respondents, were not done why, for example, in its explanation of
its default, the employee does not state when it first attempted to
transmit its review application by facsimile, why it does not attach the
failed fax transmission sheets as proof of its failed attempts, why the
application was not transmitted to this Court by some other means,
and so on. The picture gets compounded by the unexplained
contradiction on oath in the affidavits where, in one instance, it is
deposed that the papers appear to have been served by facsimile,
and on the other hand papers were to be served by registered post.
[15] When, in the end, by the 19 th September 2000, the employee’s
lawyers established that the application was sent by registered post,
it ought to have been clear, at least by that date, that it would have
been filed out of time, and that would have been the time to apply for
condonation of the late filing of the review application.
It is unnecessary for me to consider whether the employee has made
out a case for condonation on the basis of prospects of success. I
have alluded above that the employee had pertinently abandoned,
before the arbitration, an attack of the dismissal on procedural
grounds. The issue before the arbitrator until shortly before
conclusion, was whether the dismissal had been substantively fair or
not. In so far as it is in that regard that I would have to consider
whether to grant condonation because the employee’s prospects of
success on review are good, I am satisfied that there are no
prospects of success and that condonation should on that ground as
well, be refused. I accordingly hold that the application for
condonation has no merits and is hereby refused.
[16] THE MERITS
Even if I am wrong in refusing condonation, and to the extent that
there was full argument of the review application, I am not persuaded
that the employee has made out a case for review on any of the
grounds advanced by it.
Most of the facts have already been canvassed above. The essence
of the employee’s case is that he was entitled to nondisclosure of
the criminal offence because his appeal was still pending and that he
had assumed that the employer knew of his criminal conviction.
[17] After the employer had, through the SG, dismissed the employee,
on 23 March 1999, the employee was given an opportunity to
appeal. His appeal was dismissed on 17 November 1999. The
employee then launched an unfair dismissal proceedings, in which
he expressly abandoned the issue of procedural fairness and
indicated that its challenge was only against the substantive fairness
of the dismissal. The arbitrator, in the award,, held that there was a
fair cause to make a finding of misconduct and accordingly upheld
the decision to dismiss the employee.
ARGUMENTS IN THIS COURT
[18] Before me, Mr. Jonker passionately submitted and this argument
was a radical departure from the Heads of Argument filed on behalf
of the employee that the imposition of the dismissal sanction by the
employer on the employee, when the tribunal presiding officer had
recommended a written final warning was a gross irregularity. It
exposed the employee to “double jeopardy” . What made the
irregularity more gross was that the employer substituted the
tribunal’s recommended sanction without calling further evidence in
mitigation or aggravation, and giving the employee an opportunity to
cross examine those witnesses that should have been called. The
SG, it was argued, should have heard evidence of the Education
MEC, Mr Ignatius Jacobs.
[19] Mr Jonker further submitted that the only waiver with regard to
procedural fairness was at the inquiry. He submitted that at the
arbitration, it had been agreed that the employee would have an
opportunity to address the propriety or otherwise of the dismissal
sanction, or, as I understood the argument, the fairness or otherwise
of the procedure adopted. It was further argued by Mr Jonker that the
arbitrator herself grossly misconducted herself insofar as she upheld
the dismissal sanction without hearing evidence on mitigating or
aggravation factors. Without hearing that evidence, Mr Jonker
argued, particularly on whether the trust relationship between the
employee and the employer (particularly the SGB) had been broken,
the arbitrator deprived herself of an opportunity to apply her own
mind as to the propriety or otherwise of the dismissal sanction.
[20] I was referred by Mr Jonker to Dr J Grogan’s book: Workplace Law,
6th Edition, Juta, 2001 on page 168 ff:s.v. Double Jeopardy . The
relevant sections read as follows:
“If employees have been acquitted at a disciplinary inquiry, or
the presiding officer has imposed a penalty less severe than
dismissal, they cannot generally be subjected to a second
inquiry of the same offence. Nor may the management ignore
the decision of the chairman of a properly constituted
disciplinary hearing and substitute its own decision. A
dismissal in such circumstances would invariably be unfair.”
Later on, after the learned author has dealt with the exceptions to
this “rule”, he ends the section with the following paragraph, heavily
relied upon by Mr Jonker for his submissions:
“A penalty more severe then that imposed by the presiding
official of the disciplinary enquiry may not be imposed by an
appeal tribunal.”
The learned author refers to the following authorities for his
averments.
Kohidh v Beier Wool (Pty) Ltd (1997) 18 ILJ 1104 (CCMA); Botha
v Gengold Ltd [1996] 4 BLLR 441 (IC)
Bhengu v Union Cooperative Ltd (1990) 12ILJ 117 (IC)
[21] It is worthy of note that in the footnote to the proposition that a more
severe penalty than that of the presiding officer of the disciplinary
inquiry may not be imposed by an appeal tribunal, Grogan cites, with
approval, the Kohidh v Beier Wool case. In the case, there is a
suggestion that a more severe penalty can be imposed where the
employee appeals, something that is in accordance with the practice
in the criminal courts. Grogan suggests, in the footnote, that that is
probably the correct approach in labour matters. After all, he argues,
the chairman of the appeal must apply his or her mind independently
to the facts and the appropriateness of the penalty.
[22] Mr Jonker further argued that the provisions of the Appeal
Procedures for Educators, as provided for in GNR 1569 dated 7
August 1998, S. 97B were not taken into account. As far as I
understand Mr Jonker’s submission in this regard, the argument is
that this section provides for further information or evidence relevant
to the appeal to be obtained by the appeal board within a specified
time, which information shall be considered by the board, together
with all facts, evidence, documents and the record of proceedings.
To that extent, the failure by the Appeal Board in this case to call for
further information or evidence with regard to the dismissal sanction
amounts to gross irregularity that led to a failure of justice.
[23] Mr Hulley, as I have already indicated, argued that the “double
jeopardy” argument was never canvassed in the arbitration and was
being raised in argument for the first time when it was neither part of
the employee’s case on affidavit nor the substance of the Heads of
Arguments filed. Further, Mr Hulley argued, procedural issues were
never canvassed in the arbitration. If anything, right from the start Mr
Jonker told the arbitrator that “ the only issue in dispute is the
substantive fairness or not of the dismissal”. The arbitrator had
asked, later on, as the proceedings were about to commence:
“Commissioner: Let me just check in terms of this; you both
agree that the issue in dispute is the substantive aspect of a
dismissal? I just want to check? .........
Mr Jonker: The dispute is by the substantive fairness of the
dismissal (sic). We are not challenging the procedural fairness
of the inquiry. (Inaudible) substantive issue, that is clear
enough.”
[24] Mr Hulley therefore argued that the appeal procedure argument, and
the “double jeopardy” argument should have been canvassed at
the arbitration proceedings, where they were expressly abandoned.
If the employee was keen on a relief by the arbitrator as to whether
procedural fairness was to be its case, it should have stopped the
proceedings and if a ruling was in its favour, the matter would have
had to be postponed, consideration of prejudice and costs taken into
account in that regard.
[25] Further, there was no challenge in the affidavits, by the employee, to
the accusation that it misinterpreted the true state of affairs with
regard to its criminal record. It was not enough for the employee to
merely say that it failed to disclose certain facts already within “ the
common knowledge (sic) of the Third Respondent”. It was even
more presumptuous for the employee to allege that the employee
had been duly appointed “whilst the Respondent had full
knowledge of the history of the applicant” .
It was, therefore, not proper for the employee’s lawyer to seek to rely
on an argument that is premised on an aspect that was
unequivocally abandoned and which was sought to be reintroduced
in the arbitration proceedings only in the closing arguments, after the
employer’s evidence had been led, which evidence had not been
challenged to the effect that the employer’s procedure was or was
not fair and proper.
[26] Whilst I have not found in the record anything that seems to reflect
whether Mr Jonker had dealt with the “double jeopardy” argument
in so many words before the arbitrator, I note that the arbitrator has
the following to say:
“There is a deliberate attempt by Mr Wium [the employee] to
confuse this process (arbitration) by testifying that he is
punished twice. Mr Wium is clearly not charged for theft as was
convicted by the court of law (sic) The Dept has charged him for
misleading the Dept in his application for a Deputy Principal’s
position.” [ on p. 6 of the award] ”.
It appears that if the “double jeopardy ” argument was raised at the
closing arguments stage, the arbitrator gave it some consideration .
[27] In any event, Mr Hulley strongly submitted that the only issues before
the arbitrator were whether the employee was guilty of the charges
against him and, if so, whether dismissal was a fair sanction in the
circumstances. There could be no question of his being guilty of
gross dishonesty where the employee submitted two curricula vitae
which were false, a charge which was not being challenged as much
as being explained on the basis that it was a mere non disclosure of
a fact peculiarly within the knowledge of the employer.
When once it was accepted that the employee was guilty of the
charge against him, the Court had to determine if dismissal was fair
in the circumstances. Was the arbitrator entitled to substitute her
decision on sanction for that of the employer, or could she interfere
only if she was of the view that the dismissal was so excessive as to
shock one’s senses?.
County Fair Foods (Pty)Limited v Commission for Conciliation
Mediation and Arbitration and other (1999) 20 ILJ, 1701 (LAC)
[28] Firstly, argued Mr Hulley, Mr Maseko, as Head of the Education
Department was not obliged to follow blindly recommendations made
by the disciplinary tribunal. To do that would be remissness on his
part as he had a duty to consider the appropriateness of a sanction
recommended to him in the light of the evidence available. Secondly
the disciplinary hearing had not imposed any sanction merely
recommended one and the authorities referred to by Mr Jonker
from Grogan’s Workplace Law, supra were therefore distinguishable
insofar as they refer to the likelihood of a reversal of a decision that
substitutes for a sanction imposed by a disciplinary tribunal. Insofar
as it was the arbitrator who was faulted for upholding the employer’s
sanction, without more, as was argued by Mr Jonker, Mr Hulley
submitted it was not the arbitrator’s function to substitute a sanction
imposed by an employer. (See County Fair Foods case supra ).
[29] Insofar as the employee showed no remorse, and indeed took an
attitude that he was “entitled’ to what he regarded as a mere “non
disclosure” of a fact peculiarly within the employer’s knowledge, Mr
Hulley submitted that the employee, who was seeking reinstatement,
cannot hope to reestablish the trust which he had himself broken.
As had been stated by Conradie AJA in De Beers Consolidated
Mines Limited v Commission for Conciliation, Mediation and
Arbitration and others (2000) 21, ILJ, 1051 (LAC),
“...[I]t would ..... be difficult for an employer to reemploy
an employee who has shown no remorse ... In the absence of a
recommitment to the employer’s workplace values, an
employee cannot reestablish the trust which he himself has
broken. Where, as in this case, an employee over and above
having committed an act of dishonesty, falsely denies having
done so, an employer would, particularly where a high degree of
trust is reposed in an employee, be legitimately entitled to say
to itself that the risk of continuing to employ the offender is
unacceptably great” (at 1059 C D)
CONCLUSION
[30] In this case, although strong argument was raised on behalf of the
employee that there was evidence led by one member of the SGB
that the school would have no problem with the employee, the critical
issue is whether, because of that evidence, the arbitrator should not
have upheld the dismissal penalty. More importantly, can I interfere?
I agree with the authorities that I can only interfere if I am satisfied
that the award was not justifiable.
Carephone (Pty)Ltd v Marcus NO and others (1998)19, ILJ
1425(LAC); County Fair Foods, (supra) at 1706.
[31] I am not persuaded that the arbitrator misdirected herself in any of
the ways argued by Mr Jonker. I am satisfied that she applied her
mind to all the issues placed before her for consideration, that she
expressed herself explicitly on issues she considered irrelevant, and
that her conclusions are rationally connected to the evidence and
reasons given for them.
In the event, I order as follows:
1. The application for condonation of the late filing of the review application is
dismissed with costs.
2. The application to review the arbitration award of the first respondent is dismissed
with costs.
__________________
D.B. NTSEBEZA AJ
APPEARANCE
: Mr Jonker
: Jonker Smit & Bergh Inc
: Mr G.I Hulley
: State Attorney
: 10 July 2002
: 13 August 2002