IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
NOT REPORTABLE
CASE NO: D335/02
DATE HEARD: 2002/10/21
DATE DELIVERED:
2002/10/21
In the matter between:
SOUTHERN SUN HOTEL INTERESTS
(PTY)LTD T/A BREAKERS RESORT Applicant
and
COMMISSIONER RAJENDRA SHANKER First
Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second
Respondent
JOHNNY BASDEO MANGAROO Third
Respondent
JUDGMENT DELIVERED BY
THE HONOURABLE MS JUSTICE PILLAY
ON 21 OCTOBER 2002
ON BEHALF OF APPLICANT MR M
ALEXANDER
DENEYS REITZ INC.
ON BEHALF OF RESPONDENT MR S V REDDY
ATTORNEY JAY
REDDY
TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD DURBAN
JUDGMENT
PILLAY J
[1] This is an application to review and set aside the ruling of the first
respondent Commissioner, who granted condonation for the late filing
of the third respondent's referral for conciliation.
[2] The first difficulty I have with the application is that I have only a transcript
of the notes of the Commissioner to proceed with to determine what
submissions were made at the hearing before the Commission. No
mechanical recording was kept of the proceedings.
[3] The second difficulty I have is that the Commissioner's ruling does not
throw any better light on the matter. It is a "cut and paste" decision
similar to a number of this Commissioner's previous rulings in other
matters. I have raised this point previously and I repeat my
dissatisfaction with Commissioners making awards which do not
manifest reasons.
[4] The third difficulty arises because the third respondent has not spelt out
the grounds on which it resists this application, such grounds being
apparently based on evidence of what transpired at the hearing before
the Commissioner. It is obviously inappropriate for the parties to tender
evidence from the Bar about what happened at the hearing before the
Commissioner.
[5] However, notwithstanding these difficulties, the record of the
condonation hearing is sufficient for me to determine the
matter finally.
[6] The material facts are that the applicant made the first application for
condonation on the 6th August 2001. That application was ruled to be
defective on the 13th September 2001 as it had not been signed by the
applicant.
[7] The employee alleges that he only became aware of the ruling on the first
application for condonation on or about 17th October 2001 and
relodged his application on the 24th October 2001. It is not clear from
the employee's affidavit whether he became aware of the ruling on the
first application on the day it was made, but was advised in writing of it
only on the 17th October, or whether he became aware of the ruling
when he received the written communication. Nevertheless, I give the
employee the benefit of the doubt on that issue and accept, for the
purposes of this case, that he became aware on the 17th October 2001.
[8] The application for condonation dismally lacked material information. The
degree of lateness was not filled in on the prescribed form. The reason
for the lateness was given as:
"I was dismissed on 8 June 2001. I was informed of the internal appeal
procedure of the company. My rights to declare a dispute within 30 days were
not told to me by the company. As of date I have not received outcome of
appeal. Company is deliberately delaying the process. As per disciplinary code
there are 1 st and 2 nd appeal. Still awaiting outcome of second appeal."
[9] The employee did not explain how and when he became aware of his
rights to declare a dispute. He obviously elected to proceed with a
referral before the second appeal had been finalised or before he had
been informed of the decision of the second appeal.
[10] He describes his prospects of success as follows:
"Dismissal is both procedurally and substantively unfair. Presiding officer
impartial. Case was prejudged. Substantively company failed to show good
cause for dismissal and failed to prove the allegations."
[11] And the prejudice that he suffered, he said:
"For the above reasons as well as I was not informed of my rights at the time of
my dismissal. Company deliberately stalled the whole process of appealing."
[12] I accept that the form provides for a brief explanation on the specific
headings that go to determining whether condonation should be
granted. However, once an answering affidavit was filed then the
employee was obliged to provide a detailed response and an
explanation to the allegations made in the answering affidavit.
[13] There was no reply to the answering affidavit. Material issues that remain
unanswered by the employee include details of the allegations of
misconduct against him; the fact that he did not have a reasonable
explanation for the delay, the total delay according to the employer
being 114 days; the prospects of success and the prejudice that he
would suffer if the application for condonation was not granted. More
specifically, he did not disclose that he had found employment since his
dismissal.
[14] In the absence of a reply, the employer's version, in so far as it remained
uncontested by the employee, must prevail.
[15] On that version, the Commissioner ought not to have granted condonation.
The material allegations are to be found at paragraph 25.4.1 to 25.4.3
of the answering affidavit at page 23 of the bundle of the record.
[16] The Commissioner found that the degree of lateness of 109 days was
significant but accepted that the explanation therefor was reasonable.
For the purposes of this case, I will give the Commissioner the benefit
of the doubt in finding that the explanation for the delay was reasonable
in so far as the date on which the employee became aware of the first
ruling was established as the 17th October 2001 and not the 13th
September 2001 when the ruling was made.
[17] However, his finding that the degree of fault on the employee's part in
submitting the referral late is "low" is unsubstantiated. The reason for
the filing of the second application was because the first application had
not been signed. The defect in that application was material because it
is quite clear that the applicant had to sign the application for
condonation.
[18] Even in this regard I will yield to the Commissioner’s finding and assume
that this was a human error on the part of the employee that should be
condoned.
[19] He sets out, however, no grounds for finding that the prejudice was not
significantly different and the prospects of success remain in dispute.
He did not deal with the fact that the applicant had already found
alternative employment. The fact that the employer alleged, without
any opposition from the employee, that there was no longer a position
for him in the company or that the employer would be inconvenienced if
it were to be put to its defence of the dismissal.
[20] The most significant defect in the ruling is that the absence of prospects of
success were spelt out at paragraphs 25.4.1 to 25.4.3 of the answering
affidavit. In the absence of an explanation by way of a reply on affidavit
from the employee, the Commissioner should have found in favour of
the employer. The Commissioner made no reference to the fact that
there was no replying affidavit filed by the employee.
[21] In those circumstances, the ruling must be set aside.
[22] The order that I make is as follows:
(a) I grant an order in terms of paragraphs 1, 2 and 3 of the notice of
motion.
(b) I direct the Registrar to bring to the attention of the Senior Convening
Commissioner of the CCMA, KwaZuluNatal and to the second
respondent the criticisms I have raised in this matter about the second
respondent's failure to provide an adequate ruling with reasons.
________________
JUDGE D PILLAY