Sneller Verbatim/MLS
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR 761/02
2002-11-20
In the matter between
T NCUBE Applicant
and
CCMA Respondent
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J U D G M E N T
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LANDMAN J : This is an application which Mr Ncube has
brought to review and set aside a condonation ruling which
was handed by a commissioner of the CCMA on 28 December
2001.
It appears that Mr Ncube was dismissed by his employer,
Mr Samson. He has filled in his application form indicating
that he does not know the reason why he was dismissed.
He has also set out in his application form for
condonation the fact that he presented himself timeously at
the CCMA offices but that its computer was down and he was
asked to come back. He went back within a week and filed his
referral of his dispute against his employer.
The CCMA decided that his referral was late and a
commissioner was appointed to consider the matter. The
commissioner made the following determination and she did
so although Mr Samson, the employer, had not made any
representations.
She says:
"I have considered the applicants's submissions and I have
decided to refuse condonation in this matter for the following
reasons:
1. The degree of delay in this matter is a substantial one.
2. The explanation that the applicant had advanced is not
acceptable, an explanation for the delay of some 30 days while
accepted that the CCMA computers may have been off line
when she (sic) returned her forms on 25 September 2001,
however, she could have handed her forms in. Moreover, she
has stated that she filled in the CCMA forms on 25 September
but she has not accounted this as to why it took her until 25
September 2001 before she approached the CCMA.
The applicant did not provide any details about the
circumstances of her dismissal. The statement no hearing
held is vague. This submission has weakened the applicant's
chances of showing good cause as to why the dispute should
be condoned considerably.
I have also consider the issue of prejudice and I accept that if
condonation were refused the applicant may be prejudiced.
However, in this case these does not outweigh the substantial
delay and the poor explanation for the delay.
In this matter the applicant has not shown good cause as to
why the dispute should be condoned. Condonation is
refused."
In my opinion the condonation ruling is reviewable.
Firstly, as it is accepted that the CCMA contributed to the late
referral of the dispute insofar as its computers were down and
it did not accept the documents at that stage.
What the precise circumstances are is not known but
whatever they were, they were within the knowledge of the
CCMA and they should have been placed before the
commissioner in some detail.
In addition it is the applicant's case that he does not
know why he was dismissed. The Act provides that if an
employee has been dismissed and does not know the reason
for the dismissal, the employee may refer a dispute about this
dismissal to the CCMA. Once this is accepted then it must
follow that an employee whose condonation for condonation is
out of time, and says that he or she does not know what the
reason is cannot be expected to provide a reason and it
follows in my opinion that the commissioner overlooked this
and that this constitutes a gross irregularity.
In the circumstances therefore the commissioner's ruling
dated 28 December 2001 is reviewed and set aside and the
CCMA is ordered to convene an arbitration hearing within 30
days of today.
Mr Ncube is to obtain a copy of this award to take it to
the CCMA.