Sneller Verbatim/HVR
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR1549/02
Date heard: 27/03/03
Date delivered: 27/03/03
In the matter between
DOS SANTOS GIL, ALFREDO JULIO
MATOS
Applicant
and
KHUENE NAGEL SA (PTY) LTD First Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
SICELO MTHETHWA N.O. Third Respondent
__________________________________________________________
J U D G M E N T
___________________________________________________________
PILLAY J: This is an application to review and set aside the ruling of
the third respondent commissioner who refused to condone the late
referral for conciliation.
The applicant alleged that he was dismissed on 30 April 2002.
The referral to the CCMA was received on 5 July 2002. That, the
commissioner calculated to be 35 days outside of the stipulated 30
day time limit for such referrals.
The commissioner found that there was insufficient information
before him to make a finding on the prospects of success. The crux
of the commissioner's reasons for refusing the condonation is as
follows:
"The applicant has failed to give a proper explanation regarding the
delay in referring the matter immediately after his dismissal. The
Labour Appeal Court has held that where the reasons for the delay are
unacceptable, this in itself would justify the refusal to grant
condonation...."
The explanation for the delay given to the commissioner in the
application for condonation was that the applicant had engaged the
first respondent in settlement discussions. In the referral form
under the heading “Reasons for Lateness” the applicant stated as
follows:
"The reason/s that applicant referred the matter late is applicant was
attempting to negotiate settlement with the respondent and put proceedings
proceedings on pending. "
The applicant gave no further details as to when such
communications with the respondent took place. No dates were
provided in that regard in the referral.
In this application for review it appears that the applicant made no
attempt to contact the respondent until about 9 May 2002.
However, that information was not part of the application for
condonation before the Commissioner.
In the absence of sufficient details relating to the settlement the
commissioner was entitled to come to the conclusion that he did.
The commissioner further found that in a letter dated 29 May
addressed to the director of the first respondent the applicant
indicated for the first time that he was prepared to settle the
dispute. The commissioner had no information that there were
negotiations before 29 May.
On the information before the commissioner it appears that the
applicant only took steps to challenge his dismissal on 29 May 2002.
The commissioner appears to have rejected the explanation on the
further grounds submitted by the first respondent namely, that the
applicant had not engaged it in settlement negotiations and that the
applicant was not its employee.
In reviewing his ruling the court is required to consider what
information was before the commissioner at the time. It is not based
on information that the court now has.
The affidavit launching the application for condonation does not
make out a full case. The applicant states in this review that he was
not aware of the first respondent's attitude as he had not received
the letter dated 3 June 2002, which appears at page 40 of the
bundle. That letter informed the applicant's representative namely,
M L Consultants that the first respondent denied that the applicant
was employed by it, that it dismissed the applicant and that the
applicant was owed any money.
The applicant's representative replied to that letter on
10 June 2002. When the applicant applied for condonation on 4 July
2002 he made no reference to that letter. Nor did he provide any
explanation or response to the first respondent’s stance.
The probability of the applicant not being aware of the first
respondent’s denial of the existence of an employment relationship
and that he was dismissed are remote. If I were to accept the
submission made on his behalf that he was not so aware then I must
submission made on his behalf that he was not so aware then I must
also accept that the representative put his case to the first
respondent without having consulted the applicant. That is hardly
likely.
However, that is not in itself destructive of the applicant's case. The
applicant failed to make out a full case which set out clearly and
convincingly that he was entitled to condonation.
It is submitted in this application for review that he filed a reply to
the first respondent’s answering affidavit in the condonation
application. Therein he made out a full case. Even though the
reply was delivered three days late, the commissioner ought not to
have given her ruling without having had regard to the reply. So it
was submitted.
The commissioner made his ruling on the same day on which the
reply was due. There is no evidence as to time when he made his
ruling, i.e. whether it was made after hours by which stage the time
for filing a reply might have expired or whether it was made before
that time. In any event, the fact is that the reply was only filed
three days later.
Consequently the court cannot come to the conclusion that the
making of the ruling on the day on which the replying affidavit was
due was an irregularity.
The second submission in that regard was that the applicant ought
to have been given an opportunity to seek condonation for the late
filing of his reply.
The commissioner was perfectly entitled to make a ruling once the
time limit for the reply had expired.
The commissioner would obviously have been functus officio
thereafter and would not have been able to consider any application
to condone the late reply, even if one had been made.
The third submission in that regard was that the new rules of
the CCMA which allow the filing of a reply within seven days instead
of five days should have applied.
There is no basis in law on which that submission can be sustained.
If the commissioner applied such time limits as he did according to
the rule then in force then the award cannot be reviewed.
Consequently, the commissioner was not obliged to take into
account material in the replying affidavit.
Counsel for the applicant urged me to hold that the commissioner
ought to have called for further evidence.
The commissioner had sufficient facts to make a decision. The
applicant had a duty to make out a full case in its founding affidavit
not in the reply. If he failed to do so, the Commissioner cannot be
faulted.
In this case the applicant also had the opportunity to seek legal and
expert advice before referring the dispute to the CCMA. In all the
circumstances, the application for review is dismissed with costs.
---oOo---
________________
JUDGE D PILLAY
APPEARANCES:
FOR THE APPLICANT : ADVOCATE W. DAVEL
INSTRUCTED BY : MARQUES ATTORNEYS
FOR THE RESPONDENT: DION MASHER
INSTRUCTED BY : BELL DEWAR AND HALL