IN THE LABOUR COURT OF SOUTH AFRICA
(HELD IN JOHANNESBURG)
CASE NO: JR 1629/02
In the matter between
W.M Buthelezi
Applicant
and
METAL & ENGINEERING INDUSTRIES
BARGAINING COUNCIL
1st
Respondent
ADV K. GUNASE
2nd
Respondent
TRIDENT STEEL (PTY) LTD
3rd
Respondent
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JUDGMENT
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PILLAY, A.J:
This is an application for review of an award by the Commissioner in terms
of Section 191 of the Labour Relations Act. It was brought 188 days outside
the prescribed time limit. The application for condonation of the late referral
was refused. It is this decision which is now sought to be reviewed.
In considering the latter application, it is necessary to consider (a) the length
of delay, (b) the reason for the delay, and (c) the prospects of success in the
main application.
The applicant was employed by the Respondent on a contractual basis, from
time to time. It seems that because of the frequency of shortterm
employment contracts, he felt that he would eventually be employed on a
permanent basis. The last period he worked for the Respondent was from
September 2001 to December 2001. In the meantime he had raised the
prospects of being permanently employed with the representatives of the
Respondent and was told that the Respondents policy was to employ people
on contract first and thereafter on a permanent basis.
The applicant alleges that people who were first employed on a contract
after him were permanently employed by the Respondent before him. What
is more, he was not reemployed in January 2001 as he expected to be. This
seems to have to have been the cause of his dissatisfaction.
He referred the matter to the Metal and Engineering Industries Bargaining
Council (Council) when he was not reemployed by the Respondent.
His primary reason for his late referral was that he was that he thought that
he would be offered a permanent position by the Respondent during this
period, subject to a vacancy becoming available.
However he was appraised of the situation as far back as February 2002 and
only referred the matter to the Council in July 2002 after two other people
were permanently employed.
In argument on review, he also added that as a layman he was at the time
unaware of the time limits within which he should have referred the dispute
to the Council.
It is trite that it is incumbent on an aggrieved party to take urgent steps to
promote and protect his or her interest in this respect.
His delay was clearly occasioned by his attempt to obtain employment with
the Respondent during the period of delay. This conduct seems to suggest
that he knew what the position was and could not have expected to have any
right to be employed by the Respondent in 2002. In view of my decision
herein, I do not find it necessary to decide on whether he ought to have been
employed or not except to say that his prospects of success in that regard, are
rather remote.
He did not provide the Commissioner with any coherent information as to
why he did not refer the issue to the Council much earlier. He did nothing in
this period to activate the legal procedures when he was appraised of the
situation. He still tried to obtain work from the Respondent. His conduct in
this regard raises doubt as to whether he had any intention of lodging dispute
proceedings or that he felt aggrieved.
The lack of a reasonable explanation for the long delay makes it difficult to
come to his assistance.
I do not think that the Commissioner committed any irregularities in coming
to her conclusion.
The delay was far too long and it remains void of any reasonable
explanation. The application for condonation must therefore fail.
In the result, the application for condonation is refused.
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R PILLAY
ACTING JUDGE OF THE LABOUR COURT
FOR THE APPLICANT : In Person
FOR THE RESPONDENT : Mr D. Woodhouse
Perrott, Van Niekerk & Woodhouse
DATE OF HEARING : 16 October 2003
DATE OF JUDGMENT : 28 November 2003