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[2026] ZALCCT 132
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Hoflinger v Commission for Conciliation, Mediation and Arbitration and Other (C298/2023) [2026] ZALCCT 132 (12 August 2026)
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IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NO:
C298/2023
In
the matter between:
FRANZ
HOFLINGER
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
COMMISSIONER
RICHARD HEATH N.O.
Second Respondent
BRITISH
AMERICAN TOBACCO SA (PTY) LTD
Third Respondent
Date
of hearing: 5 and 6 November 2025
Date
of delivery: 12 August 2026
Summary
:
Late referral of unfair labour practice dispute to the CCMA –
condonation refused by CCMA Commissioner – no proper
explanation for inordinate delay given by Applicant – decision
refusing condonation reasonable and not reviewable.
JUDGMENT
A
OOSTHUIZEN AJ
1
The Applicant in this
matter was previously employed by the Third Respondent. His
employment was terminated on 31 October
2021, pursuant to a Voluntary
Termination Agreement concluded between the Applicant and the Third
Respondent in September 2021
(“
the
Termination Agreement
”). Up until
31 October 2021 (“
the Termination
Date
”), Applicant received his salary,
fringe benefits and certain other incentive and similar bonuses.
2
In March 2023,
Applicant referred an unfair labour practice to the CCMA. The
details of the dispute are set out in the prescribed
Form 7.11.
In the Summary of Facts of the dispute which forms part of this
document, Applicant alleges as follows: “
I
was targeted, victimised, intimidated, bullied and ridiculed in front
of peers when Employer went on agenda to exit Employee in
my team.
Conduct towards me was so bad I became extremely afraid out of losing
my job so I went for VSP out of fear
”.
The relief sought by the Applicant, in relation to this alleged
unfair labour practice, was “
compensation
for being bullied which forced me to take a VSP although I was not
ready to leave the company at that point in my career
”.
3
The referral was
approximately 19 months and 19 days out of time. It accordingly
became necessary to apply for condonation,
which the Applicant did.
Condonation was refused by the Second Respondent (“
the
Commissioner
”). Applicant seeks
to review that refusal.
4
It is well established
that a tribunal, when granting or refusing condonation, exercises a
discretion which is to be exercised judiciously.
The facts
relevant to the exercise of that discretion are the degree of
lateness, the explanation advanced by the party seeking
condonation,
the prospects of success and the importance of the case. These
factors are not individually decisive, and the
weight to be accorded
to each of them depends on all the relevant circumstances (
Melane
v Santam Insurance Co Ltd
1962 (4) SA
531
(AD)
at
532C-E
).
5
On appeal, the
exercise of a discretion by a tribunal of first instance will only be
overturned if it can be shown that the discretion
was exercised
capriciously or in an arbitrary fashion. This being a review,
the test is even more stringent. The Applicant
has to establish
that the decision made by the Commissioner in the review before me
was unreasonable to the extent that no reasonable
commissioner could,
on the relevant facts and material, have arrived at such a decision.
6
As pointed out in the
award of the Commissioner, the degree of lateness was considerable.
Section 191(1)(b)(ii) requires an
unfair labour practice dispute to
be referred within ninety of the date of the act or omission which
allegedly constitutes the
unfair labour practice or, a later date
within ninety days of the date on which the employee became aware of
the act or omission.
The unfair labour practice alleged by the
Applicant consists of bullying and harassment, and it can hardly be
contended that the
Applicant would not have been aware of these at
the time that they were perpetrated. That would have been
before the conclusion
of the Termination Agreement in September
2021. The delay in referring the dispute to the CCMA is
therefore an inordinately
lengthy one.
7
In a condonation
application, a party is required to provide a reasonable,
satisfactory and sufficiently detailed explanation for
the delay
(
Chetty v Baker McKenzie
(2022) 3 ILJ 1599 (LAC)
at
paras
8 – 10
). The degree of detail
required of a party seeking to explain a delay was considered in
Uitenhage Transitional Local Council v SA
Revenue Services
2004 (1) SA 292
(SCA)
at
para 6
, where the
Court said the following:
“…
condonation
is not to be had merely for the asking; a full, detailed and accurate
account of the causes of the delay and their effects
must be
furnished so as to enable the Court to understand clearly the reasons
and to assess the responsibility. It must be obvious
that if the
non-compliance is time-related then the date, duration and extent of
any obstacle on which reliance is placed must
be spelled out.
”
8
The Commissioner found
that the Applicant had failed to provide a persuasive explanation for
every period of the delay and that
there were long periods for which
no explanation was provided by the Applicant. The question is whether
this finding is so unreasonable
that it warrants this court’s
interference on review. In my view, the Commissioner’s
finding is reasonable and
in fact supported by the evidentiary
material before the Commissioner.
9
Factors requiring
emphasis are, firstly, that the Applicant was a senior managerial
employee of Third Respondent, and not some low
level and unskilled
employee. It is, to my mind, inconceivable that the Applicant
would not have known that steps could be
taken by a party who had
been coerced into signing an agreement or, alternatively, that the
Applicant would not at the very least
have sought advice into his
rights in respect of such agreement, concluded under duress.
One searches the papers in vain
for an objectively reasonable
explanation for his failure to take steps to resile from the
Agreement, soon after he had been forced
into concluding same.
The only remotely sensible explanation on the papers is that the
Applicant appears to have waited until
he had received payment of all
that was due to him under the Agreement, before commencing legal
steps in respect of his allegedly
being coerced into concluding the
Agreement. That kind of opportunistic manoeuvring cannot
constitute an acceptable explanation
for a delay and, furthermore,
the doctrine of election held the Applicant bound to the terms of the
Agreement in such a case.
10
There is some
ill-defined attempt by Applicant to argue that his involvement as a
potential witness in a case which a fellow employee
was bringing
against Third Respondent, arising out of the termination of that
fellow employee’s services, provides an explanation
for
Applicant’s delay in referring his own dispute to the CCMA.
The circumstances and fate of that fellow employee’s
legal
proceedings cannot excuse Applicant’s failure to timeously take
steps in respect of Applicant’s own dispute.
11
In any event,
Applicant attempts to explain away long periods of the delay with
cryptic and somewhat nonsensical references to Applicant’s
involvement in the dispute between his fellow employee and Third
Respondent. For example, the Applicant’s chronology
notes
that on 11 May 2022 he had a meeting with the fellow employee “
to
discuss the contradictions on the reason given by the business
”
and that he thereafter had consultations (he does not specify with
whom), apparently in relation to his giving evidence
in the fellow
employee’s CCMA arbitration. There is a period of
approximately two months during which he notes that
he continued
working “
on my witness statement
letters
”. Why the time spent by
him on working on his witness statement in respect of his fellow
employee’s dispute should
excuse him from timeously taking
steps in respect of his own dispute is nowhere explained.
12
According to the
Applicant’s chronology, on 7 September 2022 he had what he
describes as “
a full consultation
session with lawyers to get directions on the steps I can take
”.
Notwithstanding that “
full
consultation
”, he delayed for a further
six months before referring his dispute to the CCMA. There is
no cogent explanation in respect
of that six month delay.
13
There is a second leg
to Applicant’s condonation application, which relates to his
prospects of success. The Commissioner
found that such
prospects were poor. I am unable to fault that conclusion.
Applicant’s dispute referral form
indicates that he seeks
compensation because he was allegedly victimised, intimidated and
bullied into signing the Voluntary Severance
Package Agreement “
out
of fear
”. That complaint, to the
extent that it is cognisable, does not appear to fall within the
definition of the term “
unfair labour
practice
” in Section 186 of the LRA,
and it is difficult to understand on what basis, if any, the matter
could be deal with by the
CCMA as opposed to the High Court.
The CCMA is statutorily created. It has repeatedly been held,
most recently in
Prudential Authority v
Jaijai
[2025] ZAGPPHC 1148
,
that a body created by statute has no jurisdiction to determine
disputes not falling within the ambit of the powers vested in
such
statutory body. Furthermore, if the matter were to be referred
to the High Court, the Applicant would face the difficulty
that he
has not sought to resile from the Agreement, but seeks to claim
compensation, the nature whereof is not stipulated, as
a result of
allegedly being bullied or victimised. If the High Court were
to hear the matter, it could only award damages
in respect of
patrimonial loss and no details are given of any patrimonial loss
suffered by Applicant.
14
In the circumstances,
the Applicant has failed to put up facts indicating that the
Commissioner’s award does not meet with
the reasonableness
threshold. Accordingly, I am not persuaded that there are any
grounds for the review of the Commissioner’s
condonation
ruling.
15
The application before
me is therefore dismissed with costs, including the costs of the
hearing on 5 and 6 November 2025.
AC
OOSTHUIZEN A.J.
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Franz Hoflinger
Instructed
by: In Person
For
the Respondents: Leila Moosa
Instructed
by: Cliffe Dekker Hofmeyr Inc.