Potelo v Commissioner for Conciliation, Mediation and Arbitration

• Jurisdiction: South Africa
• Judge: Snyman AJ
• Judgment Date: 12 December 2013
• Docket Number: JR 2642/2010
• Hearing Date: 23 August 2013
• Court: Labour Court

Snyman, AJ

Introduction

[1]

This matter concerns an application by the applicants to review and set aside an arbitration award of the second respondent in his capacity as commissioner of the CCMA (the first respondent). This application has been brought in terms of

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Section 145 of the Labour Relations Act [1] ("the LRA").

[2]

The third respondent dismissed the applicants on 21 January 2010 for misconduct based on charges relating to dishonesty for fraudulently claiming for overtime not worked. The applicants then pursued their dismissal as an unfair dismissal dispute to the CCMA and the matter came before the second respondent for arbitration on 23 August 2010. Pursuant to these arbitration proceedings, the second respondent then determined that the dismissal of the applicants by the third respondent was substantively and procedurally fair. The second respondent then dismissed the applicants' claim of unfair dismissal. It is this determination by the second respondent that forms the subject matter of the review application brought by the applicants, which application was filed on 15 December 2010.

[3]

The arbitration award of the second respondent was received by the applicants on 9 September 2010. In terms of Section 145 of the LRA, the review application had to be brought within six weeks of such date, being on or before 24 October 2010. The review application was thus brought some seven weeks out of time.

[4]

Contrary to what is suggested by the applicants in their condonation application in the founding affidavit, a delay of some seven weeks in the context of a review application must be considered to be significant. In Academic and Professional Staff Association v Pretorius No and Others, [2] even a three weeks? delay was found to be excessive when it comes to review applications. Because a delay of seven weeks is material, a comprehensive and proper explanation is required for the delay.

[5]

The Labour Appeal Court in A Hardrodt (SA) (Pty) Ltd v Behardien and Others [3] dealt with a condonation application for the late filing of a review application. The

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Court referred with approval to the judgment in Queenstown Fuel Distributors CC v Labuschagne NO and Others [4] and said:

'The principles laid down in that case included, firstly that there must be good cause for condonation in the sense that the reasons tendered for the delay had to be convincing. In other words the excuse for non-compliance with the six-week time period had to be compelling. Secondly, the court held that the prospects of success of the appellant in the proceedings would need to be strong. The court qualified this by stipulating that the exclusion of the appellant's case had to be very serious, ie of the kind that resulted in a miscarriage of justice.?

[6]

What is clear from the judgment in A Hardrodt is that in seeking condonation for the late filing of a review application the explanation that needs to be submitted must be compelling and the prospects of success need to be strong. Where it comes to the issue of prejudice, the applicant in fact has to show that a miscarriage of justice will occur if the applicant's case is not heard. The reason for this is that review applications occur after the parties have already been heard, presented their respective cases and a finding has been made. Under such circumstances, considerations of justice, fairness and expedition require that challenges of such findings must not be delayed and must be completed as soon as possible.

[7]

The Court in Academic and Professional Staff Association, [5] developed the principles applicable to the consideration of condonation applications in the context of review applications even further, and held as follows:

'The factors which the court takes into consideration in assessing whether or not to grant condonation are: (a) the degree of lateness or non-compliance with the prescribed time frame; (b) the explanation for the lateness or the failure to comply with time frame; (c) prospects of success or bona fide defence in the main case; (d) the importance of the case; (e) the respondent's interest in the finality of the

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judgment; (f) the convenience of the court; and (g) avoidance of unnecessary delay in the administration of justice. See Foster v Stewart Scott Inc (1997) 18 ILJ 367 (LAC). It is trite law that these factors are not individually decisive but are interrelated and must be weighed against each other. In weighing these factors for instance, a good explanation for the lateness may assist the applicant in compensating for weak prospects of success. Similarly, strong prospects of success may compensate the inadequate explanation and long delay.?

[8]

The applicants explained the delay in this matter as follows: (1) the applicants actually applied for a case number for review in time on 8 October 2010; (2) the applicants had already consulted an attorney on 27 September 2010 who needed to obtain instructions to proceed with the litigation from three different insurance institutions each of the applicants were individually members of; (3) the applicants had difficulty in getting their file content from their previous attorneys; (4) the applicants had difficulty in getting a case number; and (5) the applicants? attorney had difficulty in getting confirmation of cover from all the institutions and finally decided to proceed without cover. The applicants only addressed the issue of prejudice with a bald statement that the third respondent would not be prejudiced.

[9]

I consider the above explanations to be rather thin and lacking in detail. What however in my view saved the applicants is that the third respondent did not oppose this condonation application and the issue of condonation was not raised by the third respondent when the matter was argued before me. Therefore, and despite the explanation being far from acceptable, it is nonetheless at least some explanation, which in the absence of opposition, convinces me to consider the issue of the prospects of success of the review application and this in turn entails a full consideration of the merits of the applicants? review application, which I will now proceed doing. I will thus record that condonation is granted for this purpose.

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Background facts

[10]

The three applicants were employed by the third respondent as production supervisors. As such, they occupied a position of trust and responsibility.

[11]

The events giving rise to this matter took place on 9 August 2009. On that day, two of the applicants, being Potelo and Phakoe, were scheduled to work a 12 hour overtime shift underground. The duties these two applicants had to fulfil were the supervision of cleaning to be conducted underground. There was in fact no surface work scheduled on that day. In the case of the applicant Sennya, he was not scheduled to work underground, but he added his name to the overtime list after it has already been signed off by the mine overseer Henery, without the knowledge and approval of Henery. Sennya then also proceeded to work underground on 9 August 2009.

[12]

The difficulty was that none of the three applicants completed their working shift, but claimed payment, and were paid, for the full shift. This is actually dishonest conduct. In the case of Sennya, he clocked above ground, meaning he came up from working underground, at 09h04, which was only about two hours into his shift, but claimed and was paid for the full 12 hour shift. In the case of Potelo and Phakoe, they also clocked above ground at 09h04 and actually left the mine premises at just after 13h00, never to return. Both these applicants also claimed, and were paid for, the full 12 hour shift.

[13]

What is significant is that Potelo and Phakoe both left separately in their own vehicles, which was recorded on the video surveillance. On the same surveillance, these applicants were never recorded as having returned. The final piece of the puzzle was that Potelo and Phakoe were both clocked out for duty at 18h04, at the end of their shift, when they were not even there. Some unidentified person must have done this for them.

[14]

The applicants were then charged with dishonesty as a result of the above

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conduct, and following disciplinary proceedings presided over by an independent third party chairperson, the applicants were dismissed. It must be stated that the applicants refused to participate in the disciplinary proceedings and left such proceedings from the outset.

[15]

The matter then came before the second respondent for arbitration who determined that the applicants' dismissal was fair. Hence the current review application.

The relevant test for review

[16]

The proper review test to be applied is known in the general labour law colloquial tongue as the 'Sidumo test?. This test comes from the judgment in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others, [6] where Navsa, AJ held that in light of the constitutional requirement (in s 33 (1) of the Constitution) that everyone has the right to administrative action that is lawful, reasonable and procedurally fair, and that „the reasonableness standard should now suffuse s 145 of the LRA?. The majority of the Constitutional Court set the threshold test for the reasonableness of an award or ruling as the following: 'Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?? [7] Following on, and in CUSA v Tao Ying Metal Industries and Others, [8] O'Regan J held:

'It is clear…. that a commissioner is obliged to apply his or her mind to the issues in a case. Commissioners who do not do so are not acting lawfully and/or reasonably and their decisions will constitute a breach of the right to administrative...