AMCU obo Mavundla v Bevan NO and Others (JR1384/21) [2024] ZALCJHB 238 (24 June 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR1384/21

In the matter between:

AMCU OBO NGAKE VICTOR MAVUNDLA Applicant

and

COMMISSIONER BEVAN N.O. First Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION

Second Respondent

VILLAGE MAIN REEF (PTY) LTD Third Respondent

Heard: 13 June 2024

Delivered: 24 June 2024

Summary: Application to review and set aside condonation ruling. Requirements not met. Application dismissed.

JUDGMENT

DANIELS J

Introduction

[1] The applicant seeks to review and set aside a ruling made by the first respondent dismissing its application for condonation. For ease of reference, Mr. Mavundla, the affected member of AMCU, will hereafter be referred to as “the applicant”.

Material facts

[2] The applicant was employed by the third respondent as a shift boss. From late 2018 until 2019, he acted in the position of mine overseer. His acting stint exceeded six months, and came to an end on 10 June 2019.

[3] The applicant alleged that the third respondent’s human resources policies entitled him to be permanently appointed because he had acted in the position for a period in excess of six months. During the period he acted, two individuals were permanently

appointed as mine overseers, both white men.

[4] On or about 12 July 2019, AMCU, on behalf of its member, lodged a formal grievance letter with the third respondent.

[5] On 8 October 2019, AMCU, on behalf of its member, referred an alleged unfair labour practice dispute to the second respondent (hereafter “the CCMA”). In the Form 7.11, AMCU ticked unfair labour practice, and described the dispute as “An employee acted for more than eight months not being appointed in the position.” It alleged that the dispute arose on 7 October 2019. The CCMA allocated the dispute a case reference number, NKWD4578/19 (hereafter “the first referral”). In broad terms, the applicant explains that, due to the COVID19 pandemic, the dispute was only enrolled for arbitration on 28 September 2020. On that date the parties agreed to withdraw the first referral and try to settle the dispute amicably.

[6] However, on 2 October 2020, once again, AMCU referred a further dispute to the CCMA. This dispute was identical to the first dispute, except that it described the dispute as having arisen on 2 October 2020. The CCMA allocated case reference number NWKD2727/20 to this referral (hereafter referred to as the “second referral”).

[7] On 12 April 2021, the first respondent issued a ruling that the dispute, under NKWD2727/20, had been referred to the CCMA late. The first respondent held that the dispute arose on 10 June 2019, when it became clear to the applicant that, after acting as of mine overseer, he would not be permanently appointed to that position. Because the dispute arose on 10 June 2019 and was only referred on 2 October 2020, the dispute was referred 388 days late.

[8] It must be noted that, although the applicant was aggrieved that the third respondent had permanently appointed two white men to permanent positions as mine overseers, neither the first nor the second referrals made any mention of discrimination.

[9] It must also be noted that the papers before the CCMA also refer to a dispute under case reference NKWD1106/21 (hereafter the “third referral”). The referral is not included in the arbitration record, and the pleadings do not explain the nature of that dispute. It could be, for reasons unknown to the court, that the CCMA refers to a single dispute (the second referral) under two case numbers.

[10] In accordance with the ruling of the CCMA on 12 April 2021, the applicant applied for condonation for the second referral. The condonation application states as follows:

“[1.1] I submit that the dispute was not referred late. The dispute arose after my acting appointment came to an end on 10 June 2019. I have already acted for more than 6 months consecutively. ….

[1.2] The fact of the matter is that the Respondent had an obligation to appoint me in the mine overseer position after I have acted in the same position for a period exceeding 6 months consecutively. This substantive fact is necessitated by the Respondent’s own policy on acting.

[1.3] The conduct of the Respondent and the nature of the dispute should therefore be understood as continuing, repetitive and continuous.”

(Own emphasis)

[11] In the application for condonation, the applicant firmly characterises his dispute as relating to the implementation of the third respondent’s acting policy. It is only in his concluding remarks in the affidavit filed in support of his application for condonation, that the applicant makes a single fleeting reference to “unfair discriminatory management practices”.

[12] The first respondent, the commissioner, issued her ruling on 26 May 2021. In it, the commissioner:

12.1 Confirmed her earlier ruling on 12 April 2021, that the dispute was referred late. Of course, the commissioner was not at liberty to overturn her earlier finding that the dispute was referred late.

12.2 Ruled that the dispute arose on 10 June 2019, when the applicant’s acting position came to an end. This was consistent with the applicant’s affidavit, as indicated in para 10 above.

12.3 Found that the essence of the applicant’s compliant is that he believed that the acting policy entitled him to permanent appointment - in the position of mine overseer. The commissioner considered that the reference to two white males having been appointed was an afterthought, because the applicant had not lodged any dispute in relation to these individuals.

12.4 The commissioner considered that the period of the delay was excessive. The dispute arose in June 2019 and was referred in October 2020. The first referral, which was also referred late (in the absence of a condonation application) was withdrawn. The commissioner can hardly be faulted for finding that the delay was excessive.

12.5 The commissioner considered that the explanation for the delay was weak. The explanation for the delay was in essence: (1) the COVID19 pandemic was disruptive, (2) there were ongoing settlement discussions, (3) the dispute had earlier been referred, (4) condonation was unnecessary because the dispute was ongoing. The commissioner noted that the explanation did not encompass all the periods of the delay. The commissioner took into consideration that the applicant believed that the dispute was continuous.

12.6 The commissioner considered that the prospects of success were slim to non-existent. The commissioner noted that the acting policy was not provided to her by the applicant but by the third respondent. She noted that the acting policy contained no provision contended for by the applicant. The commissioner noted that the applicant could provide no proof that a vacant and funded position existed to which he could be appointed. In circumstances where the third respondent had recently retrenched approximately 2000 employees this was always going to be difficult. Finally, the commissioner took into consideration that four individuals had acted during the period the applicant acted, two acted for longer periods than the applicant. None of these individuals were permanently appointed.

Legal principles and analysis

[13] In Eskom Holdings SOC Ltd v National Union of Mineworkers obo Kyaya and others[1] (hereafter “Eskom”) the Court held that, whenever it is necessary to determine the true dispute, the CCMA may have regard the referral documents, the request for arbitration, the opening address at arbitration, correspondence relating to the dispute, interlocutory applications, and pre-arbitration minutes.[2] In this matter, all the documents indicate that the true dispute relates to the acting policy, not to the alleged discrimination when the employer appointed two white men.

[14] In Eskom, the learned acting justice, Snyman AJ, correctly noted that, unlike arbitration awards, which relate to the merits of the dispute,

jurisdictional rulings (including rulings relating to condonation for late referrals) must be reviewed on the basis of correctness not reasonableness.[3] Accordingly, this Court is not limited by the reasoning of the commissioner. The Court must determine afresh, and objectively, whether the CCMA had jurisdiction.

[15] The applicant argues that the failure to promote him is a continuous and repetitive unfair labour practice; such as that which arose in SABC Ltd v CCMA and others[4] (“SABC”). In SABC the Labour Appeal Court (“LAC”) held that a dispute relating to an “unfair labour practice/unfair discrimination”

where an employer discriminates against an employee by unfairly[5] paying him or her a reduced remuneration; the practice or discrimination might be considered continuous and repetitive because

the conduct occurs repeatedly on every pay date, each month; though each case will depend on its own facts.

[16] The SABC matter was followed by two further LAC decisions[6] which appear to contradict each other but do not engage with each other.[7] Luckily, in this matter, there is an easy answer to this conundrum. The applicant did not seek to review and set aside the commissioner’s ruling of 12 April 2021. In that ruling, the commissioner found that the act or omission (referred to in section 191(1)(b)(ii) of the LRA) occurred on 10 June 2019; and the referral was 388 days late. By implication, when the commissioner found that the unfair labour practice had been referred late, she also found that the dispute was not ongoing or continuous. The commissioner was, in that respect, functus officio and could not revisit her earlier ruling. To repeat, it has not been raised in this application that the ruling of 12 April 2021 falls to be reviewed and set aside. In the circumstances, I need not determine if the alleged unlawful conduct is ongoing, repetitive or continuous.

[17] Having considered all the facts, and submissions, I accept the commissioner’s findings that the delay is excessive, the explanation was weak and failed to cover the entire period of the delay. In addition, I agree that the applicant’s prospects of success, are slim to non-existent. Accordingly, I find that the commissioner was correct to dismiss the application for condonation.

Conclusion

[18] In the premises, the application is dismissed. There is no order as to costs.

RN Daniels

Judge of the Labour Court of South Africa

Appearances

For the Applicant:

Adv Ramaili SC

Instructed by: Dieketseng Damane

For the Respondent:

Mr H Wissing (Attorney)

Henk Wissing Attorneys

[1] Eskom Holdings SOC Ltd v National Union of Mineworkers obo Kyaya and others [2017] 8 BLLR 797 (LC) at paragraphs [57] to [60]

[2] See paragraph 49

[3] See paragraphs 31 – 36

[4] [2010] 3 BLLR 251 (LAC)

[5] Where the reason for the different remuneration is directly or indirectly related to one or more of the grounds in section 6(1) of the Employment Equity Act No. 55 of 1998.

[6] See Mngadi v Jenkins NO (2021) 42 ILJ 768 (LAC) and Amalungelo Workers Union obo Mayisela and others v CCMA 2022 43 ILJ 600 (LAC)

[7] See “Recurring Problem of Interpretation: Determining the Date of an ‘Ongoing’ Act or Omission” (2023) 44 ILJ p1416 by M Makhura, J Phillips and A Gwebiutyala