Bauer-Frank v Commission for Conciliation, Mediation and Arbitration and Others (JR 353/20) [2022] ZALCJHB 35 (3 March 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JR 353/20

In the matter between:

MICHELLE BAUER-FRANK

Applicant

and

COMMISSION FOR CONCILIATION MEDIATION

AND ARBITRATION First Respondent

THEMBA ZWANE N.O.

Second Respondent

DISCHEM LIMITED

Third Respondent

Enrolled: 24 February 2022 (On the papers)

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to

be on 3 March 2022 at 08:00

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] In this application, the applicant seeks an order reviewing and setting aside the condonation ruling dated 19 January 2020, which was issued by the second respondent (Commissioner), acting under the auspices of the first respondent, the Commission for Conciliation Mediation and Arbitration (CCMA).

[2] In the ruling, the Commissioner declined to condone the late referral of the applicant’s

claim for constructive dismissal. The review application is opposed by the third respondent (Dischem).

Background:

[3] The background facts leading to the application for condonation before the Commissioner

can be summarised as follows;

3.1 The applicant was employed by Dischem as a Pharmacist. On 30 April 2019, she was placed on precautionary suspension on the basis of the allegations of misconduct.

3.2 On 2 May 2019, she was served with a notice to appear before a disciplinary enquiry to answer to allegations of gross negligence, gross dishonesty and bringing Dischem into disrepute. These allegations stem from the event of 5 April 2019, when the applicant purportedly dispensed an incorrect dosage of medicine to a patient, and further having stated that she had confirmed the dosage in accordance with the Prescription as issued by a medical doctor, in circumstances where she had in fact not done so.

3.3 The disciplinary enquiry was scheduled for 7 May 2019 but had to be postponed on account of the applicant’s ill-health. The enquiry resumed on 28 May 2019.

3.4 The applicant alleged that at that enquiry, she was subjected to cruel and prolonged

cross-examination and verbal harassment by the chairperson of the enquiry, and that Dischem had at some stage during the enquiry,

advised her to resign.

3.5 In the light of her persistent verbal harassment and questioning on issues that she could not recall due to her medical condition, she held the view that she had no option but to resign. In her resignation letter, the applicant recorded that she was resigning on account of health reasons.

3.6 Some three months later on 2 September 2019, the applicant’s father wrote to the Chief Executive Officer (CEO) of Dischem requesting that the termination of the applicant’s employment be reconsidered. On 12 September 2019, the CEO issued a response to the effect that the termination of the applicant’s employment could not be reversed in the light of the allegations of misconduct.

3.7 On 21 September 2019, the applicant instituted proceedings in terms of section 28 of the Promotion of Equality and Prevention of Unfair Discrimination Act[1] in the Equality Court. On 25 October 2019, the Equality Court dismissed the application in terms of the PEPUDA and further

advised the applicant to approach the CCMA for relief.

3.8 On 9 December 2019, the applicant launched a constructive dismissal dispute at the CCMA together with an application for condonation for the late referral of the dispute.

The condonation ruling:

[4] In her application for condonation, the applicant averred that the constructive

dismissal dispute arose on 12 September 2019 after attempts to follow internal procedures of Dischem failed, and that to this end, the referral was late by some two months and 26 days.

[5] The applicant had attributed the delay to being under medical treatment as a result of the emotional stress caused by the events of 28 May 2019, and further having incorrectly referred a matter to the Equality Court. She had further averred that she had prospects of success as she would not have resigned had Dischem not made continued employment intolerable for her by forcing her to resign.

[6] In his ruling, the Commissioner had outlined the principles applicable to applications

for condonation, and further considered whether a constructive dismissal within the meaning of section 186(e)[2] of the LRA took place. He had found that the time frames for referring the dispute were to be computed from the time when the resignation took effect viz. 28 May 2019 and moreover that the letter to the CEO subsequent thereto did not interrupt the running of the timeframe. He further concluded that the hospitalisation of the applicant between 2 August 2019 and 24 August 2019 also did not interrupt the running of the time periods.

[7] In regards to prospects of success, the Commissioner found that the applicant had not raised any intolerability which prevailed during the course of her employment, and that she had resigned in response to disciplinary

steps having been instituted against her. Furthermore, that there were no averments which demonstrated that the applicant was on the receiving end of any purported intolerable conditions in the workplace. The Commissioner on the contrary found that the applicant

had expressed gratitude to Dischem for the opportunity that it had provided to her in her resignation letter.

[8] The Commissioner held that in terms of our law, an excessive delay generally rendered the prospects of success in the matter in material. He in the end concluded that the excessive delay diminished any prospects of

success to an extent that there were ‘little or no prospects of success’ in the matter.

Evaluation:

[9] Given that commissioners exercise a discretion when they grant or refuse condonations, when this Court is called upon to review condonation rulings, it may only interfere with such rulings in limited circumstances. These would include an enquiry into whether the Commissioner committed a misdirection or an irregularity; or failed to exercise her discretion properly, or failed to exercise the discretion at all; or the exercise of the discretion was premised on the incorrect principles; or the discretion was exercised capriciously, or in a biased manner, or for unjustifiable reasons.[3]

[10] Section 191(1)(b)(i) of the Labour Relations Act[4] (LRA) requires any employee alleging the unfairness of a dismissal, to refer a dispute in writing to the CCMA within 30 days from the date of the dismissal or from the date on which the employer made the final decision to dismiss, or to uphold the dismissal. Under subsection (2), a Commissioner may on good cause shown, condone the non-compliance with these timeframes.

[11] In the condonation application before the CCMA, the applicant was of the view that the dispute arose on 12 September 2019, when the CEO refused to intervene. The Commissioner was correct in rejecting that contention to the extent that it was common cause that the applicant had resigned, and which resignation was accepted by Dischem on 28 May 2019.

The applicant had until 30 June 2019 within which to refer a dispute, and she only did so on 9 December 2019, making the referral about six (6) months out of time.

[12] It is trite that commissioners faced with applications for condonation must make a determination

whether to grant or decline condonation, taking into account all the relevant facts which include inter alia, the degree of lateness, the explanation therefor, the prospects of success of the main claim, and the prejudice a party may suffer if condonation is granted or refused[5]. Similarly, upon a consideration of these factors, the interests of justice will dictate whether condonation should be granted or refused[6].

[13] A delay of six months in referring the dispute was indeed excessive, and this had placed an obligation

on the applicant to give a full account of each period of the delay. As a starting point, and to the extent that the applicant had incorrectly assumed that the dispute arose on 2 September 2019 with the intervention of his father, the implications thereof are that there was no explanation for the delay between 28 May 2019 and 2 September 2019.

[14] Inasmuch as the applicant had not in her founding affidavit made an attempt to explain that delay, it was common cause that the application was argued before the Commissioner, and that Dischem had not filed an answering affidavit.

The parties were permitted to make oral submissions, thus affording the applicant an opportunity to address any gaps in her founding

affidavit, whilst further allowing Dischem to make submissions in opposition to the application.

[15] In these proceedings, the applicant had complained that the Commissioner had unduly afforded Dischem an opportunity to make oral submissions in the absence of an answering affidavit, and thus committed a reviewable irregularity. I nonetheless have difficulties with this complaint on the simple basis that commissioners under Rule 31(10) of the CCMA[7] may determine an application in a manner that they deem fit. The provisions of Rule 31(3)(e) of the CCMA Rules as relied upon by the applicant are therefore not an end in themselves to the extent that there is a requirement for an answering affidavit to be filed. It was therefore irrelevant for the purposes of a determination by the Commissioner, whether an answering affidavit had been filed, unless the applicant could have demonstrated prejudice resulting from the oral submissions made on behalf of Dischem.

[16] The mere fact that commissioners may allow parties to oppose applications before the CCMA without filing

answering papers does not imply that every oral submissions will be accepted and considered without qualification. Even in this Court, it is not uncommon for respondent parties to only file notices of intention to oppose, and not file answering affidavits. They would merely make an appearance on the hearing date, to oppose applicants’ applications on their own papers, and also raise arguable points of law.

[17] Caution should however be exercised by commissioners as does the courts, in that there is a fine line between legal arguments raised on the applicant’s own papers, and oral submissions which fall squarely within the purview of impermissible and/or inadmissible hearsay evidence. It however needs to be stated that for the purposes of exercising a discretion under the provisions of Rule 31(10) of the CCMA rules, and to allow respondent parties’ oral submissions without an answering

affidavit, it will be up to the commissioners or the Commission to decide whether a notice of intention to oppose would have been

required. I nonetheless doubt that this will be the case, given the status of the CCMA and the simplified non legalistic processes it is required to adopt, in line with the objects of the LRA which is to expeditiously resolve labour disputes.

[18] In this case, the Commissioner was informed of the failure to file an answering affidavit, but had

nonetheless permitted the oral submissions. Inasmuch as it is accepted as correctly submitted on behalf of the applicant that the oral submissions could not have constituted evidence, there is no suggestion that any inadmissible hearsay evidence was considered by the Commissioner, other than submissions that were based on the applicant’s own papers.

[19] I did not understand the applicant’s case to be that the Commissioner did not advise her

or her counsel of the manner of the conduct of the proceedings. There is further no basis for a conclusion to be reached that the approach of the Commissioner in itself deprived the applicant of a fair hearing, where it is clear that in the light of lack of sufficient particulars and averments in her founding affidavit, she was afforded an opportunity to make further submissions. The papers before the Court demonstrates that the condonation application before the commissioner, was dispositive purely on the applicant’s own version and averments.

[20] In any event, the mere fact that an answering affidavit was not filed did not on its own entitle the applicant to an indulgence without more. The mere fact that the condonation application could have been deemed unopposed does not entitle a party to automatic relief. The applicant therefore was still obliged to persuade the Commissioner whether she had established just cause for her to be granted an indulgence. This point was long made in Uitenhage Transitional Local Council v South African Revenue Service[8], that condonation is not there for the mere asking and that the applicant must make out a case for condonation.

[21] To the extent that the applicant further attributed the delay to her medical condition, again this explanation was glaringly lacking in particularity. It is not doubted that the applicant may have had medical problems to deal with. What is being stated however is that a mere averment that one had medical problems on its own cannot constitute a reasonable or acceptable explanation for the delay. In this regard, no complete account was given in regards to the medical problems that the applicant may have encountered, for the purposes of determining whether indeed she was incapacitated to such an extent that she was unable to make any attempt at complying with the time frames.

[22] In conclusion, in regards to the explanation proffered for the delay, whether the applicant was

hospitalised between the 2 August 2019 and 24 August 2019 was immaterial for the purposes of explaining the delay. This is was so since the hospitalisation had occurred almost three months since her resignation and long after the prescribed period for a referral had expired.

[23] The explanation in regards to having incorrectly referred the matter to the Equality Court is of no

assistance to the applicant either. That referral was made on 21 September 2019, long after the referral to the CCMA was due. Even then, the Equality Court advised the applicant on 25 October 2019 when dismissing her matter, to refer it to the CCMA. She nonetheless took over one month to do, and only referred the dispute on 9 December 2019. In the end, a complete account of these periods of delays was not proffered, and the Commissioner’s conclusions that the explanation was not satisfactory cannot be faulted.

[24] When a reasonable and acceptable explanation for the excessive delay could not be proffered, the Commissioner at that point as per the dictum in NUM v Council for Mineral Technology[9] would have been entitled to dispose of the matter. He nonetheless proceeded to consider the prospects of success, and found that there could not be a constructive dismissal since the applicant had resigned in response to disciplinary processes being initiated

against her. The Commissioner further found that since a resignation was a measure of the last resort, there was no indication as to what other measures the applicant had pursued in order to remedy the alleged intolerable working conditions. Furthermore, the Commissioner had observed that the applicant had not raised any intolerable working conditions during the course of her employment.

[25] The basis upon which the Commissioner’s conclusions are criticised in regard to the above conclusions is not immediately discernible. It is accepted that in applications for condonation, it is not necessary for the applicant to fully ventilate the merits of her case, and that all that is required is for the Commissioner to form a view that the applicant enjoys some prospects of success on the merits.

[26] In Western Cape Education Department v General Public Service Sectoral Bargaining Council and Others[10] the Court held that an employee who alleges constructive dismissal bears the onus of proving that the employer in fact made the

employment relationship intolerable. Furthermore, the test to be applied in such case is not whether the employee had no other option but to resign, but whether the employer had created conditions which made a continued employment relationship intolerable.

[27] It will be recalled that the applicant was in the middle of a disciplinary enquiry to answer to allegations of misconduct, when she handed in her resignation, which Dischem had accepted. The basis of the alleged intolerable conditions created by Dischem was according to the applicant, the manner with which she was subjected to cross-examination; compelled to answer questions on issues she had no recollection of; and further unfair and discriminatory treatment she was subjected to between 30 April 2019 and 28 May 2019. This was the period between her being issued with a suspension, and the disciplinary enquiry itself. Furthermore, she had alleged that she was told to resign by Dischem.

[28] To the extent that the applicant had only cited the above events as triggering the alleged intolerability, the Commissioner’s conclusions therefore that the she had not demonstrated the existence of an intolerable condition during the course of her employment cannot be faulted. It is not clear what the applicant’s complaint was during the period between the suspension and sitting of the disciplinary enquiry for the purposes of proving a constructive dismissal, even if that period fell within the period of employment. A mere issuing of a suspension and being informed of a sitting of a disciplinary enquiry can hardly be construed as creating an intolerable condition. Employers are entitled within their managerial prerogative, to initiate disciplinary steps against employees, when deemed appropriate.

[29] The issue that arose then was whether the alleged intolerable conditions were triggered by the

events at the disciplinary enquiry as described by the applicant. The starting point is that in her resignation letter, the applicant cited ‘health reasons’. Inasmuch as it is accepted that the applicant had health problems at the time of the hearing, it will be recalled that the initial hearing was postponed in the light of the applicant’s ill-health, and it is not clear as to why she had sat in the rescheduled hearing when she was still not well.

[30] The purpose of disciplinary hearings is to inter alia, afford an employee accused of misconduct, an opportunity to hear and respond to allegations against her, to state her case, be subjected to cross-examination, and to subject her accusers to similar cross-examination, with the sole aim of enabling the chairperson to arrive at a fair and informed decision.

[31] Where an employee is of the view that a fair and objective disciplinary process had not been followed, or that the outcome reached was unfair, that employee has the option of either lodging an appeal in which she will state all her complaints in relation to the manner with which the initial enquiry was conducted, or where that fails, to invoke the dispute resolution

mechanism designed in the LRA.

[32] An employee cannot simply resign when subjected to a disciplinary hearing and thereafter claim constructive

dismissal. An employee can also not resign simply because she was subjected to intense cross-examination, which was intended to elicit the necessary relevant facts, to assist the chairperson in arriving at a fair decision. Where the cross-examination goes beyond its intended purpose, it is for the chairperson to intervene, and where there is a failure by the chairperson to do so, the affected employee as already indicated has both internal remedies and those envisaged in the LRA. A resignation midstream a disciplinary enquiry, and where an employee is required to answer to allegations of misconduct and where she was afforded an opportunity to state her version of events and answer to those allegations, cannot be a measure of last resort for the purposes of establishing constructive dismissal.

[33] The contention that the applicant was forced to resign during the disciplinary hearing is equally

without merit. I find difficulty in appreciating how she was forced to resign in circumstances where she was merely being subjected to cross-examination in respect of allegations of misconduct, which Dischem construed as being serious within the context of her

professional duties. In any event, it had transpired that she had resigned at the time that the disciplinary enquiry was about to be concluded but before the chairperson could make findings. Having gone through what the applicant perceived as unfair, cruel or inhumane cross-examination, I further have difficulties in appreciating the reason the applicant would have resigned when all that she needed to do was to wait for the outcome, and thereafter take the matter further if she was aggrieved by that outcome.

[34] In summary, inasmuch as there might be cause to criticise the Commissioner’s ruling, in the end, there is no doubt that he was however aware of his duties, the factors he had to consider, and his obligation to exercise his discretion judicially. Based on the excessive delay, the failure to proffer a reasonable and acceptable explanation for that delay, and the lack of prospects of success on the merits, it is apparent that there can be no basis for any conclusion to be reached that the Commissioner exercised his discretion in an improper manner or for all the wrong reasons.

[35] In circumstances as above, it was more Dischem that stood to suffer prejudice, as it would have been compelled to mount a defence to a matter that lacked merits had condonation been granted. Under those circumstances, surely the interests of justice dictated that condonation be refused. To that end, it is found that all the grounds raised in this review

application are unsustainable, and that the Commissioner’s ruling is unassailable.

[36] Dischem had sought an award of costs against the applicant where the application was to be dismissed. Inasmuch as the review application was ill-advised, upon a consideration of the requirements of law and fairness, this Court should be disinclined to make any order as to costs.

[37] Accordingly, the following order is made;

Order:

1. The applicant’s application to review and set aside the condonation

ruling dated 16 January 2020 under case number GAJB 28945-19 issued by the second respondent under the auspices

of the CCMA is dismissed.

2. There is no order as to costs.

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

REPRESENTATION:

For the Applicant:

Otto Krause Incorporated (Heads of argument prepared by Adv. P. Louw)

For the Third Respondent:

Cliffe Dekker Hofmeyr Incorporated (Heads of argument prepared Adv. A.L. Cook)

[1] Act 4 of 2000

[2] Section 186 of the LRA reads as follows: Meaning of dismissal and unfair labour practice ― Dismissal‖ means that – (a) an employer has terminated employment with or without notice; (b) … (c) … (d) … (e) an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee; or (f) …

[2] Section 186 of the LRA reads as follows:

Meaning of dismissal and unfair labour practice ―

Dismissal‖ means that –

(a) an employer has terminated employment with or without notice;

(b) …

(c) …

(d) …

(e) an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee; or

(f) …

[3] See Motloi v SA Local Government Association [2006] 3 BLLR 264 (LAC); Cowley v Anglo Platinum & others [2016] JOL 35884 (LC)

[4] Act 66 of 1995, as amended

[5] Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532B-E

[6] See Steenkamp and Others v Edcon Limited 2019 (7) BCLR 826 (CC); (2019) 40 ILJ 1731 (CC); [2019] 11 BLLR 1189 (CC), where it was held that; “[36] Granting condonation must be in the interests of justice. This Court in Grootboom set out the factors that must be considered in determining whether or not it is in the interests of justice to grant condonation: “[T]he standard for considering an application for condonation is the interests of justice. However, the concept ‘interests of justice’ is so elastic that it is not capable of precise definition. As the two cases demonstrate, it includes: the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success. It is crucial to reiterate that both Brummer and Van Wyk emphasise that the ultimate determination of what is in the interests of justice must reflect due regard to all the relevant factors but it is not necessarily limited to those mentioned above. The particular circumstances of each case will determine which of these factors are relevant.””

[6] See Steenkamp and Others v Edcon Limited 2019 (7) BCLR 826 (CC); (2019) 40 ILJ 1731 (CC); [2019] 11 BLLR 1189 (CC), where it was held that;

“[36] Granting condonation must be in the interests of justice. This Court in Grootboom set out the factors that must be considered in determining whether or not it is in the interests of justice to grant condonation:

“[T]he standard for considering an application for condonation is the interests of justice. However, the concept ‘interests of justice’ is so elastic that it is not capable of precise definition. As the two cases demonstrate, it includes: the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success. It is crucial to reiterate that both Brummer and Van Wyk emphasise that the ultimate determination of what is in the interests of justice must reflect due regard to all the relevant factors but it is not necessarily limited to those mentioned above. The particular circumstances of each case will determine which of these factors are relevant.””

[7] Rule 30 (10) reads: ‘Despite this Rule, the Commission or a commissioner may determine an application in any manner it deems fit, provided that the Commission or the commissioner informs the parties of how the process will be conducted and gives the parties an opportunity to be heard.’

[7] Rule 30 (10) reads:

‘Despite this Rule, the Commission or a commissioner may determine an application in any manner it deems fit, provided that the Commission or the commissioner informs the parties of how the process will be conducted and gives the parties an opportunity to be heard.’

[8] 2004 (1) SA 292 (SCA) at para [6]

[9] 1999 3 BLLR 209 (LAC) at p211 paragraph G-H

[10] [2014] 10 BLLR 987 (LAC); See also Murray v Minister of Defence (2008) 29 ILJ 1369 (SCA)