Budhal v Department of Education - KZN and Others (D884/19) [2021] ZALCD 82 (14 December 2021)

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT DURBAN

Not Reportable

CASE NO: D884/19

In the matter between:

DR RISHICHAND SOOKLAL BUDHAL APPLICANT

and

DEPARTMENT OF EDUCATION - KZN FIRST

RESPONDENT

COMMISSIONER HUMPHREY NDABA N.O. SECOND

RESPONDENT

EDUCATION LABOUR RELATIONS COUNCIL THIRD

RESPONDENT

Heard: 30 June 2021

Delivered: 14 December 2021

JUDGMENT

Moodley AJ

1. The Applicant has brought a review application which seeks to set aside an award made by the Second Respondent (“Commissioner”) on 19th March 2019. The arbitration was conducted under the auspices of the Third Respondent (“the ELRC”). The Applicant also seeks condonation for the late filing of his review application.

BACKGROUND

2. The applicant was employed as an educator by the Department of Education on 1 January 1982. At the time, that Department was under the control of the erstwhile House of Delegates. His services were terminated on 31 December 1986. His subsequent re-employment on 30 March 1987 resulted in an interruption in his service of approximately 90 days. He remains in employment with the First Respondent (“the Department”), as a school Principal. The Applicant’s dispute arises over his claim for restoration of continuity of service, notwithstanding its interruption.

3. On 20 April 2010, he referred a dispute to the ELRC and a conciliation/pre-arbitration was held. It is common cause that it resulted in an outcome whereby the Applicant’s dispute would be processed as an internal grievance. Consequently, the Applicant lodged a grievance on 27 May 2010. It is common cause that the grievance remained unresolved for a period of approximately 8 years. The record shows that he made thirty-one requests for the Department to finalise his grievance but no response on the outcome of the grievance was forthcoming.

4. Consequently, on or about 2 October 2018, the Applicant referred a dispute to the ELRC. He was informed by the ELRC that his referral was not made within the prescribed ninety-day period, and he was advised to make a condonation application (“the ELRC condonation”) which he did make on 2 October 2018. That application came before the Commissioner who refused to condone the late referral of the dispute to the ELRC. That award is the subject of this review application, but it has been filed late. The Applicant now seeks condonation (“the Review condonation”) for the delay in filing the review application.

THE REVIEW CONDONATION APPLICATION

5. Counsel for the Department raised a procedural objection to the omission of a prayer seeking condonation in the Notice of Motion of the review application. The objection is unfounded because the Department was not prejudiced by the omission. The Applicant’s Founding Affidavit included a prayer for such relief and the Department opposed the application on its merits.

6. The Commissioner’s award is dated 19 March 2019. The prescribed period of six weeks within which this review application ought to have been launched expired on 30 April 2019. It is common cause that the review application was launched 46 days late. The application was filed on 10 July 2019. A delay of 46 days is not inconsequential. A reasonable explanation for each period of the delay must be provided. [[1]]

7. It is necessary to consider the Applicant’s account of events during the prescribed period, before the delay itself, to evaluate whether the Applicant’s conduct caused the delay. It is not in dispute that the award dated 19 March 2019 was transmitted to him by the ELRC a week later, on 27th of March 2019. No blame can be ascribed to the applicant for the first week of the prescribed period.

8. The Applicant accounts for the remaining five weeks of the prescribed period by explaining that during this time his trade union (“union”) was considering his request for funding to meet the costs of the review application. Counsel for the Respondent urged me to disregard the Applicant’s version, given the absence of any affidavit from the union confirming its involvement.

9. The Applicant’s version is plausible. It is not unusual for a union member to seek financial assistance from the union when litigation is contemplated. The record reveals that he had hitherto, also requested assistance from the union over the Respondent’s failure to respond to his complaint. His belief that his prospects of success were good was founded on the union’s advice. Such a pattern of reliance on the union supports the Applicant’s version.

10. Five of the six weeks of the prescribed period lapsed while the union considered his request for funding. The Applicant’s conduct during this five-week period was not pervaded by idleness or inaction. He took steps to ascertain the costs of a review application and he obtained an estimate of R110 000 for the costs. As it turned out, the union was unable to provide funding and his proactivity appears to have minimised any delay in him obtaining alternative funding, as emerges from his explanation for the actual delay of forty-six days.

11. On 5 May, two days after the expiry of the prescribed period, the union informed him that it was unable to provide funding. Five days later, on 13 May 2019, he obtained the earliest appointment to consult with his attorney of record. He obtained a loan with due haste within a relatively short period of ten days, and on 27 May 2019, he placed his attorney in funds. Thereafter, twenty-four days elapsed until the papers were prepared and signed on 1 July 2019. The Applicant has explained each period of the delay and his explanation is reasonable.

12. However, it is apparent from the court file that the papers were filed on 10 July 2019, approximately two weeks after the papers were signed. This delay is attributable to the Applicant’s attorney and it has not been explained. This court has held that there is a limit, beyond which an Applicant cannot escape liability for his attorney’s conduct [[2]]. It cannot be said that such a limit has been reached in circumstances where the delay is relatively short and the attorney had acted diligently up until then.

13. I am satisfied that the Applicant has provided a reasonable explanation for the delay. His prospects of success are intertwined with the outcome of the review application. I proceed to consider its merits.

THE REVIEW APPLICATION

14. The Applicant’s grounds of review are, inter alia, that the Commissioner misconducted himself and he committed a gross irregularity.

15. It appears that the Commissioner made his award dated 19 March 2019 on the papers. However, on 21 February 2019, the Commissioner convened preliminary proceedings, and directed the parties to file their respective pleadings within certain time limits.

16. The Applicant’s version of the events at these proceedings were not placed in dispute in the Department’s answering affidavit. Surprisingly, the Department’s counsel submitted that the Applicant’s version was not undisputed. As I understood his submission, it was contended that the Applicant did not put up a Replying Affidavit. There is no merit in this submission.

17. It is also undisputed that at the appearance of the parties at the proceedings held on 21 February 2019, the Commissioner had come to conclusion that the period of delay was not thirty-three days, but rather seven years. The record shows that the Applicant’s original condonation application dated 2 October 2018 was altered from thirty-three days to seven years. It is undisputed that the Commissioner made that alteration to the Applicant’s original condonation application by striking off thirty-three days and inserting “7 years”, by hand.

18. By making this alteration, the Commissioner implicitly directed the applicant to file a new condonation application which explains the Applicant’s anomalous second condonation application dated 3 March 2019. It is significant that this date indicates it was only filed after the proceedings held on 21 February 2019. The Commissioner clearly misconducted himself by altering the Applicant’s application. The award is reviewable on this ground alone.

19. As previously mentioned, at the proceedings held on 21 February 2019, the Commissioner directed the parties to file their respective

pleadings. It is clear, that the Commissioner made the alteration about the extent of the delay before the close of pleadings which he had directed be filed. As a result, the Commissioner pre-judged the extent of the delay before considering all the evidence. In this respect, the Commissioner’s conduct did not afford the Applicant a fair hearing. [[3]]. It follows, his award is also reviewable for this reason as a patent gross irregularity.

20. Moreover, the Commissioner also committed a reviewable process irregularity. It is important to emphasise that by concluding that the extent of the delay was 3215 days, he was of the view that the dispute arose in April 2010 when the Applicant made his original referral of a dispute to the ELRC. The Commissioner clearly misconceived the nature of the enquiry before him. He failed to appreciate that the determination of the extent of the delay, required him to apply his mind to the issue of the date on which the dispute arose.

21. To sum up, the Commissioner misconducted himself; did not afford the applicant a fair hearing; and misconceived the nature of the enquiry before him. The review of the award succeeds on any one of these grounds.

22. I have considered whether to remit this matter for a new hearing. Two factors militate against doing so. Two and a half years have elapsed because of an unreasonable decision in an interlocutory application. There is sufficient evidence on the record for the matter to be determined by this court. I proceed to consider the ELRC condonation application.

THE ELRC CONDONATION APPLICATION

23. I mentioned earlier that the extent of the delay must have reference to the date on which the dispute arose. It follows, that the next issue is whether the Applicant’s dispute in April 2010 remained in existence, at the time the second referral was made in October 2018. The record in the ELRC condonation application reveals that this is not the case.

24. First, the record reveals that it was not in dispute that the outcome of the conciliation/pre-arbitration process held in April 2010 was the referral of the underlying issue to the Department’s internal grievance procedure. The issue giving rise to the dispute was to be considered afresh, internally. Consequently, there was a settlement of the Applicant’s original dispute, and it became extinct.

25. Second, the Department’s own Circular HRM 58 of 2017 which deals with the policy and procedure for the handling of complaints and grievances clearly draws a distinction between grievances and disputes in paragraph 2 thereof.

26. Moreover, in his heads of argument counsel for the Department made the submission at paragraph 12 that ‘he made no attempt to lodge a new dispute…”. There also is a tacit acknowledgement that the dispute did not arise in April 2010, in the assertion that he ought to have declared a dispute within a reasonable time later in 2010, having lodged the grievance in May 2010, and “accordingly the Applicant’s dispute would have arose (sic) then”.

27. For these reasons, the original dispute that was referred to the Council in April 2010 was extinct. Accordingly, the Applicant referred a new dispute to the council in October 2018. The extent of the delay caused by the late filing of the referral beyond the prescribed

period of 90 days is determined by the date on which the new dispute arose. The Applicant states in the ELRC referral that it is 33 days late, and that the date on which the dispute arose is 23 May 2018. The extent of that delay is to be determined objectively.

28. On 23 May 2018, the Applicant effectively put the Respondent on terms to resolve his grievance and he erroneously considered the dispute to have arisen on that date. The dispute could not have arisen then, having regard to Circular 58 of 2017. This circular expressly states that “Formal grievances have a very limited (30 days) time in which the matter must be handled at whatever level is necessary (including at the MEC level).” The applicant did not receive a response from the Respondent, upon the expiry of the 30-day period on 22 June 2018. Consequently, the dispute arose on 22 June 2018. The prescribed 90-day period within which the dispute was required to be referred, expired on 20 September 2018, based on calendar days. The referral is dated 2 October 2018. Consequently, the actual delay in filing the ELRC referral is 10 days, at most.

29. The extent of the delay is short. The Applicant does not fully explain this delay. He appears to rely on the Department’s eight-year delay in responding to his grievance. Some allowance can be made for the Department’s conduct in continually failing to respond to him. Upon being made aware that he was out of time, he acted immediately and filed an application for condonation on the same day that he made the referral. For these reasons it cannot be said that there is no explanation, nor that he was dilatory.

30. In his referral to the Council, the Applicant described the nature of his dispute to be about the interpretation and application of a collective agreement. In assessing his prospects of success at an arbitration of this dispute, the test applied in Samuels [[4]], is apposite. This test requires the Applicant to set out facts, which if established would result in a successful outcome in the main application.

31. I believe that the Applicant has satisfied this test for two reasons. First, The foundation of his claim for continuity of service rests on the provisions of paragraph 22.1 of the ELRC’s Resolution 7 of 2001. It provides for restoration of continuity of service under prescribed conditions. If the Applicant establishes the interpretation of this Resolution that he contends for, the continuity of his service may well be recognised.

32. Second, after the Applicant lodged a grievance on 27 May 2010, he asserts that the Department investigated the grievance. Soon thereafter, it was recommended that the continuity of the Applicant’s service be restored. The Department is equivocal on this issue in the answering affidavit. An email from the investigator is attached to the record, in support of the Applicant’s version. The Respondent has not at any stage explained why it did not implement the recommendation. For both these reasons, the Applicant has demonstrated that his prospects of success are reasonable.

33. The issue of prejudice remains to be considered. In essence, the Department’s claim of prejudice stems from potential evidentiary constraints it faces in a subsequent arbitration, given the lapse of time. Such constraints are overstated. For example, in its pleadings, it is stated that it could not find records in response to the Applicant’s version of his service history, which is highly material. Yet, the record shows that the Applicant has produced a document which emanates from within the Department and in which details of his service history are recorded.

34. Moreover, the lapse of time that is crucial in this case is the eight or so years during which the Department failed to make known its stance towards the Applicant’s grievance. Its reasons for apparently resisting the outcome sought by the Applicant are unknown. In this context, it is difficult to gauge with any precision, which issues may be in dispute at an arbitration and consequently, the identification of relevant witnesses, at this stage would be speculative. It follows that it is premature for the Department to claim prejudice because employees have departed.

35. On the other hand, the Applicant’s financial prejudice is clearly apparent. He will be eligible to receive considerably larger pension benefits than would be the case had his service been uninterrupted. For these reasons, I find that the balance of prejudice lies in favour of the Applicant.

36. To conclude, given my findings relating to the Applicant’s explanation, his prospects of success and the balance of prejudice, I am disposed to condone the Applicant’s late filing of the referral of his dispute to the ELRC, made on 2 October 2018.

37. In the interests of law and fairness, I am of the view that there be no order as to costs.

ORDER

1. The Applicant’s condonation application for the late filing of the review application is granted.

2. The Second Respondent’s award is hereby reviewed and set aside.

3. The order in that award refusing the grant of condonation for the late referral of the dispute to the Third Respondent is substituted by

“The application for condonation of the late referral of the dispute to the Third Respondent is granted.”

4. The Third Respondent sets down an arbitration to be conducted by an arbitrator appointed by the Third Respondent, other than the Second Respondent, to determine the dispute referred by the Applicant in October 2018.

5. There is no order as to costs.

I Moodley

Acting Judge of the Labour Court of South Africa

For the Applicant: S Kunene: Instructed by Derik Jaftha Attorneys

For the First Respondent: N G Winfred: Instructed by State Attorney (KZN)

[1]. Steenkamp v Edcon Limited [2019] ZACC 17 at paragraph 36.

[2]. Autopax Passenger Services (Pty) Ltd v Transnet Bargaining Council & others (2006) 27 ILJ 2574 (LC) at paragraph 22.

[3]. GoldFields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA [2007] ZALC 66; [2014] 1 BLLR 20 (LAC) at paragraph 20.

[4]. Samuels v Old Mutual Bank [2017] 7 BLLR 681 (LAC) (2017) at paragraph 22