Carter v Commission for Conciliation, Mediation and Arbitration and Others (P 229/2009) [2010] ZALC 91; (2010) 31 ILJ 2876 (LC) (23 March 2010)

Carter v Commission for Conciliation, Mediation and Arbitration and Others (P 229/2009) [2010] ZALC 91; (2010) 31 ILJ 2876 (LC) (23 March 2010)

The court found that the commissioner failed to properly assess the reasonableness of the applicant's explanation for the delay, having ignored the context of the ongoing internal appeal and the applicant's bona fide belief that the appeal was pending. The commissioner measured the explanation against an incorrect timeframe, disregarding the statutory provision that the referral period runs from the final decision on dismissal. Furthermore, the commissioner failed to apply her mind to the possible alternative meanings of the contentious language, resulting in a prejudgment of the merits and denying the applicant a fair hearing. The commissioner also misunderstood the importance of the...

Citation
[2010] ZALC 91
Parties
Applicant: Alexander Frederick Carter; Respondent: Commission for Conciliation, Mediation & Arbitration; Respondent: Commissioner Y Grootboom N.O.; Respondent: Telkom SA (Pty) Ltd
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
23 March 2010
Case Number
P 229/2009
Procedural Posture
Review Application / Judgment on Review of Condonation Ruling
Outcome
The review application succeeds; the condonation ruling is set aside and condonation for late referral is granted.
Judges
Lagrange
Legal Topics
Condonation, Late Referral, Unfair Dismissal, Internal Appeal, Racist Language, Prospects of Success
Labour Law Civil Procedure Condonation Late Referral Unfair Dismissal Internal Appeal Racist Language Prospects of Success

Case Brief

Summary, issues, holding and outcome

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Parties

Alexander Frederick Carter

Applicant

Commission for Conciliation, Mediation & Arbitration

Respondent

Commissioner Y Grootboom N.O.

Respondent

Telkom SA (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment on Review of Condonation Ruling

Legal Issues

  1. 1 Whether the commissioner erred in dismissing the applicant's condonation application for late referral of his unfair dismissal dispute.
  2. 2 Whether the explanation for the delay in referral was reasonable in the context of ongoing internal appeal proceedings.
  3. 3 Whether the commissioner properly considered the prospects of success and the importance of the case.

Ratio Decidendi

The court found that the commissioner failed to properly assess the reasonableness of the applicant's explanation for the delay, having ignored the context of the ongoing internal appeal and the applicant's bona fide belief that the appeal was pending. The commissioner measured the explanation against an incorrect timeframe, disregarding the statutory provision that the referral period runs from the final decision on dismissal. Furthermore, the commissioner failed to apply her mind to the possible alternative meanings of the contentious language, resulting in a prejudgment of the merits and denying the applicant a fair hearing. The commissioner also misunderstood the importance of the...

Court Disposition

The review application succeeds; the condonation ruling is set aside and condonation for late referral is granted.

Orders

  • The second respondent's condonation ruling of 8 April 2009 in case number ECPE 461-09 is reviewed and set aside.
  • The applicant's condonation application for the late referral of his dismissal dispute to the CCMA is granted.