Department of Public Works, Roads and Infrastructure, Limpopo Province v Matsobane and Others (JR1415/20) [2021] ZALCJHB 401 (20 October 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, POLOKWANE

Not Reportable

CASE NO: JR 1415/20

In the matter between:

DEPARTMENT OF PUBLIC WORKS, ROADS

AND INFRUCTRUCTURE, LIMPOPO PROVINCE Applicant

And

MAKHAFOLA FRANS MATSOBANE First Respondent

GENERAL PUBLIC SERVICE SECTORIAL

BARGAINING COUNCIL Second Respondent

D P VAN TONDER Third Respondent

Date heard: In chambers

Date Delivered: 20 October 2021

JUDGMENT

MANGENA AJ

[1] The Department of Public Works, Roads and Infrastructure, Limpopo seeks to review a condonation ruling made by the third respondent in case number PSGA 1599 under the auspices of the second respondent.

[2] The Department dismissed the first respondent from its employ on 05 February 2001 following a disciplinary hearing for misconduct on fraudulent travelling claims. The employee appealed and the outcome was communicated to him on 01 March 2001 that the appeal has been unsuccessful.

[3] The employee referred an unfair dismissal dispute to the Bargaining council on 01 June 2001, which period was outside the 30 days. The referral was not accompanied by the condonation application despite the fact that the employee had the services of an attorney.

[4] The matter was scheduled for conciliation on 12 October 2001 and the Department raised a jurisdictional issue that the referral was made late and in the absence of condonation application, the council did not have jurisdiction to conciliate or arbitrate.

[5] On the 15 October 2001, the attorneys wrote a letter to the council in which they pleaded for condonation but still failed to attach an affidavit as well as the correct forms in support of the condonation. The affidavit was only filed with the council in 2003. Since the filing of the affidavit, the matter never received any further attention until May 2014 when a new referral form was made by the employee’s attorneys of record. In the new referral form, it is stated that the delay is 13 years late.

[6] The employee does not explain what he has been doing since the submission of the affidavit for condonation other than that his attorneys were struck off the roll. Whilst it is accepted that the removal of the attorneys from the roll may have contributed to the delay, it was incumbent upon the employee to clearly set out the steps he took in an effort to retrieve the file and have the matter proceeded with. In the absence of any evidence proving the steps taken, the inference

is inescapable that he did not do anything to pursue the matter. Any finding to the contrary, will be unreasonable as it is not based on facts but conjecture and speculation.

[7] The third respondent decided the condonation ruling on papers on 27 January 2020. It is not clear on the papers whether the Department had filed papers in opposition of the condonation except that the issue was raised in the pre-arbitration hearing. The arbitrator considered the submissions by the employee and arrived at a decision that condonation is granted.

[8] The Department attacks the ruling on the basis that it is not underpinned by the principles of fairness and the need for expeditious resolution of labour disputes. The Department decries the fact that the arbitrator failed to take into account the serious prejudice that it will suffer as a result of the delay in prosecuting the arbitration. It is submitted that 19 years have lapsed since the employee was dismissed and there are no witnesses available to assist in the prosecution of the matter and it may not be feasible to locate the relevant documentation. It is contended that had the arbitrator considered this aspect, he wouldn’t have arrived at the ruling he made.

[9] The Department further argues that it was not offered an opportunity to make representation to the arbitrator regarding the condonation. The failure to grant them an opportunity to make representation when they have raised a jurisdictional point constitutes a reviewable irregularity in the conduct of the proceedings.

[10] The test for condonation is trite. The applicant for condonation needs to set out a full explanation for failing to comply with a statutory provision or the Rules of court. The explanation must account for the full duration of the delay. In the absence of a full and satisfactory explanation, the prospects of success are immaterial, and without good prospects, no matter how good the explanation for delay an application for condonation should be refused.

[11] The arbitrator concluded that there are prospects of success in the matter because he believed that the sanction of dismissal was too harsh. This was clearly an error as the employer has the prerogative to determine an appropriate sanction for a misconduct committed by an employee. The issue of sanction does not go to the merits of the case. The employee was found guilty of having committed fraud in the workplace and this has an element of dishonesty. Once fraud is proved, the trust relationship is taken to have broken and there is no duty on the employer to lead evidence on the appropriateness of the dismissal.

[12] The arbitrator has also failed to consider the prejudice the Department is likely to suffer if the matter were to proceed 19 years since the employee was dismissed. The employee is an author of his own misfortune and has in all fairness failed to give a satisfactory explanation for the delay he took in referring the dispute to the council. The period of 13 years is excessive and in the absence of a satisfactory explanation and accurate explanation, prospects of success even if good are immaterial. To grant a condonation in case like this will be contrary to the spirit of Labour Relations Act which is to promote a speedy resolution of disputes. The ruling by the arbitrator is therefore unreasonable and falls to be reviewed and set aside.

[13] It is ordered that:

Order:

1. The condonation ruling by the third respondent in case number PSGA 1599 is reviewed and set aside and substituted with the following:

Condonation for the late referral of the dispute is refused.

2. No order as to costs.

M. I. Mangena

Acting Judge of Labour Court of South Africa

Appearances:

For the Applicant: State

Attorney

For the First Respondent: Khohlishi Abie Mamabolo Inc