Ekurhuleni Metropolitan Municipality v South African Local Government Bargaining Council and Others (JR1025/15) [2021] ZALCJHB 454 (14 December 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 1025/15

In the matter between:

EKURHULENI METROPOLITAN MUNICIPALITY Applicant

and

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL First

Respondent

M M LEGODI N.O Second

Respondent

SOUTH AFRICAN MUNICIPALITY WORKERS

UNION OBO MAHALI JEMINAH KUTWANA Third

Respondent

Heard: 09 July 2021

Delivered: 14 December 2021

JUDGMENT

PHAJANE, AJ

Introduction

[1] This application is brought in terms of section 158(1)(g) of the Labour Relations Act[1] (the LRA) read with section 145 to review and set aside a condonation ruling issued by the second respondent (the Commissioner) under case number GPD 0711404, in terms of which the Commissioner refused to condone the late serving of the charge sheet on Ms. Mahali Jeminah Kutwana (the employee). The third respondent opposes the relief sought by the applicant.

The relevant factual background

[2] On 3 July 2014 the applicant made an application to the South African Local Government Bargaining Council (SALGBC) as contemplated in the Collective Agreement[2] entered between the parties to condone the late issuing of the charge sheet in order to commence with the disciplinary enquiry against the employee.

[3] In terms of the Collective Agreement, the Employer shall proceed with the disciplinary enquiry not later than three months from the date upon which the Employer became aware of the alleged misconduct. Should the Employer fail to proceed within the period stipulated and still wish to pursue the matter, it shall apply for condonation to the relevant division of the SALGBC.

[4] The matter was set down for a hearing on 22 September 2014 and in terms of the Commissioner’s ruling which was reduced to writing and signed by both parties on the same day, the Commissioner recorded the following:

4.1 The parties agree for the suspension to be uplifted from 29 September 2014;

4.2 Condonation is granted; and

4.3 Applicant to serve charge sheet on the respondent no later than 15 October 2014.

[5] The applicant contends that it received a typed ruling on 15 October 2014 upon enquiry from the deponent to the founding affidavit. The third respondent contends that on 23 September 2014, the deponent to the answering affidavit personally telephoned deponent to the founding affidavit to ascertain if he had received the typed ruling, which the latter confirmed having received the ruling. The typed ruling is also dated 22 September 2014. The typed version of the ruling dated 22 September 2014 is a mirror of the handwritten ruling.

[6] On 29 September 2014, the employee’s suspension was uplifted, and she returned to work. However, a charge sheet was only served on the employee on 24 October 2014.

[7] There was an attempt by the applicant to commence with the disciplinary enquiry on 31 October 2014, but the chairperson was not available therefore matter was postponed to 21 November 2014. However, on 17 November 2014 the third respondent brought an urgent application to this Court to interdict the disciplinary enquiry. The details of the urgent application are irrelevant for current purposes. The applicant also proceeded to launch a ‘second condonation application’ in the SALGBC, in respect of the late issuing and charging of the employee, i.e., 24 October 2014 and not 15 October 2014.

[8] The second condonation application was heard on 22 April 2015 and on 24 April 2015 the Commissioner issued a ruling in terms of which condonation was refused. It is this ruling which is sought to be reviewed and set aside.

The test for the grant of condonation

[9] The relevant legal principles which are to be applied in an application for condonation, are well established. The court or relevant tribunal has a discretion, which must be exercised judicially on a consideration of the facts of each case and in essence it is a matter of fairness to both sides.

[10] Condonation for delays in all labour law litigation is not simply there for the taking. The starting point is that an applicant in an application for condonation seeks indulgence and bears the onus to show good cause.

[11] In Melane v Santam Insurance Co Ltd[3] it was held that:

“… among the factors usually relevant, are the degree of lateness, the explanation therefore, the prospects of success and the importance of the case. Ordinarily these facts are interrelated, they are not individually decisive… what is needed is an objective

conspectus of all the facts”.

[12] It is within this context that an application for condonation stands to be determined.

Grounds for review

[13] In summary, the grounds of review are that the Commissioner committed material errors of fact and of law, alternatively the decision is not rationally connected to the information before the Commissioner, the Commissioner took into account irrelevant considerations and failed to take into account relevant considerations. In my view, there is no merit to the applicant’s grounds of review.

[14] In as far as the applicant is relying on an error of fact and law, the applicant contends that the period of delay was only 8 days and that the additional period of delay was an irrelevant consideration. The Commissioner is said to have failed to apply her mind in that regard.

[15] Next, the applicant contends that the Commissioner failed to take a proper consideration of the explanation it provided for the late issuing of the charge sheet which was that the applicant was waiting for a formal ruling before it could charge the employee. The applicant contends that it received a formal ruling on the same day that they were directed to charge the employee on.

[16] The applicant also contends that the Commissioner committed a material error of fact in that the Commissioner stated in the ruling that in her view the applicant had not made out a reasonable argument for prospects of success because the South African Police Services (SAPS) investigated the employee and found no collusion by the employee, whereas there was no evidence to the effect that SAPS was involved.

[17] Lastly, the applicant contends that the Commissioner failed to take into account relevant considerations in that in her ruling, the Commissioner makes no mentioned of her having considered that the applicant suffered a loss of R200 000.00 in public funds due to an incident of robbery which the applicant believe the employee was involved in.

Legislative Framework

[18] The applicable review test is whether, on a totality of evidence before him or her, “is the decision reached by the commissioner one which a reasonable decision maker could not reach?[4] The decision must be determined objectively by the review Court.[5]

Analysis

[19] Turning to the consideration of the applicant’s review grounds, I must state, from the outset that I agree that the period of delay between 15 October 2014 when the applicant was directed to serve the charge sheet on the employee and 24 October 2014 when the applicant did eventually serve the charge sheet on the employee is indeed 8 days. The Commissioner says so herself in her ruling that “… instead the charge sheet was served on her on 24 October 2014, some 9 days after the agreed date…”.

[20] It is evident from her ruling that the Commissioner was well aware of the correct period of delay [notwithstanding her calculation of 9 days]. Apart from the applicant’s argument that it was not obliged to act on the handwritten ruling which the applicant acknowledged on 22 September 2014 and signed for, there was no explanation for the delay. Thus, there is no mistake of fact or law committed by the Commissioner.

[21] What the Commissioner did, however, was to demonstrate the further period that it took for the applicant to seek condonation in respect of the late service of the charge sheet on 24 October 2014 because the applicant only applied for condonation on 27 January 2014 despite knowing at least on 15 October 2014 that service of the charge sheet was out of the agreed period. The same way that I can point out that the applicant did not pursue this review application for four (4) years after it was first initiated, thus causing further delays in charging the employee.

[22] Similarly, the contention that the Commissioner failed to take a proper consideration of the explanation which the applicant provided for the late issuing of the charge sheet, which was that the applicant was waiting for a formal ruling before it could charge the employee In fact, the Commissioner deals with this aspect in detail. The Commissioner states in her ruling that the document at page 33[6] (the handwritten ruling) was written by the Arbitrator, and that the other terms of the handwritten ruling was not denied by the

applicant.

[23] The handwritten ruling which was acknowledged and signed for by both parties to the proceedings, was partly complied with by the applicant. In other words, the applicant accepted that condonation was granted in its favour and also, the applicant uplifted the suspension of the employee on 29 September 2014 as contemplated in the handwritten ruling. The applicant did not wait for what the applicant calls the official ruling. In my view, the applicant’s contention in this regard is disingenuous.

[24] In an attempt to overcome the above-mentioned problem, the applicant further argues that it was aware that condonation was resolved, that the suspension of the employee was to be uplifted but that it was waiting for a formal ruling on when the applicant was to charge the employee[7]. The applicant’s argument is contrived. It is not clear to me why on the applicant’s version would the granting of

condonation be acceptable on a handwritten ruling, but it would require a formal ruling to give a directive on the date on which the applicant must charge the employee. The applicant failed to charge the employee on 15 October 2014 in accordance with the first

condonation ruling and there is no good cause shown for this failure.

[25] In as far as the applicant is relying on another material error of fact, the applicant also contends that the Commissioner committed a material error of fact in that the Commissioner stated in the ruling that in her view the applicant had not made out a reasonable argument for prospects of success because the South African Police Services (SAPS) investigated the employee and found no collusion by the employee, whereas there was no evidence to the effect that SAPS was involved.

[26] In Herholdt v Nedbank Limited[8], the SCA held that errors of fact will give rise to a gross irregularity if they cause a commissioner to misconceive the nature

of the inquiry or his or her duties in connection therewith or produce an unreasonable outcome. And in Head of the Department of

Education Mofokeng and Others, the LAC followed Herholdt in finding that an error of fact would give rise to a gross irregularity only if it resulted in a misconceived inquiry or an unreasonable award.[9]

[27] In the Commissioner’s ruling, there is a mention of SAPS, probably because in their papers the applicant alleges that Ekurhuleni Metro Police (EMP) investigated the robbery which occurred at their offices. It is an error of fact that SAPS was involved however; it is not material to the determination of the dispute. Ultimately, it is trite that the factors to be taken into account when deciding on condonation are not individually considered.

[28] Lastly, the applicant contends that the Commissioner failed to take into account relevant considerations in that in her ruling, the Commissioner makes no mentioned of her having considered that the applicant suffered a loss of R200 000.00 in public funds due to an incident of robbery which the applicant believe the employee was involved in. Firstly, in the context of arbitration awards only having to contain brief reasons[10], it cannot simply be inferred that because a Commissioners does not explicitly record a particular fact in the ruling that she did not consider it[11]. It may just be that the Commissioner considered it and decided to resolve the matter on a different basis.[12]

[29] In this matter, it is evident that whilst the Commissioner did not specifically refer to the R200.000.00. that was lost during the robbery which occurred at the applicant’s premises, the Commissioner did apply her mind to the issue of prejudice to both parties. In this regard, the Commissioner states in her ruling that the applicant argued that it would send a wrong message to other employees and the public in general if condonation is not granted so that it can proceed with the disciplinary enquiry against the employee. The respondent on the other hand argued that the delay was caused by the applicant and that the employee was entitled to closure. The Commissioner then concluded that it would not serve the interest of justice to grant condonation. Accordingly, the contention that the Commissioner did not apply her mind to the relevant issues is without a basis.

[30] Viewed cumulatively, it is evident that the Commissioner considered the four relevant factors and found that there was no explanation for the delay, there were no good prospects of success and that it would not be in the interest of justice to grant condonation, bearing in mind that the employee would effectively be disciplined for a misconduct which allegedly occurred in 2014.

Conclusion

[31] Accordingly, I find that there is no basis to interfere with the Commissioner’s ruling. The ruling is one which a reasonable commissioner could have reached based on the material before her.

[32] The employee still has an employment relationship with the applicant. I do not consider a cost order appropriate in the circumstances.

Order

[33] In the circumstances, the following order is made:

1. The application for review is dismissed.

GK Phajane

Acting Judge of the Labour Court of South Africa

Appearance

For the Applicant: A F Van Wyk of A F Van Wyk Attorneys

For the Respondent: Galaletsang Phakedi of Phakedi Attorneys

[1] 66 of 1995, as amended.

[2] Index Volume 1, page 38, paragraph 6.3

[3] 1962 (4) SA 531 (A)

[4] Sidumo and Another v Rustenburg Platinum Mines Ltd and others [2007] 12 BLLR 1097 (CC)

[5] Fidelity Cash Management Services v CCMA and others [2008] 3 BLLR 197 (LAC)

[6] The handwritten ruling

[7] Founding Affidavit, paragraph 30

[8] [2013] 11 BLLR 1074 (SCA)

[9] [2015] 1 BLLR 50 (LAC) paragraphs 32-33

[10] LRA s138(7)(a)

[11] County Fair Foods (Pty) Ltd v CCMA & others [1999] 11 BLLR 1117 (LAC) paragraph 47

[12] Telcordia Technologies Inc v Telkom SA [2006] ZASCA 112; 2007 (3) SA 266 (SCA) paragraph 125