Elias Motsoaledi Local Municipality v South African Local Government Bargaining Council and Others (JR2776/2019) [2021] ZALCJHB 237 (16 August 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR2776/2019

In the matter between:

ELIAS MOTSOALEDI LOCAL MUNICIPALITY Applicant

and

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL First Respondent

JOSEPH MPHAPHULI N.O Second Respondent

IMATU OBO LEKGOTLA MOFOKENG Third Respondent

NATIONAL BARGAINING COUNCIL FOR THE

LEKGOTLA MOFOKENG Fourth

Respondent

Heard: 6 July 2021

Delivered: 16 August 2021 (In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be on 16 August 2021.

JUDGMENT

REDDING, AJ

[1] The applicant (the Municipality) applies to review and set aside an arbitration award issued by the second respondent (the commissioner)

on 5 November 2019.

[2] The commissioner’s award found that the dismissal of the fourth respondent was substantively unfair and ordered the Municipality to reinstate him on or before 1 December 2019 and compensate him in the sum of R420 000,00, being the fourth respondent’s lost remuneration between the date of his dismissal and the date of his reinstatement.

[3] The review application is brought in terms of section 145(1) of the Labour Relations Act 1995 (the LRA). In terms of section 145(1)(a)

any application to review and set aside an arbitration award made by a commissioner in a bargaining council must be brought within six weeks of the date of the award. The award was made on 5 November 2019 and the application was filed on 20 January 2020. The application ought therefore to have been filed on 19 December 2019. The application was therefore filed four weeks out of time.

[4] The Labour Court is empowered in terms of section 145(1A) to condone the late filing of an application for review under subsection (1) on good cause shown.

[5] It is expected of a party that has failed to comply with prescribed time periods to apply as soon as possible for condonation. The

Municipality failed to do so at the time that the review was launched, but brought a condonation application at the end of May

2020.

[6] The relevant factors to be considered in a condonation application are well known. These include the degree of lateness; the explanation for non-compliance with the time period; the importance of the case, the prospects of success and any prejudice that may be suffered by the other party.

Delay and Explanation

[7] A delay of four weeks is substantial. The explanation for non-compliance with the time periods is that the attorney representing the applicant “erroneously used the dies computation provided for in civil matters under the Magistrates and High Courts, reaching the conclusion that “the Applicant’s

Review Application was only due by 2 February 2020”.

[8] As it is clear that the review application is brought in terms of section 145(1) of the LRA, and that this section itself prescribes

the time for bringing the review application, it is both surprising and unexplained how the attorney “erroneously used the dies computation provided for in civil matters” under the Magistrates Courts Act and the Superior Courts Act. How the error

came about is simply not explained.

[9] In my view, therefore, the delay is substantial and the explanation inadequate. The Municipality bears a heavy burden to establish that its prospects of success in the review application are good.

Prospects of Success

[10] The review application was brought on the basis that the commissioner committed a gross irregularity in the conduct of the arbitration

proceedings first by refusing to permit the Municipality to be represented by its representative, Mr Mahlakwana, then secondly

refusing the Municipality’s application for a postponement of the hearing and making an award in the absence of the Municipality.

[11] The refusal to permit Mr Mahlakwana to represent the Municipality is an alleged error of law. The refusal of the postponement is an alleged erroneous exercise of a discretion. There is no challenge to the reasonableness of the award reached by the commissioner on the merits in the absence of the Municipality.

[12] THE The Municipality confirmed at the hearing that it did not persist in the first ground of review of the decision to refuse representation.

The Municipality’s review therefore stands or falls of its complaints regarding the commissioner’s decision to refuse a postponement.

[13] The facts pertaining to the postponement application are the following:

13.1. The fourth respondent (the employee) was dismissed on 27 November 2018.

13.2. He referred a dispute concerning the fairness of his dismissal to the Bargaining Council and it was conciliated on 10 January 2019. At the conciliation the Municipality was represented by Ms B. Mphahlele.

13.3. The matter was set down for arbitration for 18 September 2019. On that day Ms Mphahlele indicated that the Municipality was not ready to proceed with the arbitration and requested that the matter be postponed to another date. The arbitration was postponed by agreement to 29 October 2019 with the specific agreement that it was a final postponement.

13.4. On 29 October 2019 the Municipality was represented by Mr Mahlakwana.

[14] The South African Local Government Bargaining Council which has jurisdiction in respect of the dispute has issued rules regarding the conduct of conciliation and arbitration proceedings contained in Circular 05/2019. Rule 25(1) reads as follows:

“(1)(a) In conciliation proceedings a party to the dispute may appear in person or be represented only by –

(i) if the party is an employer, a director or employee of that party…

(ii) any member of that party’s registered trade union or registered employer’s organisation or an office bearer or official as defined in the Act…”

[15] Subrule (b) provides that in arbitration proceedings a party to the dispute may appear in person, or be represented only by (1) a legal practitioner, (2) a candidate attorney, or (3) “an individual entitled to represent the party at conciliation proceedings in terms of sub-rule (1)(a)”.

[16] At the commencement of the arbitration before the commissioner the Municipality was represented by Mr Mahlakwana who was employed as the Labour Relations Officer of another municipality, the Ephraim Mogale Local Municipality. Both the Municipality and the Ephraim Mogale Local Municipality are members of the South African Local Government Association (SALGA) which is an employer’s organisation

representing employers in local government. Mr Mahlakwana was also duly appointed provincial dispute initiator for SALGA in the Limpopo province.

[17] The commissioner considered that Mr Mahlakwana was not a legal practitioner, candidate attorney nor an individual entitled to represent an employer party at conciliation proceedings in terms of subrule (1)(a). This was because he was not an employee of the Municipality, nor an office bearer or official of SALGA.

[18] Having found that Mr Mahlakwana could not represent the Municipality the commissioner asked the parties to address him on the further conduct of the dispute. Mr Mahlakwana submitted the matter should be postponed. This was opposed. The commissioner refused the

postponement.

[19] The reason for refusing the postponement given by the commissioner was that the Municipality ought to have been aware that Mr Mahlakwana had no right to represent employees at arbitrations. The Rules, he said, were common knowledge within local government institutions throughout the country. The Municipality had received sufficient opportunity to appoint an appropriate representative. He also considered that the dismissal had happened more than a year before and that a delay ran contrary to the principle of the speedy resolution of employment disputes.

[20] The Municipality alleges that it could not secure the attendance of any other representatives at short notice. However, it does not answer the point made by the Commissioner that it ought to have known that the representative selected was not authorised to represent it in the arbitration proceedings. The commissioner inferred that the predicament of the Municipality was of its own making.

[21] The principles applicable to applications for postponement are well known (see Insurance and Banking Staff Association and Others v SA Mutual Life Assurance Society (2000) 21 ILJ 386 (LC) at 394; Fundi Projects and Distributors (Pty) Limited v CCMA and Others (2006) 27 ILJ 1136 (LC) and Wade Walker (Pty) Limited v CCMA and Others (2017) 38 ILJ 2842 (LC)). The main issue to be considered is the issue of prejudice.

[22] In the present case the Commissioner clearly had regard to the fact that the expeditious resolution of the dispute was being hampered by the Municipality failing to take steps to be ready to conduct the arbitration. The Municipality has considerable resources available to it, not least the assistance of a substantial employer’s organisation in the shape of SALGA. When the Municipality agrees that there will be no further postponements, a further application for a postponement on a flimsy basis does not indicate good faith.

[23] Against that, the prejudice to an employee being denied redress for an alleged unfair dismissal is manifest. The record does not reveal that the Municipality put before the Commissioner any grounds upon which he could measure any prejudice to the Municipality. There was no indication that the Municipality had a bona fide defence to the unfair dismissal claim.

[24] I cannot find in the circumstances that the Commissioner failed to exercise his discretion judicially. He did not misconceive the nature of the enquiry, nor could it be said that he acted unreasonably in refusing the postponement. I conclude, therefore, that the Municipality’s prospects of success in review proceedings against the decision are weak.

Conclusion

[25] In the circumstances, there does not appear to be a sound basis upon which I should exercise my discretion to grant condonation for the Municipality’s non-compliance with the provisions of section 145(1) of the LRA. Condonation is refused. The application for review is accordingly dismissed. There is no order as to costs.

[26] In the premises I make the following order:

Order

1. The condonation application is refused;

2. The application for review is accordingly dismissed;

3. There is no order as to costs

A Redding

Acting Judge of the Labour Court of South Africa

Appearances:

On behalf of the Applicant:

Instructed by:

On behalf Respondent: