Govender v General Service Sectoral Bargaining Council and Others (D2226/2018) [2022] ZALCD 38 (26 August 2022)

Govender v General Service Sectoral Bargaining Council and Others (D2226/2018) [2022] ZALCD 38 (26 August 2022)

The applicant failed to provide a full, reasonable, and convincing explanation for the delay in filing the review application, with significant periods left unexplained and no corroborating evidence. The prospects of success in the review were poor, as the arbitrator's findings on credibility and probabilities were reasonable and supported by consistent evidence, including corroboration of the complainant's version and expert testimony. The applicant's lack of remorse and failure to appreciate the gravity of the misconduct further justified the sanction of dismissal. In the circumstances, the interests of justice were not served by granting condonation, and the application was refused.

Citation
[2022] ZALCD 38
Parties
Applicant: Velayuthan Kisten Govender; Respondent: General Service Sectoral Bargaining Council; Respondent: Nkosinathi Mkhize N.O.; Respondent: MEC for Transport KwaZulu-Natal Provincial Government
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
26 August 2022
Case Number
D2226/2018
Procedural Posture
Review Application / Condonation Application for Late Filing of Review; Merits of Review Considered for Condonation.
Outcome
Condonation for the late delivery of the applicant's review application is refused. No order as to costs.
Judges
Allen-Yaman
Legal Topics
Condonation for Late Filing, Review of Arbitration Award, Sexual Harassment, Dismissal for Misconduct, Credibility Assessment, Prospects of Success
Labour Law Civil Procedure Condonation for Late Filing Review of Arbitration Award Sexual Harassment Dismissal for Misconduct Credibility Assessment Prospects of Success

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Parties

Velayuthan Kisten Govender

Applicant

General Service Sectoral Bargaining Council

Respondent

Nkosinathi Mkhize N.O.

Respondent

MEC for Transport KwaZulu-Natal Provincial Government

Respondent

Procedural Posture

Review Application / Condonation Application for Late Filing of Review; Merits of Review Considered for Condonation.

Legal Issues

  1. 1 Whether condonation should be granted for the late filing of the review application.
  2. 2 Whether the applicant has provided a reasonable explanation for the delay.
  3. 3 Whether the applicant enjoys reasonable prospects of success in the review of the arbitration award.

Ratio Decidendi

The applicant failed to provide a full, reasonable, and convincing explanation for the delay in filing the review application, with significant periods left unexplained and no corroborating evidence. The prospects of success in the review were poor, as the arbitrator's findings on credibility and probabilities were reasonable and supported by consistent evidence, including corroboration of the complainant's version and expert testimony. The applicant's lack of remorse and failure to appreciate the gravity of the misconduct further justified the sanction of dismissal. In the circumstances, the interests of justice were not served by granting condonation, and the application was refused.

Court Disposition

Condonation for the late delivery of the applicant's review application is refused. No order as to costs.

Orders

  • Condonation for the late delivery of the applicant’s application to review and set aside the arbitration award under GPBC2390/2016 is refused.
  • There is no order as to costs.