HLB CMA South African Inc v Boshielo and Others (JR244/24) [2024] ZALCJHB 390 (17 September 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JR244/24

In the matter between:

HLB CMA SOUTH AFRICA INC. Applicant And TERRENCE TSHEPO BOSHIELO First Respondent ABNER CHOKWE N.O. Second Respondent COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION Third Respondent

Heard: 10 September 2024

Delivered: 17 September 2024

(This judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be on 17 September 2024.)

JUDGMENT

MYBURGH, AJ

[1] This is an unopposed application to review and set aside a condonation ruling issued by the second respondent (commissioner) in which he condoned the late referral by the first respondent (employee) of his unfair dismissal dispute to the third respondent

(CCMA).

Factual matrix

[2] The employee was employed by the applicant (company), an accounting and auditing firm, as a trainee accountant and was undergoing his SAICA[1] learnership.

[3] The chronology of events is this: (i) on 13 October 2023, the employee was dismissed by the company for misconduct; (ii) on 18 October 2023, the employee consulted a traditional healer (and was allegedly ‘booked off’ until 10 December 2023); (iii) on 12 November 2023, the 30-day CCMA referral period elapsed; (iv) on 21 November 2023, the employee signed a general power of attorney in favour of Labour Law Specialists (LLS) and his CCMA referral, POPI and virtual hearing consent forms (apparently prepared by LLS); (v) on 22 November 2023, the employee engaged in a detailed exchange of emails with the company relating to issues arising from his dismissal; (vi) on 29 November 2023, the employee referred his unfair dismissal dispute to the CCMA; (vii) on 1 December 2023, LLS made a settlement proposal to the company; (viii) on 9 December 2023, the employee again consulted his traditional healer who issued a medical certificate on that day certifying that the employee would be fit for duty on 10 December

2023; and (ix) on 10 January 2024, the employee brought an application for condonation, attached to which was the medical certificate from his traditional healer.

[4] In circumstances where the company opposed the application for condonation in the CCMA (having delivered an opposing affidavit), the matter was heard by the commissioner on 30 January 2024. This culminated in his condonation ruling issued on 12 February 2024.

The condonation ruling

[5] In his condonation ruling, the commissioner dealt with the degree of lateness, the explanation therefor, prospects of success, and prejudice in these four paragraphs:

“[24] In his application for condonation the Applicant stated that he was dismissed on 13 October 2023. The dispute was referred to the CCMA on 29 November 2023. Therefore, the referral was approximately 50 days late. On the other hand, the Respondent

disputed the degree of lateness since in its view it was 89 days late calculating from 13 October 2023 to 10 January 2024 when the Applicant deposed the founding affidavit. However, in my view the delay is substantial based on both parties’

calculations.

[25] In order for an application for condonation to be successful, the application must be accompanied with a compelling reason for the delay. The entire period of the delay must be justified. The Applicant submitted that the delay for the referral was due to medical reasons and submitted medical certificate from the traditional healer in this regard. The Respondent opposed this

application and submitted that the Applicant had access to legal representative to assist him with his rights. The respondent further

questioned the discrepancies on the medical certificate. However, there was no evidence from the Respondent before me to show that it informed the Applicant about his right to refer the dispute to the Commission or Council within 30 days after his dismissal in terms of the LRA. In the circumstances, I am persuaded that the Applicant proffered [an] acceptable reason to justify the delay based on medical reasons.

[26] Regarding prospects of success, the Applicant submitted that his alleged dismissal was substantively unfair since he was a trainee and the alleged charges were based on his learning outcome review and that all ten charges levelled against him were duplicated based on a single learning outcome review incident. This was not disputed. On the other hand the Respondent submitted that since the Applicant was informed of his procedural rights he has no prospects of success. In my view these disputed facts remain to be tested.

[27] As far as prejudice is concerned, the Applicant submitted that the dismissal will prejudice him since it will impact on his SAICA traineeship and the prospect of obtaining future employment.”

[6] The commissioner then concluded that he was persuaded that condonation should be granted.

Is the ruling reviewable?

[7] The commissioner’s ruling is bristling with misdirections and irregularities.

[8] In relation to the degree of lateness, the commissioner was obliged to interrogate the parties’ calculations and determine the precise extent of the delay. If he had done so, he would have realised that the delay was actually 17 days[2] (2 ½ weeks) and that while the application for condonation was made six weeks after the referral, this did not serve to extend the delay in making the referral (and was a separate but related issue).

[9] Regarding the explanation for the delay, in finding that the employee had provided an “acceptable reason to justify the delay”, the commissioner again went wrong. Firstly, he failed to determine the company’s contention that the medical certificate did not book the employee off on 18 October 2023 (onwards) and was effectively backdated on 9 December 2023, with the result that the certificate did not support the employee’s case. Secondly, the commissioner failed to consider that during the key 17-day period (13 to 29 November 2023) the employee – even assuming that the medical certificate supported his case – was not incapacitated to the point that he could not attend to administrative tasks, as demonstrated by the chronology of events set out above (and dealt with further below). Thirdly, the commissioner also ignored the fact that there is no explanation for why the CCMA referral was not lodged on 21 November 2023 (date of signature). Fourthly, the commissioner pulled the proverbial rabbit out of a hat in relying on the company not having informed the employee, at the time of dismissal, of his right to refer a dispute to the CCMA within 30 days, when this was not raised in evidence or argument before the commissioner by the employee, and when it was not his case that he was unaware of the prescribed time period.

[10] Regarding prospects of success, again, the commissioner went wrong in a number of respects. Firstly, neither in his affidavit nor address to the commissioner did the employee raise the splitting of charges issue recorded by the commissioner. (As the deponent to the founding affidavit in the review put it, the commissioner took “creative liberties” in this regard.) Secondly, the commissioner failed to consider the actual basis upon which the employee contended that his dismissal was substantively unfair – his contention having been that while he had been dismissed for falsely stating that there had been an IT security breach, what he had stated “does not meet the definition of [an] IT security breach”.[3] Thirdly, the commissioner was required to determine whether the employee had established prospects of success on a prima facie basis, but failed to do so.

[11] In sum, the commissioner’s ruling reflects an abject failure on his part to get to grips with the matter. He made no finding on the actual degree of lateness; he accepted the employee’s explanation for the delay in the absence of any critical analysis whatsoever and, in part, made up a case for the employee on this score; and he misconstrued the employee’s case on prospects of success and then made no finding on it.

[12] However, in circumstances where the company has brought a reasonableness review, the question which remains is whether – despite the misdirections and irregularities outlined above – the result of the ruling is nevertheless capable of reasonable justification.[4]

[13] To my mind, it is not for these reasons.

a) Although a delay of 2 ½ weeks is not excessive, when reckoned against the 30-day time limit, the employee took more than 50% longer than he ought to have to make his referral – this in the context of an expeditious statutory dispute-resolution system.

b) This obviously required an explanation, which had to be acceptable enough to excuse the default. Expanding on what he had stated in his affidavit, the employee said this in his address to the commissioner:

“I had to consult a traditional healer and he told me to actually undergo … an ancestral calling initiation. … Of which when such things occur, during the days you cannot actually be absent, you cannot actually take leave and come and sort out some other matters, you have to focus on that issue up until the end of the process. … It is the cause of the late application.” (Own emphasis.)

c) No reasonable decision-maker could find this to be an explanation for the delay – let alone an acceptable one – for this reason. Assuming that the employee had undergone the initiation in question from 18 October to 9 December 2023 (and leaving aside the fact that the medical certificate was apparently backdated), the initiation was patently not all consuming, such that he was unable to “sort out some other matters”. This is abundantly clear from, amongst others: (i) the fact that the employee had managed to find and engage LLS; (ii) his dealings with LLS on 21 November 2023; (iii) his detailed email exchange with the company on 22 November 2023 (at 09:09, 10:34, 15:00 and 15:18); and (iv) the lodging of the CCMA referral on 29 November 2023. In fact, it is hard not to draw the conclusion that the employee’s attempt at an explanation may well have been untruthful.

d) To add to this, there is no explanation – let alone an acceptable one – for the delay of eight days between the time of the employee signing his CCMA referral (on 21 November 2023) and its lodging (on 29 November 2023). This is particularly damning given that the referral was delivered by way of email, a simple and quick process.

e) In circumstances where the employee did not provide an explanation (or at very least an acceptable one) for the delay, it would be difficult for his prospects of success at arbitration to make up for this material shortfall. In any event, what he advanced in this regard (see para 10 above) is formalistic and, even if established, would not (as submitted by the company) constitute a defence to the substance of all the charges.

[14] In the circumstances, I am persuaded that the commissioner’s ruling granting condonation was unreasonable.

Order

[15] Accordingly, the following order is made:

1. The second respondent’s condonation ruling is reviewed and set aside.

2. There is no order as to costs.

Myburgh, AJ

Acting Judge of the Labour Court of RSA

Appearances

For the applicant: company’s CHRO

[1] South African Institute of Chartered Accountants.

[2] Having been dismissed on 13 October 2023, the employee had until 12 November 2023 to make his referral, but did so on 29 November 2023 – this being 17 days late.

[3] During September 2023, the employee made a statement in his learning outcome review (sent to SAICA) about the company’s IT system having been “exposed to a risk” that caused the shutdown of the entire network. The employee was charged with a series of charges relating to this statement. Charge 1, which was the charge that the employee briefly addressed the commissioner on, read: “Falsely stating on an official document that an IT security breach took place within the company.” The employee’s (formalistic) case on prospects of success was to the effect that what he had said happened (which he apparently stood by) did not qualify as “an IT security breach”.

[4] Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) (2013) 34 ILJ 2795 (SCA) at para 25.