Kekana v South African Social Security Agency Limpopo and Others (JR 1284/2017) [2022] ZALCJHB 47 (2 March 2022)

THE LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

Not reportable

CASE NO: JR 1284/2017

In the matter between:

KEKANA, NKGETHENG ISAIAH

Applicant

and

SOUTH AFRICAN SOCIAL SECURITY AGENCY

LIMPOPO

First Respondent

COMMISSIONER T MONAH N.O.

Second Respondent

COMMISSION FOR CONCILIATION MEDIATION

AND ARBITRATION

Third Respondent

Date enrolled: 2 March 2022. By agreement, matter decided in Chambers

Date of judgment: 2 March 2022

JUDGMENT

VAN NIEKERK J

[1] The applicant seeks to review and set aside a ruling issued by the second respondent (the commissioner). In her ruling, the commissioner refused to condone the late referral of a dispute concerning an alleged unfair labour practice. The review application was filed outside of the time limits prescribed by section 145 of the LRA. The applicant has sought condonation for the late filing in circumstances where the delay is not excessive and the explanation for the delay satisfactory. Condonation for the late filing of the present application is thus granted.

[2] The ruling under review records the applicant’s contention that he was subjected on 27 March 2017, 147 days late. In his referral, the applicant contended that he had been subjected to an unfair labour practice. His summary of the facts states ‘Expired annual leave days and performance assessments for the period 2015/2016 and 2016/2017 while subjected to a suspension’. The commissioner accepted the applicant’s explanation for the delay (an explanation that centered on ‘the internal process’) but held that the delay was ‘quite substantial’ and the remedy sought not within the jurisdictional scope of the CCMA. The commissioner records that the applicant was seeking to have leave days forfeited while on suspension reinstated, or the value of that leave paid out. Further, the applicant sought to have his performance rating reviewed from average to excellent for the period of his suspension. The commissioner came to the following conclusion:

8. The applicant is seeking to have the leave days he forfeited while he was on suspension, as per the respondent’s policy, reinstated or paid for by the respondent. He further wants his performance rating for the duration of his suspension reviewed from the average performance to excellent performance, when he did not do any work. In the absence of good prospects, granting his application is unlikely to change his fate stop I’m therefore not convinced by the applicant’s prospects to succeed in its claim.

9. Having considered all the factors in an interrelated manner; it is my finding that the applicant has failed to show good cause for me to grant this application

10. The application for condonation is hereby denied.

11. The commission has no further jurisdiction over the dispute.

[3] In these proceedings, the applicant does not dispute the commissioner’s ruling in relation to that part of his dispute that concerns leave days and leave pay. In respect of the that part of the dispute which

concerns his performance rating, contends that the ruling is reviewable because the commissioner failed to consider the principle

of conditio sine qua non, culminating in a wrong finding.

[4] The applicant was suspended from work for a year and a few weeks. The issue of annual leave aside, the consequence of the applicant’s suspension was that he was afforded a rating of 3 (average) in terms of the first respondent’s performance management policy. The applicant points to the first respondent’s disciplinary policy,

informed by PSCBC Resolution 1 of 2003, which places a limit on the period of suspension before any disciplinary hearing must be

convened. Despite the grandiose label attached to the applicant’s primary submission, in essence, the applicant submits that had the first respondent applied the disciplinary policy, the direct and adverse effect on his performance management cycle would have been avoided. Put another way, the applicant contends that the averaging rating afforded him was the direct consequence of the first applicant’s failure to comply with its own policy, to his potential financial detriment.

[5] While I appreciate that the remedy initially sought by the applicant in relation to his annual leave is, as the commissioner put it, ‘not within the jurisdiction of the commission’, matters are not as

clear in relation to what the applicant contends is an unfair labour practice in respect of the benefit, being the average rating he was afforded in terms of the performance management policy. It may well be that any financial incentive payable in terms of a performance assessment constitutes a benefit for the purposes of the definition of an unfair labour practice, but for present purposes, I make my finding on that issue. While it is also true, as the commissioner observes, that the applicant was afforded an average rating in circumstances where he had not been performing the work, the essence of his point is that it was the unlawful conduct of the first respondent that precluded him from performing work, and that he should not be prejudiced as a result. In short, to the extent that the commissioner’s ruling was based on an assumption to the effect that the remedy sought by the applicant in relation to his dispute concerning the application of the performance management policy was not competent, I am not persuaded that that is necessarily the case. Section 193 (4) provides that an arbitrator may determine an unfair labour practice dispute on terms that the arbitrator deems reasonable. That is a broad remit and enables arbitrators to craft remedies appropriate to the nature of the dispute.

[6] In short, the applicant’s prospects of success are perhaps not as hopeless as the commissioner thought them to be, and to the extent that the view adopted by commissioner’s view effectively closes the door to the statutory dispute resolution process on the applicant, her decision falls outside of a band of decisions to which a reasonable decision-maker could come on the available evidence. There is little point in remitting the matter for rehearing. There has been a substantial delay in determining this dispute, and an order of substitution will further the statutory purpose of expeditious dispute resolution.

I make the following order:

1. The ruling issued by the second respondent on 28 April 2017 under case number LP 61 – 17 is reviewed and set aside.

2. The ruling is substituted by the following:

‘Condonation for the late referral of the applicant’s dispute is granted’.

André van Niekerk

Judge of the Labour Court of South Africa