Kgatlesi v Phunsu and Others (JR1976/20) [2024] ZALCJHB 258 (9 July 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 1976/20

In the matter between:

KGATLEDI JOHANNES MAIBELO

Applicant

and

COMMISSIONER PAUL PHUNDU

First Respondent

BARGAINING COUNCIL FOR THE FOOD RETAIL,

RESTAURANT, CATERING & ALLIED TRADES Second Respondent

McDONALD – PTA WEST

Third Respondent

Heard: 26 June 2024

Delivered: 9 July 2024

JUDGMENT

MADDERN, AJ

Introduction

[1] This is a review application in terms of section 145 of the Labour Relations Act[1] (LRA) for an order reviewing and setting aside of the arbitration award dated 22 October 2020, issued by the First Respondent (the Commissioner) in terms of which the First Respondent determined that the dismissal of the Applicant, Mr Kgatledi Johannes Maibelo was substantively fair.

[2] The Third Respondent, the former employer opposes the application.

Background Facts

[3] The Third Respondent conducts business as a well-known restaurant which employed the Applicant as a restaurant manager, a position which the Applicant had held for 12 years prior to his dismissal.

[4] The Applicant, as the restaurant manager, was responsible for the overall running of the restaurant and was also responsible for the shift managers and staff below the shift managers. The Applicant was responsible for the upholding and compliance by all of the Third Respondent’s employees with the Third Respondent’s policies, procedures and practices.

[5] The Applicant was dismissed following a disciplinary hearing which determined allegations of misconduct formulated as follows:

Charge 1: Gross Negligence / and food Safety violation in that you deliberately served expired Buns to customers on the 16th of April 2019.

Charge 2: Gross Dereliction of Duties in that you failed to follow company procedure with regard to expired stock.

Charge 3: Failure to follow company’s policies and procedures as a result of your actions.

[6] The Applicant was found, after a disciplinary hearing, to have committed the misconduct complained of and was dismissed. The Applicant then, aggrieved by his dismissal, referred a dispute to the Second Respondent, as a consequence of which an arbitration hearing was then conducted by the Frist Respondent as the commissioner on 13 December 2019, 21 July 2020 and 15 August 2020.

[7] On 22 October 2020, the First Respondent issued an arbitration award (the award) in terms of which:

“Award

(33) The dismissal of the Applicant, Mr Johannes Maibelo, was substantively fair.

(34) The Applicant is not entitled to any relief.

(35) The Applicant’s referral is dismissed.”

[8] The Applicant launched an application to review the award of the First Respondent on various grounds pursuant to the provisions of section 145 of the LRA.

[9] In relation to this review application, it is apparent that although the award of the First Respondent was dated 22 October 2020, the Second Respondent sent the award to the Applicant on 2 November 2020[2]. The application for review is signed by the Applicant’s attorneys of record, Carrim Attorneys and reflects that it was dated

14 December 2020. The Third Respondent disputes proper service of the application for review.

[10] The application was stamped by the Registrar of the Court on 29 December 2020.

[11] The Third Respondent raised a point in limine that the Court does not have jurisdiction to determine the review application in view of the non-compliance with the provisions of section 145(1)(a) of the LRA and the absence of any application for condonation on the part of the Applicant.

[12] That there is no application for condonation before the Court is not in dispute.

Evaluation

[13] The Third Respondent has raised three points in limine. The first point relates to the contention that this Court does not have jurisdiction to determine the review application as the review application has been delivered out of time given the provisions of section 145(1)(a) of the LRA and the Applicant has not sought and been granted condonation. In essence a jurisdictional point.

[14] The two other points in limine relate to points in respect of the service of the application and noncompliance with the practice manual.

[15] The jurisdictional point should be determined first, given the potentially dispositive effect of the point in relation to the application for review.

[16] There is no dispute in relation to the last day of the six-week period provided for in section 145(1)(a) of the LRA. The last day for the timeous filing of any application for review of the award was 14 December 2020. For the Applicant it was argued that service of the application for review by email on the Respondents constituted effective service. This was disputed by the Third Respondent, who contended that the application had not been properly served, hence the further point in limine.

[17] Rule 7A of the Rules for the conduct of proceedings in this Court provide:

“7A (1) A party desiring to review a decision or proceedings of a body or person performing a reviewable function justiciable by the court must deliver a notice of motion to the person or body and to all other affected parties.”

[18] The Rules go on to provide that:

“1. Definitions …

“deliver” means serve on other parties and file with the registrar.”[3]

[19] The review application was filed by the Applicant with the Registrar on 29 December 2020.

[20] For the Applicant it was contended that the Judge President had issued a directive in terms of which documents requiring filing at the Labour Court, if filed by email, were to be filed at Court within five days and, so the argument went, the directive then provided for the date for filing to be regarded as with effect from the date on which such document was served by email. This argument was raised for the Applicant for the first time during the course of the hearing of the matter and the directive on which reliance was placed was not specifically identified nor provided.

[21] The Judge President, on 5 January 2022, issued a directive in relation to service by electronic mail.[4] This directive provided for the provision of an affidavit in relation to such service by email and provided for an obligation on the parties to file hard original copies of any Court process forwarded by email on the Registrar. It is apparent from the directive that the directive was issued well after any time period of any relevance to the application for review filed by the Applicant, in casu. Quite apart from this, the directive did not provide for determination of the date on which the application for review was delivered on any date other than is presently contemplated by the rules.

[22] At best for the Applicant, if proper service is accepted as having taken place on 14 December 2020, the application for review was delivered on 29 December 2020. The application review was thus delivered 17 days late.

[23] There is no application for condonation for the late filing of the application for review. Whilst for the Applicant it was contended that, should this Court find that the review application was indeed served out of time, an opportunity to file an application for condonation should be afforded to the Applicant. This submission, made belatedly, was made as a final submission by the Applicant’s representative. It was also not preceded by any attempt to postpone the hearing of the application for review, this in circumstances where the Third Respondent’s points in limine were raised in its answering affidavit delivered on 4 August 2021.

[24] The Applicant has had ample opportunity to bring the required application for condonation and has simply not done so. In the premises, this Court is deprived of jurisdiction and the application for review falls to be dismissed[5].

[25] In relation to the costs, even though in this Court costs do not usually follow the result[6], after carefully considering the requirements of law and fairness, the Third Respondent should be entitled to its costs.

[26] In the premises, the following order is made:

Order

1. The application for review is dismissed.

2. The Applicant is directed to pay the Third Respondent’s costs on the party and party scale.

R. T. Maddern

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant

Mr Khoza

Instructed by

HICRAWU

For the Third Respondent Advocate Eric Nwedo

Instructed by

Salijee Govender Van Der Merwe Attorneys

[1] 66 of 1995, as amended (the LRA)

[2] Pleadings Bundle at p. 73.

[3] Section 1 – Definitions Rules for the conduct to proceedings in the Labour Court

[4] Directive Number LC02/2022 dated 5 January 2022

[5] See: Computer Storage Services Africa (Pty) Ltd v CCMA and others, (CA7/2016) [2017] ZALAC 74 (30 November 2017) applied in the unreported judgment of the Labour Court – Department of Home Affairs v Maloyi NO and others (JR2377/19) [2023] ZALCJHB 131 (11 May 2023).

[6] See: MEC for Finance: Kwazulu-Natal and Another v Dorkin NO and Another (2008) 29 ILJ 1707 (LAC).