Kubyana v Education Labour Relations Council and Others (J135/16) [2021] ZALCJHB 180 (2 August 2021)
The applicant failed to comply with the statutory time period for filing a review application under section 145(1)(a) of the Labour Relations Act. The application was filed 14 days late, and no condonation application was submitted. In the absence of condonation and good cause shown for the delay, the Labour Court...
Source-derived case information.
- Citation
- [2021] ZALCJHB 180
- Parties
- Applicant: Gwendolene Gugulethu Kubyana; Respondent: Education Labour Relations Council; Respondent: Sibongiseni Sithole NO; Respondent: Gauteng Department of Education
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- J135/16
- Procedural Posture
- Review Application / Judgment
- Outcome
- Review application dismissed due to late filing and absence of condonation.
- Judges
- T Nsibanyoni
- Legal Topics
- Unfair Dismissal, Condonation, Review of Arbitration Award, Late Filing
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gwendolene Gugulethu Kubyana
Applicant
Education Labour Relations Council
Respondent
Sibongiseni Sithole NO
Respondent
Gauteng Department of Education
Respondent
Procedural Posture
Review Application / Judgment
Legal Issues
- 1 Whether the applicant's review application was filed within the statutory time period.
- 2 Whether the applicant provided sufficient cause for condonation of the late filing.
- 3 Whether the Labour Court can entertain a review application filed out of time without condonation.
Ratio Decidendi
The applicant failed to comply with the statutory time period for filing a review application under section 145(1)(a) of the Labour Relations Act. The application was filed 14 days late, and no condonation application was submitted. In the absence of condonation and good cause shown for the delay, the Labour Court is precluded from considering the review application. The matter must therefore be dismissed.
Court Disposition
Review application dismissed due to late filing and absence of condonation.
Orders
- The review application is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: J135/16
In the matter between:
GWENDOLENE GUGULETHU KUBYANA Applicant
and
EDUCATION LABOUR RELATIONS COUNCIL First Respondent
SIBONGISENI SITHOLE NO Second Respondent
GAUTENG DEPARTMENT OF EDUCATION Third Respondent
Heard: 02 July 2021
Delivered: This judgment was handed down electronically by circulation to the partiesâ legal representative by email. Publication on the Labour Court website and released to SAFLII. The date and time for hand-down is deemed to be 10:h00 on 02 August 2021
JUDGMENT
NSIBANYONI, AJ
[1] The Applicant, Ms. Kubyana, was employed by the third Respondent, Gauteng Department of Health (âGDoHâ) in January 1991 until 2015, when she was dismissed pursuant a disciplinary hearing.
[2] Aggrieved with the dismissal, Ms. Kubyana referred the unfair dismissal dispute to the Education Labour Relations Council (âELRCâ). Following a failed conciliation, the matter proceeded to arbitration. The Second Respondent (âArbitratorâ) issued the arbitration award on 22 November 2017 wherein she found that the dismissal was both procedurally and substantively fair.
[3] Ms. Kubyana brought the application for review on 22 January 2018. Ms. Kubyana ought to have applied for review by no later than 08 January 2018 in accordance with section 145(1)(a) of the Labour Relations Act[1] (LRA). The application is accordingly 14 days late.
[4] Ms. Kubyana failed to comply with section 145(1)(A) of the LRA and show good cause why the application should be condoned. In the absence of a condonation application, this Court cannot consider the review application and this matter stands to be dismissed.
1. In the circumstances, I make the following order is made:
Order
1. The review application is dismissed.
2. There is no order as to costs.
T. Nsibanyoni
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv. D Moodliyar
Instructed by: Moodliyar & Bedhesi Attorney
For the Third Respondent: Adv. Thomas Tshabalala
Instructed by: The State Attorney
[1] No. 66 of 1995, as amended