Mahwai v Fasic Africa (Pty) Ltd t/a Lion Match Company (Pty) Ltd and Others (J 2625/08) [2012] ZALCJHB 139 (20 January 2012)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: J 2625/08

In the matter between:

SAM MAHWAI ...........................................................................................................Applicant

and

FASIC AFRICA (PTY) LTD t/a LION

MATCH COMPANY (PTY) LTD ...................................................................First Respondent

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION ..........................................................Second Respondent

COMMISSIONER JOSEPH TSABADI N.O. ...............................................Third Respondent

Heard on: 25 November 2011

Delivered on: 20 January 2012

___________________________________________________________________

BOQWANA AJ

Introduction

This is an application in terms of section 145(2) of the Labour Relations Act1 (‘the LRA’) in terms of which the applicant is seeking to review and set aside the arbitration award made by the third respondent (‘the commissioner’) on 23 June 2008 under case number GAPT11671/07. The commissioner found that the dismissal of the applicant was both procedurally and substantively fair and accordingly dismissed the claim of unfair dismissal of the applicant.

The review application was preceded by an application for condonation for the late filing of the review application as well as the application for the late filing of the answering affidavit. The application for condonation was opposed by the third respondent. I will first deal with the condonation application before I consider the merits in the main application.

Facts

The applicant was employed by the first respondent as a general labourer and a forklift driver for eleven years until termination of his services on 21 November 2007 by the first respondent.

The applicant was dismissed for altering or tempering with a medical certificate which he submitted to the first respondent in order to be paid sick leave to which he was not entitled to as he allegedly did not consult a doctor at a hospital on 09 November 2007.

The applicant apparently visited a sister at the clinic on 08 November 2007. According to him the sister at the clinic said he must go to the hospital on 09 November 2007. This is disputed by the first respondent who asserts that the applicant ought to have been at work on 09 November 2007. According to the witnesses of the first respondent, the sister had recommended that the applicant goes to the hospital in his own time, and not on company time as his condition was not serious.

Accordingly, the applicant visited the doctor on 12 November 2007. The date of 12 November 2011 is not disputed as it is allegedly the date that the applicant was authorised to see the doctor. It is common cause that the applicant was not at work on 09 November 2007. The applicant claims that the doctor only took blood pressure on 09 November 2007 and asked him to come back again on 12 November 2007 which he did. Apparently the applicant had testified during the disciplinary hearing that he was not treated by the doctor on 09 November 2009 but when asked under cross examination at the arbitration hearing about that statement, he disowned it claiming that it must have been an error made by the person taking the minutes.

The medical certificate submitted by the applicant indicated that he consulted with the doctor on 09 November 2007 and would be fit to resume his duties on 13 November 2007.

Anton Schoeman (“Schoeman”) who is a store manager at the first respondent apparently questioned the medical certificate the moment it was submitted to him. This was because the applicant had claimed sick leave for both 09 November 2007 and 12 November 2007 whereas he was only authorised to be absent only for 12 November 2007. The applicant had apparently attached the sick note to his sick leave application form.

Since the sick note looked suspicious, Schoeman contacted the hospital and obtained a copy of the sick note from the hospital’s file. The sick note sent from the hospital indicated that the applicant had consulted with the doctor on 12 November 2007. There was no indication of 09 November 2007. It was on this basis that Schoeman came to a conclusion that the applicant was dishonest and had tempered with the sick note.

The applicant disputes that he altered the sick note and claims that only the doctor could answer the discrepancy.

The applicant further claims that he wanted to call the doctor as his witness during the appeal hearing but was denied such an opportunity by the appeal chairperson who said that outsiders were not allowed. It appears from the record of the arbitration proceedings that the applicant was asked if would be calling the doctor to testify and he indicated that he was not. The applicant handed in a memorandum from a certain doctor V J A Mbona (“Dr Mbona”) addressed to the Manager, Mr Willem Jooste dated 14 November 2007. Dr Mbona’s memorandum read as follows:

‘This is to certify & notify you as the manager that the above patient was seen by me on Friday (09 /11/07) and again on the 12/11/07. No erasure of any sort was done on the medical certificate. That was me, rectifying the make (sic) I had made on the dates (i.e. first consultation and follow up dates). So if Mr Anthony Schoeman has anything to say, he should approach me not my patient. I reserve the right to identify him as a stressful factor to my patient’s condition.’

There is also a letter from Dr Mbona dated 06 December 2007 addressed to the Shop Steward where the doctor accepts a request to ‘vindicate’ the applicant and that he does this ‘on behalf of an innocent man, according to me, as I made the mistake on the medical certificate.’ Apparently this letter was never part of the record of the arbitration. The applicant has not been able to explain how this letter found itself in the review application if it did not form part of its case at the arbitration proceedings.

The applicant was not paid for being absent on 09 November 2007 but was paid for 12 November 2007.

Condonation application

Section 145(1)(a) of the Labour Relations Act 66 of 1995 (‘the LRA’) requires a party wishing to review arbitration proceedings in which it alleges there is a defect, to file such application within six weeks of the date upon which the arbitration award was served on that party. Section 145(1A), however, allows for the condonation of the late filing of the application.

In terms of Rule 7A(8) of the Rules for the Conduct of Proceedings in the Labour Court (“the Labour Court Rules”), an applicant is required to file its supplementary founding affidavit, if any, within ten days of the record of the proceedings being dispatched.

Rule 12 provides for this Court to condone any non-compliance with a period prescribed by the Labour Court Rules, on good cause shown.

The requirement of good cause applies equally to the exercise of this Court’s discretion in terms of s 145(1A) of the LRA.

The test for good cause is well established:

‘The approach is that the court has discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success and the importance of the case. These facts are interrelated; they are not individually decisive. What is needed is an objective conspectus of all the facts. A slight delay and a good explanation may help to compensate for prospects of success which are not strong. The importance of the issue and strong prospects of success may tend to compensate for a long delay. There is a further principle which is applied and that is that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused…’2

In respect of condonation for the late filing of a review application in an individual dismissal dispute the applicant is required to provide a ‘compelling’ explanation and show that he has ‘strong’ prospects of success, such that if his case were not heard it would be a miscarriage of justice.3

The applicant’s grounds for condonation for failing to institute these proceedings within six weeks are set out in his founding affidavit and supplemented with further grounds for condoning the late filing of his supplementary affidavit.

Extent of the delay

The applicant alleges that he became aware of the arbitration award on 09 July 2008 and the six weeks period would have lapsed on 20 August 2008. Although the applicant does not state the degree of lateness in sufficient detail, the review application was brought on 11 December 2008, which means it was 16 weeks late.

Explanation for the lateness

The applicant alleges that he encountered severe difficulties in contacting his legal insurer, whom he hoped would point him to a right direction to get legal advice or that they would have provided the same. He does not state when or during which period were these attempts made.

The applicant further states that his legal insurer referred him to attorneys in Johannesburg which presented him with logistical issues as he is not a resident in Johannesburg. He claims that he experienced great difficulty in organising transport in time in order to attend consultations or raising enough funds to be in continuous telephonic contact with the attorneys.

These difficulties reached a point on which the applicant could no longer deal with it and he requested his legal insurer to refer him to a firm in Pretoria. This was done, however, he was advised when he had a first consultation his new attorneys of record that his application was already outside the six weeks period required. When this was explained to him, he immediately instructed them to brief counsel to draft the necessary papers on their advice. I find this explanation quite thin. The applicant does not give any dates and period for this explanation nor does he provide names of these firms of attorneys that he allegedly consulted with. What is most surprising is that it was only after being allegedly told that the application was outside six weeks that he rushed to and advised his new attorneys to lodge an application. He does not state when these attorneys were advised to lodge an application and who they were. We know that the review application was lodged on 11 December 2008.

In his supplementary affidavit the applicant states that on 05 May 2009, his first attorneys of record Brazington Shepperson and McConnel Attorneys (‘BSM Attorneys’) handed the contents of their file to the applicant due to the fact that no agreement with regards to their fees between them and Zurich Insurance Company (‘Zurich’) which was supposed to pay costs on behalf of the applicant in this matter. BSM Attorneys then decided to withdraw as attorneys of record. This allegation does not accord with the statement of the applicant in the founding affidavit that gives an impression that the founding affidavit was lodged by the second firm of attorneys. The founding affidavit seems to suggest that there were other attorneys that were appointed in Johannesburg before BSM Attorneys from Pretoria were appointed. It is not clear who those were and for how long were they appointed. The Notice of Motion clearly indicates that BSM Attorneys were attorneys of record during the lodgement of the review application.

The applicant fails to explain why it took him three weeks to approach new attorneys after he received the file contents from BSM Attorneys already on 05 May 2009.

On 16 September 2009 the applicant alleges that he approached FM Moloi Attorneys (‘Moloi Attorneys’) to proceed with this matter from where BSM Attorneys left off.

The applicant then claims that Moloi Attorneys got instructions to proceed with the matter on 23 September 2009 from Zurich who were responsible to pay.

On 10 October 2009, the applicant brought the contents of the file to Moloi Attorneys. On 23 October 2009 filed a Notice of Appointment as Attorneys of Record. Thereafter there is some explanation about what happened from 04 November 2009 to 02 November 2010. I however find this explanation unhelpful as it deals with the events that occurred after the review application was lodged. What is important is for the applicant to offer explanation as to what happened between the period he became aware of the arbitration award and the date he lodged the review application. I find that application very thin and unconvincing.

In any event there is no explanation of why it took another thirteen days to file a Notice of Appointment as attorneys of record. That would in any event not really be relevant in the consideration of whether or not the review application was lodged timeously. It may go to the late filing of the supplementary affidavit. The explanation of incorrect case numbers does not help the applicant’s case. It cannot reasonably take almost five months to amend the allegedly incorrect case number. All this conduct gives an impression that the applicant did not deal with this matter expeditiously and did not at all apply any sense of urgency. In any event all this explanation from 5 May 2009 points to events after the lodgement of the review application and does very little to address the period before the review application was lodged. I find that the applicant has failed to take the court to it confidence by providing a plausible explanation.

The supplementary affidavit was filed on 22 March 2011 whilst the record from the second respondent appears to have been transcribed on 22 March 2010 and received on 24 May 2010 for the first time and then again on 2 November 2010 after Moloi took them for correction. There is no explanation brought as to why the supplementary affidavit and Notice in terms of Rule 7A (8) of the Labour Court Rules were brought significantly out of time.

The applicant’s explanation for the delay is set out in a needlessly bald and vague manner and cannot by any stretch of the word be said to be “compelling”. The application for condonation should be refused on this ground alone.4

Insofar as the applicant seeks to blame the late filing of the review application on his attorneys, that cannot assist him. This court has held numerous times that there is a degree beyond which a litigant cannot hide behind the remissness of his legal representative.5

I shall nevertheless deal with the prospects of success, i.e. the merits of the application for review.

Prospects of success

The commissioner found that the applicant’s services were terminated fairly because he made the alterations to a medical certificate he submitted to the first respondent in order to be paid for sick leave for which he was not entitled to. In my view even if the applicant did not alter the medical certificate himself, he still submitted it, whilst he also accepts that it was altered (even though he disputes that the alterations were done by him). Even if it is the doctor who made an error the fact remains that the sick note which differed from a copy obtained from the hospital was submitted.

It is after Schoeman inquired from the hospital that it was discovered that hospital records showed that the applicant was only seen by the doctor on 12 November 2007. The applicant would probably not have disclosed this as he handed in a certificate that said he was seen by the doctor on 09 November 2007. I find it quite strange that if 09 November 2007 was a legitimate date why would the doctor acknowledge an error that allegedly he made. The doctor alleges that no erasure was made. It was him rectifying the mistake he had made regarding the dates. He does not state what mistake that was apart from a comment ‘first consultation and follow up dates’. Presumably the doctor did not initially put in 09 November 2009 as the date. It is interesting that the doctor did not see it fit to also change the hospital file to reflect this rectification. Another interesting point is that the sick note has the stamp of 12 November 2009 and contains the same reference number as the hospital file.

What is also important is that the applicant had not been given time off for 09 November 2007 but was only authorised to be off from work on 12 November 2007. He would have had to obtain permission from his supervisor to go to the doctor if the sister had recommended that he goes during work time. This is so because the sister at the clinic had apparently recommended that the applicant could go to the hospital in his own time as his condition was not serious. Furthermore a document from the sister would have had to be handed to the supervisor and signed by him which the applicant failed to do. The applicant could not in his own accord decide that he would go to the doctor without permission during company time.

The applicant had ample opportunity to call the doctor at the arbitration but failed to do so. This issue was raised a number of times. The fact that he was not allowed to call the doctor at the appeal hearing could have been rectified easily by him calling the doctor at the arbitration but he failed to do so. Arbitration is a hearing de novo and it would have been perfectly acceptable for the applicant to call the doctor at that hearing. He can therefore not blame the commissioner or anyone else for his failure to do so. In any event it is clear from the record that the doctor’s letter did not form part of the disciplinary hearing. The appeal chair only declined to see the doctor because when he asked the applicant what evidence would be brought by the doctor, the applicant said the doctor would confirm that he had gone to see him on 09 November 2009. At that stage it was apparent that the doctor would not be called to testify on the alterations made on the sick note. The appeal chairperson accordingly found that there was no need to call the doctor if that is all he had to say. Of importance though is that the applicant failed to call the doctor at the arbitration when this was raised many times during the arbitration hearing.

The commissioner found dishonesty and falsification of records undermines the authority of management to effectively manage the business. He found that the relationship had been irretrievably damaged. The employer could therefore not be expected to continue employing the applicant under those circumstances.

I therefore cannot find that the commissioner’s award was unreasonable that another commissioner would come to a different conclusion. The prospects of success are accordingly very weak. Both the applicant’s condonation and the review applications fall to be dismissed.

In view of my finding in that regard, I do not need to deal with the answering affidavit which was filed two days late. In any event the degree of lateness was not material. It would therefore be in the interest of justice to have condoned it.

I therefore make the following order:

The applicant’s condonation application is dismissed.

The review application is dismissed.

There is no order as to costs.

__________________

ACTING JUDGE OF THE LABOUR COURT

APPEARANCES:

For the applicant: Mr Moloi, Moloi Attorneys, Johannesburg

For the third respondent: Adv WP Bekker

Instructed by: Nothnagel Attorneys, Pretoria

1Act No 66 of 1995

2NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) at para 10. See also Foster v Stewart Scott Inc (1997) 18 ILJ 367 (LAC) at 369C - E; and Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532 B - F.

3See Queenstown Fuel Distributors CC v Labuschagne NO and Others (2000) 21 ILJ 166 (LAC) at 174E-I; and A Hardrodt (SA) (Pty) Ltd v Behardien and Others (2002) 23 ILJ 1229 (LAC) at paras 3 - 20.

4See in general National Union of Metalworkers of SA obo Nkuna and Others v Wilson Drills-Bore (Pty) Ltd t/a A and G Electrical (2007) 28 ILJ 2030 (LC) at 2034A - B.

5Saloojee and Another v Minister of Community Development 1965 (2) SA 135 (A) 141 B-H; Khan v Cadbury SA (Pty) Ltd [2011] JOL 27124 (LC); Silplat (Pty) Ltd v CCMA and Others [2008] ZALC 33; [2011] 8 BLLR 798 (LC) at para 54.