MCG Industries (Pty) Ltd v Metal And Engineering Industries Bargaining Council and Others (JR826/12) [2014] ZALCJHB 345 (5 September 2014)

REPUBLIC OF SOUTH AFRICA

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR 826/12

In the matter between –

MCG INDUSTRIES (PTY) LTD

Applicant

And

THE METAL AND ENGINEERING

INDUSTRIES BARGAINING COUNCIL

First Respondent

JOHAN MOOOLMAN N. O

Second Respondent

GOPAL MAINSTRY

Third Respondent

Date of hearing: 30 May 2014

Delivered: 5 September 2014

Summary: Review of ruling dismissing condonation application for the late filing of rescission application.

MOLAHLEHI J

Introduction

[1] This is an application to review and set aside the condonation ruling made by the second respondent under case METS 1904, in terms of which the late filing of the rescission application was condoned and the ruling dismissing third respondent’s case for failure to attend the hearing rescinded.

The background facts

[2] The third respondent (“herein after referred to as the employee”) who was employed by the applicant as a team leader was dismissed on 10 May 2011. The dismissal of the third respondent was preceded by two hearings. The two hearings which entailed the charge of misconduct and the other incapacity due to ill-health were heard separately.

[3] As concerning incapacity, the employee was found to be incapacitated based on the record of his absenteeism. The record of the third respondent’s absenteeism showed that he had been absent from work for a total of 111 days out of the 396 working days. The outcome of the incapacity hearing was dismissal.

[4] As concerning the charges of misconduct, the employee was charged with absence from work without authorisation and the second charge related to failure to notify the applicant about his absence timeously. He was found guilty of the two charges and dismissed for these reasons.

[5] The employee being unhappy about the outcome of the disciplinary hearing referred a dispute concerning the alleged unfair dismissal to the bargaining council. Subsequent to failure to resolve the dispute at the conciliation hearing, the matter was set down for arbitration on 7 October 2011. The third respondent at the arbitration hearing was represented by an attorney. The applicant’s objection to legal representation but was unsuccessful. The proceedings were thereafter postponed to afford the applicant the opportunity to obtain legal representation.

[6] The employee says that after the postponement he phoned the bargaining council to inquire as to when the matter would be set down. He was advised to choose between the 23 and 27 January 2012. He chose the 23rd January 2012. He thereafter never heard from the bargaining council until when a friend informed him that his case was set down for 23 January 2012.

The grounds of review

[7] The applicant has raised several grounds of review the essence of which is that, the Commissioner is accused of failing to apply his mind and misconstruing the evidence which was placed before him. The other contention is that the Commissioner failed to take into account the uncontested facts that the dismissal of the employee arose from two separate hearings.

[8] The other point raised by the applicant is that the Commissioner failed to take into account the law regarding the non-application of the principle of double jeopardy in labour matters. In addition the applicant raised several other alternative grounds of review relating amongst others failure to:

a. take into account the evidence which was placed before him.

b. deal with the difference between procedural and substantive fairness of the dismissal.

c. take into account that the dismissal was based on two reasons.

The ruling

[9] In arriving at the conclusion that the employee should be granted condonation for the late filing of the rescission application, the arbitrator firstly accepted that the delay of 23 days was reasonable and that the period of the delay was not excessive. He also found that the employee had good prospects of success.

[10] As concerning the rescission the arbitrator found that the employee did not attend the hearing which resulted in the dismissal of the claim because he was unaware of the date of the hearing as the notice of set down did not reach him. In dealing with the explanation of the employee that he never received the registered post notifying him of the set down, the arbitrator found correctly that the evidence of the notice of set down being sent by registered mail constitute a presumption of service. In this regard the arbitrator relied on the dictum in Halcyon Hotels (Pty) Ltd t/a Baraza v CCMA and Others[1] where the Court held that:

“[16] Second respondent placed undue emphasis on the technical definition of service and the fact that the transmission slip shows a successful transmission. This is no way conclusive proof that there was proper notification and due regard should have been had to the facts that the applicant placed before him.”

[11] I am of the opinion that the arbitrator was unaware that the applicant was not in receipt of the notice of set down because if he was, he would not have dismissed the claim for non-attendance by the applicant.

Evaluation

[12] The test to apply in a review application is that of a reasonable decision maker. The test entails an enquiry into whether the decision

reached by the Commissioner is one that a reasonable decision maker could not have reached.

[13] The first inquiry to conduct in this matter relates to whether the decision to grant condonation by the Commissioner for the late filing of the rescission ruling was reasonable or not.

[14] The consideration of a request for condonation involves the exercise of a discretion which as stated in Motloi v SA Local Government Association,[2] is very wide. The Commissioner exercises the discretion by taking into account all the relevant factors which are in our law well

established and include the length of the delay, prospects of success in the main application, the possible prejudice to the parties and the blame attaching to the parties

[15] The relevant consideration to take into account when considering an application for condonation are set out in the often quoted case of Melane v Santam Insurance Co Ltd,[3] as follows:

‘…the basic principle is that the court has a discretion, to be exercised judicially upon a consideration of all the facts, in essence, it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation thereof, the prospects of success and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive, for that would be a piece-meal approach incompatible with a true discretion, save of course that if there are no prospects of success there will be no point in granting condonation. What is needed is an objective conspectus of all the facts. Thus, a slight delay and a good explanation may help to compensate for the prospects of success which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. The respondent’s interest in finality must not be overlooked.’

[16] The question of whether the delay is reasonable or unreasonable depends on the facts and circumstances of any particular case. In Associated Institution Pension Fund and Others v Van Zyl and Others[4] the Court held that:

[48] The reasonableness or unreasonableness of a delay is entirely dependent on the facts and circumstances of any particular case. The

investigation into the reasonableness of the delay has nothing to do with the court's discretion. It is an investigation into the facts of the matter in order to determine whether, in all the circumstances of that case, the delay was reasonable. Though this question does imply a value judgment it is not to be equated with the judicial discretion involved in the next question, if it arises, namely, whether a delay which has been found to be unreasonable, should be condoned...”

[17] It is trite that the two factors that carry significant weight in the consideration of whether to grant or refuse condonation are the reasonableness of the explanation and the prospects of success.

[18] The bargaining council’s rule require the condonation for the late filing of a rescission application has to be done within 14 days from the date when the applicant became aware of the decision which is the subject matter of the rescission.

[19] In the present matter the Commissioner found that the employee became aware of the ruling dismissing his claim on 23 June 2013 which made the delay 23 days late.

[20] In applying the stringent test of the review, I am unable to fault the Commissioner in his finding that the period of the delay was not excessive. There is also no basis in my view to interfere with the finding that the explanation tendered by the employee was reasonable.

[21] As concerning the issue of prospects of success, it is trite that all what the applicant in a condonation application has to show is that he or she has a prima facie case which has a good chance of succeeding when the matter is considered on its merit. In unfair dismissal case the prospects of

success has to be considered also in the context of the onus of proving the fairness of the dismissal being on the employer.

[22] In short having regard to the totality of the facts and circumstances of this case, I find that the Commissioner adopted the correct approach and considered the relevant factors concerning condonation.

[23] It follows from the above that the decision of the Commissioner was reasonable and accordingly rescission ruling also stands. Except for the issue of condonation the applicant seems not have taken issue with the consideration of the rescission.

[24] In light of the above, I am of the view that the applicant’s application to review the rescission ruling made by the Commissioner stands to fail. I see no reason in law and fairness why costs should not follow the results.

Order

[25] In the premises the Following order is made:

1. The application to review and set aside the arbitration award made by the Second Respondent under case number METS 1904 is dismissed with costs.

_______________

Molahlehi J

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv C Brummer

Instructed by: Chris Smit Attorneys

For the Respondent: CF Van Der Walt (Attorney)

Instructed by: Du Randt Du Toit pelser Attorneys

[1] (2001) 8 BLLR 911 (LC)

[2] Motloi v S A Local Government Association [2006] 3 BLLR 264 (LAC) par [16].

[3] 1962 (4) SA 531 (A) at 532C-E.

[4] [2004] 4 All SA 133 (SCA) at para 47 and 48.