Molefe v Commission for Conciliation, Mediation & Arbitration Polokwane and Others (JR2356/17) [2021] ZALCJHB 203 (2 August 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR2356/17

In the matter between:

AUBREY

MOLEFE Applicant

and

COMMISSION

FOR CONCILIATION

MEDIATION & ARBITRATION POLOKWANE First Respondent

COMMISSIONER

NTSEPENG BENAULT

MOOKAMEDI NO Second Respondent

PICK ’N PAY RETAILERS Third Respondent

Heard: 02 July 2021

Delivered: This judgment was handed down electronically by circulation to the parties’ 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.

Summary: Condonation – even though the delay is not inordinate, the explanation is unreasonable and there are no prospects of success.

JUDGMENT

NSIBANYONI, AJ

Introduction

[1] The Applicant (Mr. Molefe) brought the application to review and set aside the arbitration award dated 20 August 2017 issued by the Second Respondent (Commissioner) acting under the auspices of the Commission for Conciliation Mediation and Arbitration (CCMA). The Commissioner ruled in favour of the Third Respondent, thus dismissing the Applicant’s alleged unfair dismissal claim.

[2] The Applicant further seeks condonation of the late filing of the review application. The Third Respondent (Pick ’n Pay) opposes both applications.

Background

[3] Mr Molefe was employed by Pick ’n Pay on 01 October 2017. Pick ’n Pay is a major retailer with stores throughout the country and Africa. He was dismissed on 18 August 2016 for reasons relating to alleged dishonesty in that he fraudulently understated Pick ’n Pay’s obsolete stock by purchasing it using a gift card. At the time of his dismissal, he was an Assistant Manager earning R26 392.00 (Twenty Six Thousand Three Hundred and Ninety Two Rands).

[4] The allegation that led to Mr Molefe’s dismissal relates to transactions that was processed on 09 March 2015 where a gift card in the amount of R599.13 in respect of obsolete stock was redeemed at his till. Obsolete stock is a term that refers to inventory that is at the end of its product life cycle and has not seen any sales or usage for a set period of time usually determined by the industry.

[5] It is common cause that the Employer deals with obsolete stock in three ways, namely:

1.1. taking the stock and put it in front of the store and reduce the selling price in order to attract Pick ’n Pay’s customer to buy it;

1.2. returning the stock to the supplier where Pick ’n Pay bought the said stock;

1.3. moving the stock through documentation process to another Pick ’n Pay Branch so as to get the stock to sell.

[6] Mr Molefe did not deny having processed the transaction but stated he did so at the instruction of the Store Manager, an allegation denied by Pick ’n Pay.

[7] Aggrieved by his dismissal, Mr Molefe referred an unfair dismissal dispute to the First Respondent (CCMA). Pick ’n Pay failed to attend to the conciliation and the arbitration (Con/Arb) on 16 March 2017. A default award was made in favour of Mr Molefe but was later successfully rescinded. The matter was arbitrated afresh and Commissioner rendered his award on 20 August 2017, dismissing Mr Molefe’s claim.

[8] Mr Molefe averred that he became aware of the award on 28 August 2017 and the review papers were filed on 31 October 2017. The review application was filed 21 days outside the stipulated statutory six weeks’ period.

Legal principles and application

[9] In Grootboom v National Prosecuting Authority,[1] the Constitutional Court expounded the principles applicable when dealing with condonation application and referred to with approval in Steenkamp and Others v Edcon Limited,[2] where the Constitutional Court, per Basson AJ, stated the following:

[36] Granting condonation must be in the interests of justice. This court in Grootboom set out the factors that must be considered in determining whether or not it is in the interests of justice to grant condonation:

‘[22] ...[T]he standard for considering an application for condonation is the interests of justice. However, the concept “interests of justice” is so elastic that it is not capable of precise definition. As the two cases demonstrate, it includes: the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success. It is crucial to reiterate that both Brummer and Van Wyk emphasise that the ultimate determination of what is in the interests of justice must reflect due regard to all the relevant factors but it is not necessarily limited to those mentioned above. The particular circumstances of each case will determine which of these factors are relevant.

[23] It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case entitling it to the court’s indulgence. It must show sufficient cause. This requires a party to give a full explanation for the non-compliance with the rules or court’s directions. Of great significance, the explanation must be reasonable enough to excuse the default. ...

[51] The interests of justice must be determined with reference to all relevant factors. However, some of the factors may justifiably be left out of consideration in certain circumstances. For example, where the delay is unacceptably excessive and there is no explanation for the delay, there may be no need to consider the prospects of success. If the period of delay is short and there is an unsatisfactory explanation but there are reasonable prospects of success, condonation should be granted. However, despite the presence of reasonable prospects of success, condonation may be refused where the delay is excessive, the explanation is non-existent and granting condonation would prejudice the other party. As a general proposition the various factors are not individually decisive but should all be taken into account to arrive at a conclusion as to what is in the interests of justice.’

…

[39] This court in Toyota accepted that the expeditious resolution of disputes in the context of labour disputes is one of the primary objects of the LRA:

‘Time periods in the context of labour disputes are generally essential to bring about timely resolution of the disputes. The dispute-resolution dispensation of the old Labour Relations Act was uncertain, costly, inefficient and ineffective. The new Labour Relations Act (LRA) introduced a new approach to the adjudication of labour disputes. This alternative process was intended to bring about the expeditious resolution of labour disputes which, by their nature, require speedy resolution. Any delay in the resolution of labour disputes undermines the primary object of the LRA. It is detrimental not only to the workers who may be without a source of income pending the resolution of the dispute but, ultimately, also to an employer who may have to reinstate workers after many years.’

[40] In Myathaza four judges of this court, recognising the adverse effects delays impose on both the employers and employees, pronounced that

‘[e]mployment disputes by their very nature are urgent matters that require speedy resolution so that the employer’s business may continue to operate and the employees may earn a living’.

[41] In giving effect to this primary object, the LRA imposes strict time-limits within which various applications and referrals must be launched. Non-adherence to these time-limits may be condoned. Both the Labour and the Labour Appeal Courts have incorporated the general principles for condonation referred to above. But they have also infused factors and considerations specific to labour law: Condonation in the case of disputes over individual dismissals will not readily be granted. The explanation for non-compliance would have to be compelling, the case for attacking a defect in the proceedings would have to be cogent and the defect would have to be of a kind which would result in a miscarriage of justice if it were allowed to stand. Whether the delay was a result of a deliberate, wilful decision not to comply with a lawful and binding award in terms of the LRA is also an important factor to consider. Where the explanation for the delay is the internal processes and procedures of trade unions, the Labour Court has taken a stricter view.’ (Emphasis added and footnotes omitted)

[10] In explaining the lateness of the application, Mr Molefe averred that When he was served with the award on 28 August 2017, it “left him confused” and realised that he needed legal advice. His wife is the holder of a FNB “Law on Call” policy and after consultation with a legal case administrator, he was informed that he was covered under his wife’s FNB “Law on Call” policy

[11] On 20 October 2017, FNB “Law on Call” instructed one of their panel attorneys, being Cavanagh & Richards Attorneys, to arrange the necessary consultation; On the same day, being 20 October 2017, his wife was contacted by Cavanagh & Richards Attorneys and a consultation was arranged for 26 October 2017 at 09:00.

[12] On 25 October 2017, prior to the consultation, he approached the Labour Court, in person, to obtain a case number. Prior to obtaining legal advice, he was unaware that the period in which he was required to launch a review application was six weeks from the date of receipt of the arbitration award issued by the CCMA.

[13] On the other hand, Pick n’ Pay argued that Mr Molefe became aware of the award on 28 August 2017, however, it was only on 20 October 2017 that he consulted with Cavanagh & Richards Attorneys.

[14] Mr Mr Molefe does not explain to the Court what steps he took to challenge the arbitration award when he became aware of on 28 August 2017 and at the time Mr Molefe decided to pursue this matter on 20 October 2017, the six weeks statutory period had lapsed.

[15] With regards to the prospects of success, Mr Molefe averred that Pick n’ Pay was inconsistent in applying the rule in that other employees who committed the same offence were not dismissed. Also that, considering that this was his first offence, a dismissal was not an appropriate sanction. Conversely, Pick n’ Pay resolutely argued that it acted consistently in this matter as another store manager, Mr Patrick Sibende (Mr Sibende) was dismissed for the same offence.

[16] As much as the application is 21 days late which may not be excessive, the reasons for such a delay are unsatisfactory. Although Mr Molefe became aware of the award on 28 August 2017, the only time that he acted on the award was on 20 October 2017. As correctly pointed out by Pick n’ Pay, Mr Molefe failed to account for the period between 28 August 2017 and 20 October 2017 except that he was “confused” by the award. Furthermore, the statutory six weeks’ period expired on 10 October 2017 and Mr Molefe only started actively pursuing his matter on 20 October 2017. He failed to give a full explanation for his non-compliance.

[17] I am also not convinced that there are prospects of success. The Applicant failed to present any evidence to distinguish his case from that of Mr Sibende, who was dismissed for the same offence. Clearly, the argument that Pick n’ Pay was inconsistent in the application of discipline is unsustainable.

[18] Equally, the argument that the sanction of dismissal is inappropriate is unsustainable. It is well accepted that fraud is a serious misconduct that renders continued employment intolerable; moreover, if committed by a senior employee. As well, the length of service can be of no relevance when a serious offence has been committed. [3]

[19] Lastly, there was no undue delay in instituting the disciplinary hearing as Pick ’n Pay was conducting a wide scale investigation throughout their shops and the allegations of impropriety at the Polokwane shop came to the attention of Pick ’n Pay on May 2016.

Conclusion

[20] In conclusion, Mr Molefe has not shown good cause for the late filing of the review application. It should therefore follow that the application for condonation stands to be dismissed.

Costs

[21] Pick n’ Pay has sought a cost order. However, I am not persuaded that the facts and circumstances of the case calls for a cost order. In any event, the rule that costs follow the result does not apply in this Court.

[22] In the circumstances, I make the following order is made:

Order

1. The condonation application is dismissed.

2. Consequently, the review application is dismissed.

3. There is no order as to costs.

T. Nsibanyoni

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr. Bouwer from Cavangh and Richards Attorneys

For the Third Respondent: Adv. K Naidoo

Instructed by: Kapditwala Inc. t/a Dentons S.A

[1] 2014 (2) SA 68 (CC); 2014 (1) BCLR 65 (CC) (Grootboom) at para 22-23. See also Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532- E.

[2] 2019 (7) BCLR 826 (CC); (2019) 40 ILJ 1731 (CC) (Steenkamp).

[3] Zondo AJP in Toyota South Africa Motors (Pty) Ltd v Douglas Radebe and Others [2000] 3 BLLR243 (LAC) held that: ‘I hold that the first respondent’s length of service in the circumstances of this case was no relevance and could not provide, and should not have provided, any mitigation for misconduct of such a serious nature…’

[3] Zondo AJP in Toyota South Africa Motors (Pty) Ltd v Douglas Radebe and Others [2000] 3 BLLR243 (LAC) held that:

‘I hold that the first respondent’s length of service in the circumstances of this case was no relevance and could not provide, and should not have provided, any mitigation for misconduct of such a serious nature…’