Mpheroane v Makhubela NO and Others (JR 1997/2020) [2023] ZALCJHB 235 (11 August 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 1997/2020

In the matter between:

KGABO PETRUS MPHEROANE Applicant and M E MAKHUBELA N.O First Respondent COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION Second Respondent SHOPRITE CHECKERS (PTY) LTD Third Respondent

Heard: 8 August 2023

Delivered: 11 August 2023

JUDGMENT

PRINSLOO J

Introduction

[1] The Applicant filed an application to review and set aside a condonation ruling dated 16 November 2020 and issued under case number GATW12603-20. The First Respondent (arbitrator) refused to grant condonation for the late referral of the Applicant’s unfair/constructive dismissal dispute.

[2] The Third Respondent (Respondent) opposed the application.

Material background facts

[3] The Respondent employed the Applicant from July 2014 until 4 August 2020 as a ‘non-food assistant’ at the Raslouw store. On 4 August 2020, the Applicant was caught on camera, eating the Respondent’s products, which is an offence for which employees have historically been dismissed. The Applicant was approached by the Respondent’s divisional loss prevention manager as well as the regional administration manager at the Raslouw store, who informed him that he was caught on camera and he was shown the video footage.

[4] The Respondent’s version, which has not been disputed, is that after viewing the video footage, the Applicant was informed that he had committed misconduct and that he would be subjected to a disciplinary enquiry and, as his conduct constituted theft, the Respondent reserved its right to open a criminal case. Pursuant to this, the Applicant resigned.

[5] In his letter of resignation, dated 4 August 2020 and signed by the Applicant, he stated inter alia that “I resign as of immediate effect because I was caught on camera. My resignation is out of own free will”.

[6] On 5 October 2020, the Applicant referred a constructive dismissal dispute to the Second Respondent. The dispute was filed outside the prescribed 30-day period and the Applicant sought condonation for the late referral of the aforesaid dispute.

[7] The arbitrator refused to grant condonation and the said ruling is the subject of this review application.

The condonation application

[8] In order to assess the arbitrator’s findings and the ruling she ultimately issued, it is necessary to consider the evidence placed before her.

[9] The Applicant submitted an application for condonation in respect of his unfair dismissal dispute and although he did not calculate the degree of lateness, he stated that he went to the Department of Labour, in pursuing his rights. The Applicant did not provide any explanation as to the reason for the late referral, notwithstanding the fact that the pro-forma form he completed, made provision for that.

[10] In respect of the prospects of success, the Applicant stated that: “My company they installed the spire [sic] cameras for a month. So that month I eat one thing so company give me two option – you resign or we call police. Me I choose police so they take me to waiting area. When am in waiting area she send two managers to force me to resign”. The Applicant also did not address the issue of ‘prejudice’ at all, notwithstanding that the pro-forma form made provision for that.

The test for the grant of condonation

[11] The relevant legal principles to be applied in an application for condonation, are well established. The court or relevant tribunal has a discretion, which must be exercised judicially on a consideration of the facts of each case and in essence, it is a matter of fairness to both sides.[1]

[12] Condonation for delays in all labour law litigation is not simply there for the taking. The starting point is that an applicant in an application for condonation seeks an indulgence and bears the onus to show good cause.

[13] In Melane v Santam Insurance Co Ltd[2] (Melane), it was held that:

‘…. Among the facts usually relevant are the degree of lateness, the explanation therefor, 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 piecemeal approach

incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting

condonation… What is needed is an objective conspectus of all the facts.’

[14] The approach that, in the absence of a satisfactory explanation for a delay, the applicant’s prospects of success are ordinarily

irrelevant, has been conventionally applied[3] and was confirmed in National Education Health and Allied Workers Union on behalf of Mofokeng and others v Charlotte Theron Children’s Home[4] where the Labour Appeal Court (LAC) held that without a reasonable and acceptable explanation for a delay the prospects of success are immaterial.

[15] An applicant in an application for condonation bears the onus to satisfy the court or tribunal that condonation should be granted and it is incumbent upon such applicant to provide a full explanation for every period of the delay. The explanation for the delay must be both comprehensive and persuasive and should cover every period of the delay.

[16] In IMATU obo Zungu v SALGBC and others,[5] the principle was confirmed that it is not sufficient simply to list significant events that occurred during the period in question as that does not assist the court (or a tribunal) properly to assess the reasonableness of the explanation.

The condonation ruling

[17] The issue to be decided by the arbitrator was whether condonation should be granted for the late referral of the Applicant’s unfair dismissal/constructive dismissal dispute.

[18] The arbitrator recorded the Applicant’s submissions made in support of his application. In her analysis of the submissions and the factors to be considered in an application for condonation, the arbitrator recorded that the referral was 32 days late, which she found not excessive. The arbitrator however refused to grant condonation because the Applicant has not shown good cause.

[19] In respect of the explanation for the delay, the arbitrator recorded that the Applicant failed to provide a reason for the late referral of his dispute. She found that the Applicant had acknowledged that he was dismissed for theft and that his dispute was that he was forced to resign. Ultimately, the arbitrator found that the Applicant failed to show that he has any prospect of success and as such, condonation should not be granted.

The test on review

[20] I have to deal with the merits of the review application within the context of the test this Court must apply in deciding whether the arbitrator's decision is reviewable. The test has been set out in Sidumo and Another v Rustenburg Plati num Mines Ltd and Others[6] as whether the decision reached by the commissioner is one that a reasonable decision maker could not reach. The Constitutional Court very clearly held that the arbitrator's conclusion must fall within a range of decisions that a reasonable

decision maker could make.

[21] The review test is a stringent and conservative test of reasonableness. The Applicant must show that the arbitrator arrived at an unreasonable result.

[22] In Bestel v Astral Operations Ltd and others,[7] the LAC considered the limited scope possessed by this Court to review an arbitration award and accepted that an arbitrator’s

finding will be unreasonable if the finding is unsupported by any evidence, if it is based on speculation by the arbitrator, if it is disconnected from the evidence, if it is supported by evidence that is insufficiently reasonable to justify the decision or if it was made in ignorance of evidence that was not contradicted.

[23] The LAC in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and others[8] affirmed the test to be applied in review proceedings and held that:

‘In short: A reviewing court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts presented at the hearing and came to a conclusion that is reasonable.’

[24] The review Court must consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision maker could make based on the facts placed before him/her.

[25] In Parliament of the Republic of South Africa v Commission for Conciliation, Mediation and Arbitration and others,[9] it was held that:

‘[13] This Court accepts that when considering applications for condonation, Commissioners enjoy a wide discretion and the Courts should be cautious when interfering with decision arrived at by Commissioners in the light of that wide discretion.

[14] The applicable test before the Court can interfere with a Commissioner’s discretionary decision is whether or not it can be said that the discretion was exercised “capriciously, or upon a wrong principle, or in a biased manner, or for insubstantial

reasons. Thus, the test is whether the Commissioner committed a misdirection, an irregularity, or failed to exercise his or her

discretion, or exercised it improperly or unfairly”.’

[26] In Cowley v Anglo Platinum and others[10], where it was held that;

‘When a Commissioner is endowed with a discretion this court will be very slow to interfere with the exercise of that discretion. The commissioner’s

exercise of discretion will be upset on review if the applicant shows, inter alia, that the commissioner committed a misdirection or irregularity; or that he/she acted capriciously, or upon a wrong principle, or in bad faith, or unfairly, or that in exercising the discretion the commissioner reached a decision that a reasonable decision-maker

could not reach. If it is clear that the commissioner exercised such discretion judiciously and fairly after taking into consideration all the relevant facts this Court will not interfere with the exercise of such discretion.’

[27] The ultimate question is whether, holistically viewed, the decision taken by the arbitrator was reasonable based on the evidence placed before her. I have to consider this question taking into account the evidence that was placed before the arbitrator, the ruling she had issued and the grounds for review raised by the Applicant.

Grounds for review and analysis

[28] It is evident from her ruling that the arbitrator was well aware of the fact that the Applicant had to show good cause and that she was guided by the factors to be addressed in an application for condonation, namely the degree of lateness, the reasons for the lateness, prospects of success and prejudice.

[29] In considering whether or not to grant condonation, the arbitrator had to consider the aforesaid factors, thus the legal requirements or the law, the facts placed before her and exercise her discretion on an objective conspectus of the law, applied to the facts.

[30] In his founding affidavit, the Applicant conceded that he did not calculate the degree of lateness as he did not know how to calculate it. This is of no consequence as the arbitrator calculated the degree of lateness and found it not excessive.

[31] He further conceded that he did not complete paragraph 3 in his application for condonation which required him to set out the reasons why he had referred the matter late. He explained that he did not understand what was required of him. The Applicant failed to explain to this Court what about “the reason/s that the applicant referred the matter late” as it appears in the application form, he did not understand. He also does not explain what steps he took to get an understanding of what was required of him or what assistance he sought. The CCMA advised the Applicant that his referral was late and that he had to apply for condonation, he was provided with the application form and it is inconceivable that no further assistance would have been provided, had he asked for it.

[32] Be that as it may, the Applicant has raised three issues in his founding affidavit as grounds for review. The first is that he was deprived of a fair hearing because when the condonation application was set down, the arbitrator did not enquire from him why he had not completed paragraph 3 of the condonation application and she did not enquire from him what the reasons were that he had not referred his matter timeously. The Applicant submitted that had the arbitrator made “this material and very simple enquiry” he would have been able to provide her with the facts.

[33] In my view, there is no merit in this ground for review.

[34] Rules 31(9) and (10) of the Rules for the Conduct of Proceedings before the CCMA[11] provides that the CCMA may determine an application by considering the documents filed, or if it is considered appropriate, allocate a hearing date, provided that the parties are informed accordingly. In casu, the matter was scheduled for an in limine hearing and was decided on paper. It is evident from the Applicant’s founding affidavit that he had discussions with the arbitrator on the date the matter was set down for an in limine hearing.

[35] The Applicant’s complaint that the arbitrator should have enquired from him the reasons why he failed to complete paragraph 3 of the application as well as the reasons for the late referral of his dispute, is without merit. The Applicant completed the application for condonation, without telling this Court whether he made any attempt to get assistance or whether the arbitrator refused to assist him, despite his request for assistance. The Applicant’s application for condonation was his version under oath. He was not at liberty to introduce more facts and tender an explanation that was not part of his version under oath in the process of an in limine hearing.

[36] The Applicant cannot blame the arbitrator for his own failure to fully complete his application for condonation. It is inconceivable that the Applicant could understand that he had to complete some paragraphs in his application and had to provide selective information, when the form is clear on what information is to be provided in the application for condonation.

[37] There is nothing untoward in deciding the application for condonation on paper as the Applicant had submitted a written application, under oath, setting out his version and there was no opposition to his application and the arbitrator was entitled to consider what was placed before her. The Applicant failed to make out a case that he was deprived of a fair hearing. He can only blame himself for not properly completing the application and not putting forward all the necessary facts.

[38] The second ground for review is that the Applicant is a layperson, which should have been clear to the arbitrator, and notwithstanding this, she failed to extend him a helping hand in respect of procedural issues. As such, the arbitrator failed in her duties and “the ruling suffers from a gross irregularity in procedure”.

[39] The Applicant failed to tell this Court what procedures the arbitrator failed to explain to him. If I were to accept that his complaint is that the arbitrator had to extend a helping hand in assisting him with the completion of his application for condonation, it is without merit.

[40] In Xayiya v African National Congress and another,[12] the Court also dealt with a review of a condonation ruling and held that:

‘[26] …The contention made by applicant's counsel that the CCMA was duty bound in terms of the Constitution and/or the LRA to actively assist in preparing his application for condonation has no merit. Even if there was such a positive duty, it would not have helped him in any event as he did not have good and acceptable grounds for condonation in the first place.

Moreover, the only section of the LRA which comes close to supporting this contention may be found in section 148 under the heading: "Commission may provide advice" and which provides:

“(1) If asked (my emphasis), the Commission may advise any party to a dispute in terms of this Act about the procedure (my emphasis) to be followed for the resolution of that dispute.

(2) In response to a request for advice, the Commission may provide the advice that it considers appropriate."

It is to be noted that there is no record that the applicant asked the Commission for any advice - this does not appear from his founding papers. Secondly it will be noted that the nature of any advice given is about the procedure to be followed and not the substantive merits of any case. However, and importantly, the application for condonation as made by applicant on a pro forma standard form prepared by the Commission itself as an aid to a party and which provides the relevant headings under which the information in support of an application for condonation may be brought. The applicant duly filled in this form and in my view the Commission more than acquitted whatever obligations may have been cast upon it. For the Commission to be duty bound to assist every applicant in an application for condonation or indeed any other matter on the basis as contended for by applicant, would put the Commission out of business in a very short time.

There is also no constitutional basis for upholding the contentions made by applicant's counsel in this regard.’

[41] The same applies in casu. The arbitrator was not duty bound to assist the Applicant in the completion of his application and her failure to do so does not constitute a reviewable irregularity.

[42] Thirdly, the Applicant submitted that, although paragraph 3 of the condonation application was left blank, the application was not entirely silent on the steps he took because he had mentioned that he had approached the Department of Labour, an aspect which was overlooked by the arbitrator.

[43] This ground for review is without merit as it loses sight of the fact that the arbitrator dismissed the application for condonation because no good cause was shown. The fact that the arbitrator failed to deal with the Applicant’s contention that he had contacted the Department of Labour is of no consequence. Even if the arbitrator considered this fact, it would not have had any material impact on the outcome of the condonation application. The arbitrator specifically considered the paragraph dealing with the prospects of success, which the Applicant completed and found that he has failed to show that he has a chance of succeeding in his dispute.

[44] The Applicant seeks to pursue a case for constructive dismissal. Section 186(1)(e) of the Labour Relations Act[13] (LRA) defines a constructive dismissal to mean that an employee terminated a contract of employment with or without notice because

the employer made continued employment intolerable. Where an employee claims constructive dismissal, the onus is on the employee to prove that the resignation was not voluntary and that it was not the intention to terminate the employment relationship. This Court has previously considered what an employee must prove to claim constructive dismissal, namely that:[14]

1. He or she terminated the contract of employment;

2. continued employment became intolerable for the employee;

3. the employer must have made continued employment intolerable.

[45] In Pretoria Society for the Care of the Retarded v Loots,[15] the LAC held that when an employee resigns as a result of constructive dismissal, the employee is in fact indicating that the situation has become so unbearable that the employee cannot work. Effectively, the employee is saying that he or she would have carried on working indefinitely had the unbearable situation not been created. The employee resigns because he or she does not believe that the employer will ever reform or abandon the pattern of creating an unbearable work environment. If this assumption was wrong and the employer proves that the employee’s fears were unfounded, there was no constructive dismissal but in fact a resignation.

[46] In his application for condonation, the Applicant stated that he was caught on camera eating the Respondent’s stock and as such, he was given an option to resign or for the police to be called. In the papers before this Court, there is a resignation letter signed by the Applicant wherein he stated that his resignation was voluntarily because he was caught on camera.

[47] In his application for condonation, the Applicant did not make a single averment that would sustain or support a case of constructive dismissal, considering the aforesaid principles applicable to constructive dismissal disputes. It is telling that in this application for review, not a single statement is made in respect of his prospects of success or why the arbitrator was wrong or unreasonable to find that he has no prospect of success.

[48] In Melane it was confirmed that if there are no prospects of success, there will be no point in granting condonation.

[49] The Applicant, on his own version and based on the facts presented, has no prospect of succeeding with a claim for constructive dismissal. If there are no prospects of success, there is no point in granting condonation. This is not a case where the arbitrator ‘overlooked material evidence’, it is rather a case where the Applicant has no prospect of success and his case is not one for which condonation could be granted.

[50] There is no merit in any of the grounds for review, for reason fully dealt with supra.

Conclusion

[51] I have to consider the grounds for review within the context of the test this Court must apply in deciding whether the arbitrator's decision is reviewable. The arbitrator exercised her discretion and she refused condonation. No case has been made out that the exercise of her discretion was not done judicially or fairly, after taking into consideration all the relevant facts.

[52] The ultimate question is whether holistically viewed, the decision taken by the arbitrator was reasonable based on the evidence placed before her. I have considered this question and I conclude that the arbitrator’s findings fall within a band of reasonableness based on the evidence that was placed before her and are not to be interfered with on review.

Costs

[53] This Court has a wide discretion in respect of costs.

[54] In argument, Ms Masuku for the Respondent did not seek a cost order against the Applicant.

[55] In the premises, I make the following order:

Order

1. The application for review is dismissed;

2. There is no order as to costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

In person

For the Third Respondent:

Ms Masuku from Wilken Inc Attorneys

[1] D Harms, ‘Civil Procedure in the Superior Court’, (LexisNexis) at B27.6.

[2] 1962 (4) SA 531 (A) at 532 C - F.

[3] See NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC).

[4] (2004) 25 ILJ 2195 (LAC) at para 23.

[5] (2010) 31 ILJ 1413 (LC).

[6] [2007] ZACC 22; (2007) 28 ILJ 2405 (CC) at para 110.

[7] [2010] ZALAC 19; [2011] 2 BLLR 129 (LAC) at para 18.

[8] [2013] ZALAC 28; (2014) 35 ILJ 943 (LAC) at para 16.

[9] [2018] ZALCCT 12 (24 April 2018) at paras 13 – 14.

[10] [2016] JOL 35884 (LC) at para 21.

[11] GNR 3318 of 21 April 2023.

[12] [2000] 4 BLLR 477 (LC) at para 26.

[13] Act 66 of 1995, as amended.

[14] Eagleton and others v You Asked Services (Pty) Ltd (2009) 30 ILJ 320 (LC) at para 22.

[15] (1997) 18 ILJ 981 (LAC).