Municipal Employees and Civil Servants Union obo Motsepe v South African Local Government Bargaining Council and Others (JR764/23) [2024] ZALCJHB 393 (17 September 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JR764/23

In the matter between:

MUNICIPAL EMPLOYEES AND CIVIL SERVANTS UNION (MECSU) OBO BNO MOTSEPE Applicant and SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL (SALGBC) First Respondent ADV PALESA MAWASHA-SHAI N.O. Second Respondent CITY OF EKURHULENI METROPOLITAN MUNICIPALITY Third Respondent

Heard: 11 September 2024

Delivered: 17 September 2024

(This judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be on 17 September 2024.)

JUDGMENT

MYBURGH, AJ

[1] This is an unopposed application to review and set aside a condonation ruling issued by the second respondent (commissioner). In

her ruling, the commissioner refused to condone the late referral of a dismissal dispute by the applicant (MECSU) on behalf of Mr Motsepe to the first respondent (bargaining council) arising from his dismissal by the third respondent (Metro).

The factual matrix

[2] Mr Motsepe was employed as a metro police officer. He was dismissed after having been found guilty of, amongst others, shooting two members of the public (one of whom died) using his official firearm during a road rage incident while off duty.

[3] For the purposes of the review against the condonation ruling, the following chronology of events is common cause:

a) Mr Motsepe was dismissed on either 5 December 2022 (the date of the dismissal letter relied on by the Metro) or 12 December 2022 (when he says the dismissal letter was served on him).

b) In terms clause 17.1 of the Disciplinary Procedure Collective Agreement (DPCA) an employee has the right of appeal against a dismissal, but may waive such right and proceed directly to refer a dismissal dispute to the bargaining council. Where the appeal route is chosen, the appeal must be lodged within seven days of notification of dismissal. (Days are defined in DPCA as working days.)

c) On 14 December 2022, MECSU (Mr Motsepe’s union) lodged an internal appeal against Mr Motsepe’s dismissal in terms of

clause 17.1 of the DPCA.

d) In terms of clause 17.4 of the DPCA, an appeal hearing shall commence not later than ten days from the date that the notice of appeal is lodged.

e) The deadline for the commencement of the appeal hearing was 4 January 2023 (due regard being had to intervening public holidays and days that were declared not to be working days by the Metro).

f) On 12 January 2023, after the aforesaid deadline had come and gone, MECSU referred an unfair dismissal dispute to the bargaining council.

g) On 24 January 2023, the Metro advised of the set down of the appeal hearing on 31 January 2022.

h) The internal appeal hearing was convened on 31 January 2023, but due to the absence of Mr Motsepe and MECSU, the appeal was dismissed.

i) On 24 February 2023, the commissioner presided over the conciliation of the dispute, which was attended by both parties. On that day, the commissioner – having raised the issue herself – made this ruling:

“1. The applicant’s referral is approximately 1 (one) day late. It was filed and served upon the Council and the respondent on the 12th of January 2023 whereas the last day to refer was the 11th of January 2023.

2. The applicant party is directed to apply for the condonation of the late referral by no later than the 3rd of March 2023.”

j) On 3 March 2023, MECSU brought its application for condonation supported by an affidavit by Mr Motsepe, with answering and replying

affidavits having followed.

k) The commissioner determined the matter on the papers without hearing argument.

[4] In his affidavit in support of the application, Mr Motsepe reasoned thus: he was dismissed on 12 December 2022 when the dismissal letter (dated 5 December 2022) was served on him; the failure by the Metro to commence with the appeal hearing on 4 January 2023 (this being the last day of the prescribed 10-day period) amounted to it having made “a final decision to … uphold the dismissal” in terms of section 191(1)(b)(i) of the LRA on that day – the result of this being that, in terms of the aforesaid section, the bargaining council referral ought to have been made within 30 days of 4 January 2023 and was (on 12 January 2023). I refer to this below as “Mr Motsepe’s section 191(1) contention”, the import of which is that condonation was not required.

[5] In its opposing affidavit, the Metro contended that Mr Motsepe was dismissed on 5 December 2022, that his referral ought to have been made by 4 January 2023, and that the referral made on 12 January 2023 was therefore eight days late. Regarding Mr Motsepe’s section 191(1) contention, the Metro pleaded that “the applicant merely assumes that the appeal hearing set-down period had lapsed” and “avers that this is not a sufficient explanation for the late referral of the dispute”.

[6] Both sets of affidavits deal with prospects of success in some detail. The following emerges as common cause on this front: at

approximately 19:00 on Sunday, 12 July 2020, a road rage incident occurred, during which two members of the public were shot –

one was seriously injured and the other killed; Mr Motsepe’s private vehicle (a VW Golf) was on the scene and the firearm used was Mr Motsepe’s official firearm (a 9 mm parabellum). According to Mr Motsepe, he had given the VW Golf to his cousin some time back, and his cousin had, unbeknown to him, removed (and then returned) his firearm from his house on the day in question. The Metro, on the other hand, contended (as found at the disciplinary enquiry) that Mr Molefe was the perpetrator of the shooting.

The condonation ruling

[7] As a point of departure, this statement by the commissioner under the heading “background to the issue” warrants mention:

“[5] The applicant referred an alleged unfair dismissal dispute to the Council on the 12th of January 2023. The applicant stated that dismissal took place on the 5th of December 2022, during the conciliation I rendered a jurisdictional ruling as the matter was referred late.”

[8] The ensuing ratio of the commissioner’s condonation ruling comprises the four paragraphs quoted below.

[9] To begin with, the commissioner found that Mr Motsepe was dismissed on 5 December 2022 and not on 12 December 2022:

“[14] The respondent dismissed the applicant on the 5th of December 2022 and the referral was made to the Council on the 12th of January 2023. The respondent attached an outcome of the appeal hearing stating that the applicant was dismissed as of the 3rd of December 2022 and that he was notified of his dismissal on the 5th of December 2022. The outcome is signed at the bottom of the page. The applicant alleged that he only became aware of his dismissal on the 12th of December 2022, no other substantiating evidence was provided to prove that he only became aware of his dismissal on the 12th of December 2022. On a balance of probabilities the applicant received the outcome of his disciplinary hearing on the 5th of December 2022, due to the documentary evidence submitted to this condonation (sic).”

[10] The commissioner went on to find that the referral of the dispute was eight days late and that the delay was not adequately explained:

“[16] The referral is approximately 8 (eight) days late, as the applicant was dismissed on the 5th of December 2022. The degree of lateness is not excessive. The applicant did not adequately address the aspect of the degree of lateness or the reasons thereof, as at least by the 23rd of December 2022 or in the alternative by the 3rd of January 2023 if it was 10 business days, the applicant was certain that his dismissal stood. On his own version, he stated that the appeal request was made on the 14th of December 2022 and that 10 days thereafter the appeal should have been set down. So by the 4th of January, being the last day of referral, the dispute should have been referred, but the referral was only made on the 12th of January 2023.”

[11] The commissioner then proceeded to deal with Mr Motsepe’s prospects of success, finding that they were slim:

“[17] The court in the matter of Total Facilities Management v CCMA & others [2007] ZALC 53; [2008] 1 BLLR 73 (LC), held that in considering the prospects of success, the commissioner does not have to pronounce on the merits of the case. All that the commissioner needs to do is to investigate whether on the averments made by the applicant there is a chance of succeeding when the main dispute is heard. Therefore, the applicant need not deal with the merits of the case during a condonation application. When considering the prospects of success of this dispute in the main, it can be sufficiently determined on a balance of probabilities, that the prospects of success of the applicant’s case are slim. The explanation proffered by the applicant, did not address the aspect of negligence in that, his “cousin-brother” easily accessed his Council issued weapon, which is an act of

misconduct on its own. Further to same, witnesses identified the applicant as having been the perpetrator in the road rage incident.”

[12] The commissioner went on to conclude:

“[18] In light of the above, when considering the facts of this application, the submissions made by the parties as well as the attachments, which served as documentary evidence in support of the dismissal of the condonation application, the dispute has not been diligently pursued. There were no reasons for lateness proffered in law, which makes the granting application unreasonable (sic).”

Is the condonation ruling reasonable?

[13] To begin with, the commissioner’s central finding (in paragraph 14 of the ruling) that Mr Motsepe was dismissed on 5 and not 12 December 2022 is unreasonable. The outcome report of the disciplinary appeal enquiry does not state (as found by the commissioner) that Mr Motsepe “was dismissed as of the 3rd of December 2022 and that he was notified of his dismissal on the 5th of December 2022”; instead it records that “Mr Motsepe was dismissed by way of a letter dated 5 December 2022 following a sanction report dated 3 December 2022 from the presiding officer of the disciplinary hearing”. Furthermore, insofar as it is to be inferred from the commissioner’s finding that the outcome report was “signed at the bottom of the page” that she was of the view that Mr Motsepe signed it, there was nothing before her to support this and no such contention was made by the Metro. In sum, the outcome report – which states only that Mr Motsepe was dismissed by way of a letter dated 5 December 2022 – does little to resolve the controversy about when the letter was received.

[14] On the papers before the commissioner, the issue boiled down to this (all of which was ignored by her). Mr Motsepe stated under oath in his affidavit supporting the application for condonation that he was served with the dismissal letter on 12 December 2022, with this being corroborated by the fact that this is the date of dismissal recorded in his notice of appeal lodged on 14 December 2022. The deponent to the Metro’s answering affidavit stated only that “it is the respondent’s submission that the applicant was dismissed on 5 December 2022” (as per the date of the dismissal letter) – he did not respond to the paragraph in which Mr Motsepe stated that he was physically served with the letter on 12 December 2022 and plainly had no personal knowledge of this. In his replying affidavit, Mr Motsepe repeated that he only became aware of his dismissal on 12 December 2022 when he was served with the dismissal letter, and pointed out that he had acknowledged receipt of the letter on 12 December 2022 as per his handwritten annotation and signature that appears on it. In these circumstances, a reasonable commissioner would have found that Mr Motsepe was advised of his dismissal on 12 December 2022, and that this was thus the date of his dismissal.[1]

[15] This notwithstanding, the commissioner’s finding that Mr Motsepe was dismissed on 5 and not 12 December 2022 is at odds with

the jurisdictional ruling that she made on 24 February 2023, which was premised on Mr Motsepe having been dismissed on 12 December 2022. Regrettably, the commissioner’s description of the “background to the issue” (in paragraph 5 of the condonation ruling) is inaccurate: Mr Motsepe’s case at conciliation was that he was dismissed on 12 December 2022; the commissioner accepted this and thus ruled that he had to apply for condonation because the referral was made one day late (on 12 January 2023). In the circumstances, I am inclined to agree with Mr Motsepe’s contention in his founding affidavit in the review that the commissioner and the parties were bound by the commissioner’s earlier finding that Mr Motsepe was dismissed on 12 December 2022.

[16] Turning to the commissioner’s findings about the explanation for the delay (in paragraph 16 of the ruling), they fall apart

because they are premised on her impermissible and unreasonable finding that Mr Motsepe was dismissed on 5 December 2022 and

that there was thus an eight-day delay. This notwithstanding, the commissioner’s finding that Mr Motsepe “did not adequately address the aspect of the degree of lateness or the reasons thereof”, was made without her coming to grips with Mr Motsepe’s section 191(1) construction. While the commissioner appears to have accepted that by 3 / 4 December 2022 Mr Motsepe “was certain that his dismissal stood” (this having been upon the expiry of the prescribed 10-day period for the convening of an appeal), she did not engage at all with the aforesaid construction – and thus with Mr Motsepe’s case.

[17] In my view, Mr Motsepe’s section 191(1) construction is not legally sound, because I am unpersuaded that one can construct a failure to convene an appeal enquiry within very tight time frames over the year-end holidays, as “a final decision

[by the Metro] … to uphold the dismissal” (as per section 191(1)(b)(i)). But it does not follow from this that Mr Motsepe’s construction – which he and MECSU appear to have believed in – cannot serve as an acceptable explanation

for the one-day delay in question. The referral was made on 12 January 2023 in circumstances where they believed that this fell

within the 30-day period reckoned from 4 December 2022; had they not laboured under this misapprehension, it would presumably have been made on the day before.

[18] This leaves the commissioner’s findings about prospects of success (in paragraph 17 of the ruling). The commissioner stated the test correctly: all that she needed to do was to consider whether on the averments made by Mr Motsepe, there is a chance of him succeeding at arbitration. But instead of doing this, the commissioner purported to undertake an exercise that led her to conclude that “it can be sufficiently determined on a balance of probabilities, that the prospects of success of [Mr Motsepe’s] case are slim”. This is the wrong enquiry.

[19] To add to the muddle, the commissioner then pulled the proverbial rabbit out of a hat in finding that Mr Motsepe’s explanation

“did not address the aspect of negligence in that, his ‘cousin-brother’ easily accessed his Council issued weapon, which is an act of misconduct on its own”. The commissioner presumably thought this to be a good point – the problem though is that it was not part of the charges and was not raised by the Metro in its answering affidavit before her, with this being why Mr Motsepe did not address it. To hold this against Mr Motsepe in these circumstances was grossly irregular.

[20] What is left is the commissioner’s finding that “witnesses identified the applicant as having been the perpetrator in the road rage incident”. While it is correct that a single witness (not “witnesses”) identified Mr Motsepe – because of the incorrect approach that she took to the prospects of success enquiry – the commissioner simply ignored Mr Motsepe’s comprehensive attack on the evidence of this witness in both his founding and replying affidavits that served before her. In short, on the averments made by Mr Motsepe in his affidavits, a reasonable commissioner would have found that there is a chance of him succeeding at arbitration. This is a light evidentiary test that applies specifically when condonation is sought, and its application should not be coloured by one’s own belief of whether the employee concerned was guilty of the misconduct in question.

[21] Regarding the commissioner’s conclusion (in paragraph 18 of the ruling), the constituent findings that “the dispute has not been diligently pursued” and that “there were no reasons for lateness proffered”, are utterly unreasonable. At worst, there was a trivial one-day delay in making the referral, and the reason for the lateness lies in Mr Motsepe’s section 191(1) construction, which was ignored by the commissioner.

[22] In the result, I am persuaded that the commissioner’s refusal to grant condonation was unreasonable. It is simply not a decision that a reasonable decision-maker could reach.[2]

Order

[23] Accordingly, the following order is made:

1. The second respondent’s condonation ruling is reviewed and set aside, and replaced with an order that the applicant is granted

condonation for the late referral of the dismissal dispute to the first respondent;

2. There is no order as to costs.

Myburgh, AJ

Acting Judge of the Labour Court of RSA

Appearances

For the applicant: union official

[1] Shoprite Checkers (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (1998) 19 ILJ 892 (LC) at para 20; First National Bank of South Africa v CCMA & others [2000] 12 BLLR 1429 (LC) at para 3.2.

[2] Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) at para 110.