National Union of Mineworkers and Another v Commission for Conciliation Mediation and Arbitration and Others (C249/2010) [2011] ZALCCT 63 (26 May 2011)

National Union of Mineworkers and Another v Commission for Conciliation Mediation and Arbitration and Others (C249/2010) [2011] ZALCCT 63 (26 May 2011)

The court found that the commissioner materially erred in calculating the length of delay for the referral of the unfair dismissal dispute. The referral was only two days late, not seven months and 24 days as determined by the commissioner. The erroneous calculation led the commissioner to characterize the delay as 'extreme' and 'excessive', which was the principal ground for refusing condonation. The commissioner failed to apply the correct legal principles as set out in Weltevrede Kwekery and other authorities, resulting in a denial of a fair hearing to the applicants. This material error of law rendered the ruling reviewable and necessitated its setting aside.

Citation
[2011] ZALCCT 63
Parties
Applicant: National Union of Mineworkers; Applicant: T Mthombeni; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: K Kock N.O.; Respondent: Good Hope Bricks (Pty) Ltd t/a Cape Brick
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
26 May 2011
Case Number
C249/2010
Procedural Posture
Review Application / Application for Review of CCMA Condonation Refusal
Outcome
The commissioner’s ruling refusing condonation is reviewed and set aside. The condonation application is referred back to the CCMA for fresh determination before a different commissioner.
Judges
Van Voore
Legal Topics
Condonation, Unfair Dismissal, Review of Arbitral Award, Late Referral, Section 191 Lra
Labour Law Civil Procedure Condonation Unfair Dismissal Review of Arbitral Award Late Referral Section 191 Lra

Case Brief

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Parties

National Union of Mineworkers

Applicant

T Mthombeni

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

K Kock N.O.

Respondent

Good Hope Bricks (Pty) Ltd t/a Cape Brick

Respondent

Procedural Posture

Review Application / Application for Review of CCMA Condonation Refusal

Legal Issues

  1. 1 Whether the referral of the unfair dismissal dispute to the CCMA was late and required condonation.
  2. 2 Whether the commissioner correctly calculated the length of delay in the referral.
  3. 3 Whether the commissioner applied the correct legal principles in refusing condonation.

Ratio Decidendi

The court found that the commissioner materially erred in calculating the length of delay for the referral of the unfair dismissal dispute. The referral was only two days late, not seven months and 24 days as determined by the commissioner. The erroneous calculation led the commissioner to characterize the delay as 'extreme' and 'excessive', which was the principal ground for refusing condonation. The commissioner failed to apply the correct legal principles as set out in Weltevrede Kwekery and other authorities, resulting in a denial of a fair hearing to the applicants. This material error of law rendered the ruling reviewable and necessitated its setting aside.

Court Disposition

The commissioner’s ruling refusing condonation is reviewed and set aside. The condonation application is referred back to the CCMA for fresh determination before a different commissioner.

Orders

  • The ruling by the Second Respondent is reviewed and set aside.
  • The condonation application is referred back to the CCMA for fresh determination before a commissioner other than the Second Respondent.