NEHAWU obo Dlamini v Department of Justice and Constitutional Development and Others (J2970/14) [2016] ZALCJHB 561 (2 September 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no: J 2970/14

In the matter between:

NEHAWU OBO SIBUSISO JOHNSON DLAMINI

Applicant

and

DEPARTMENT OF JUSTICE AND CONSTITUTIONAL

DEVELOPMENT

First Respondent

GENERAL PUBLIC SERVICE SECTORAL

BARGAINING COUNCIL Second Respondent

COMMISSIONER LMS MELLO N.O

Third Respondent

Heard: 02 September 2016

Delivered: 02 September 2016

Date edited and signed: 14 October 2016

EX-TEMPORE JUDGMENT

PRINSLOO, J

[1] This is an application in terms of the provisions of section 158(1)(h) of the Labour Relations Act[1] (the LRA) whereby this Court may review any decision taken or any act performed by the State in its capacity as employer on such grounds as permissible in law. The Applicant seeks the review and setting aside of the internal appeal decision taken on 28 May 2011 not to reinstate him.

[2] A brief background to this matter is as follows: The Applicant was employed in March 2007 as a data capturer and cashier at the Magistrate Court in Cullinan. He was dismissed on 9 November 2010 after he was found guilty of misconduct on charges relating to theft and mismanagement of State funds.

[3] On 4 January 2011 the Applicant filed an appeal attacking the substantive and procedural aspects of his dismissal. The Applicant sought retrospective reinstatement. The appeal lodged was considered and the sanction of dismissal was upheld. The Applicant’s appeal was denied on 28 May 2011 and his service was subsequently terminated.

[4] On 20 April 2012, almost a year later, NEHAWU referred a dispute to the second respondent, the Government Public Service Bargaining Council (GPSSBC) with an application for condonation. On 19 October 2012 the GPSSBC refused the application for condonation. The Applicant has not taken the decision of the GPSSBC to refuse condonation on review. The Applicant filed an application for review with this Court on 8 December 2014.

[5] On 13 February 2014 the Magistrate’s Court acquitted the Applicant on charges of theft and fraud and he was discharged in terms of the provisions of section 174 of the Criminal Procedures Act. The Applicant’s case is that a criminal court found him not guilty of the crimes upon which the First Respondent (the Department) based the reasons for his dismissal. Given the fact that he has been cleared of all criminal charges and given the fact that the charges levelled against him at the disciplinary enquiry were the same, it cannot be said that he is guilty of misconduct and his dismissal is thus unfair.

[6] The Applicant seeks an order of retrospective reinstatement without the loss of remuneration or benefits. The Applicant’s averments are fundamentally flawed. The onus in internal disciplinary hearings is a balance of probabilities and in a criminal case the standard of proof is much higher in that the State must prove its case beyond reasonable doubt. Disciplinary proceedings in the workplace are not criminal proceedings and it is quite possible to prove misconduct on a balance of probabilities whilst a crime cannot be proved beyond reasonable doubt on the same set of facts.

[7] The Applicant’s argument that because he was cleared of criminal charges, it follows that he cannot be guilty of misconduct, thus his dismissal is unfair, is misconceived and not sustainable. Be that as it may, the Applicant now seeks a review and setting aside of the decision to uphold his dismissal taken on 28 May 2011. This application was only filed on 8 December 2014. Thus almost three and a half years after the decision he now seeks to review and set aside.

[8] The application was filed ten months after the Applicant was acquitted by the criminal court; and on his own version, that acquittal gave rise to this review application. The Department opposed this application and raised three points in limine. The points in limine are: firstly, that the Applicant cited the Department as the respondent and failed to comply with the State Liability Amendment Act in that the citation of the respondent as the Department should rather be a citation of the executive authority as the nominal defendant as provided for by the State Liability Act. The second point in limine is that the Court lacks jurisdiction and the third point relates to condonation.

[9] In my view, the first issue to be decided is the issue of condonation, as this Court will only have jurisdiction to adjudicate the matter if condonation is granted. The relevant legal principles in respect of the granting of condonation are well-established. This Court has a discretion that must be exercised, having regard to all the relevant factors and considerations. In the much quoted matter of Melane v Sanlam Insurance Company, the Court has held:

“Among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success, 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 there are. 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.’’

Condonation for delays in labour litigation is not simply there for the taking.

[10] The Applicant did not raise the issue of condonation in his founding papers and did not ask for condonation in his notice of motion. Only after it was raised in the Department’s opposing papers, did the Applicant address the issue. The Applicant’s response is set out in paragraph 11 of his replying affidavit. The sum total of submissions on the issue of condonation are contained in paragraph 11.3 to 11.7 of the replying affidavit and I quote from the affidavit:

“I firmly believe that upon receipt of an innocent verdict that the first respondent would acknowledge that a gross injustice had

prevailed and they would reconsider their decision to dismiss me. However, same was not to be. The not-guilty verdict was handed down on 13 February 2014 whereupon I immediately contacted my union who then sought legal advice before pursuing the matter further. I am of the opinion that I have good prospects of success, given the evidence at hand. In the event that the above honourable court should not grant condonation, I will be further prejudiced in this matter in that the full and proper ventilation of the reasons for dismissal would not have been addressed. I would be a victim of a false allegation whereupon my livelihood and income has been unjustly terminated.”

[11] The first issue that I have to consider is the degree of lateness. I have already alluded to the fact that the review application was filed almost three and a half years after the decision that the Applicant seeks to review was taken. The period is no doubt excessive. If the Applicant’s explanation is that he waited for the outcome of the criminal proceedings before he brought

this review application, it remained unexplained why this application was filed ten months after he received the acquittal in February

2014.

[12] This Court has considered reviews in terms of section 158 of the L RA as the Act does not prescribe a time limit for the filing of such an application. The Court has held that such an application should still be filed within a reasonable time and that a reasonable time cannot be more than the 180 days provided for in the Promotion of Administrative Justice Act. The Court also accepted that the same period of six weeks as for normal review applications would be applicable. Even if I were to accept that 180 days would be an acceptable period for filing the review application, the Applicant filed this application far outside the 180 days after he received the acquittal from the criminal court.

[13] The next issue I have to consider is the explanation for the delay. It is trite that in an application for condonation the applicant must provide a detailed explanation for every period of the delay to enable the court to understand why there was non-compliance with the prescribed, or in this instance reasonable timeframes. The explanation tendered by the Applicant is this: the Applicant was not in a position to pursue this matter until he received the outcome of his criminal trial, which he only received in February 2014. By the time the Applicant received the outcome, it was already two years and nine months after the decision he seeks to review, was taken. He should have known that whatever timeframe applied, any application would by that stage be late.

[14] Despite receiving the outcome in February 2014, the Applicant waited until December 2014 to file the review application. And for this further excessive period of delay he tenders no explanation at all. There is no explanation whatsoever and this Court is in no position to assess whether the explanation is plausible, satisfactory or acceptable at all. The delay is inordinate and excessive. The explanation for the delay is absent and it only leaves the prospects of success. The question I have to consider is whether there is any prospect that the Applicant could succeed with this application. The answer to that question is: no.

[15] The question is related to the department’s second point in limine. The Applicant seeks to review a decision to dismiss him and he further seeks an order that he be reinstated retrospectively without

loss of benefits or remuneration. In paragraph 25 of his founding affidavit the Applicant referred to Schedule 8 of the LRA and the fact that he did not have the benefit of a substantively and procedurally fair disciplinary process. He stated that he seeks

redress for his unfair dismissal. The redress he sought is to be found in the provisions of the LR A. The Act is very clear in section 191 and what is relevant to the issue I have to decide is section 191(1)(a) where the Act states as follows:

“If there is a dispute about the fairness of a dismissal or a dispute about an unfair labour practise, the dismissed employee or the employee alleging an unfair labour practise may refer the dispute in writing to a council, if the parties to the dispute fall within the registered scope of that council or to the commission if no council has jurisdiction.”

Also subsection (4):

“The council or the commission must attempt to resolve the dispute through conciliation.”

And subsection (5):

“If a council or commissioner has certified that the dispute remained unresolved 30 days or any further period as agreed between the parties has expired since the council or the commission received the dispute and the dispute remains unresolved, the council or the commission must arbitrate the dispute at the request of the employee.”

[16] It is evident from these provisions of the LRA that a dispute challenging the fairness of a dismissal for reasons related to the employee’s conduct must be referred to the Council, conciliated; and if it remains unresolved, must be arbitrated. This was confirmed by the Constitutional Court in the matter of Chirwa v Transnet where it was held that where an employee alleges non-compliance with the provisions of the LRA, the employee must seek the remedy in the L RA and such an employee cannot avoid the dispute resolution mechanisms provided for in the Labour Relations Act.

[17] The Constitutional Court held that to hold otherwise would frustrate the primary objects of the LRA; would allow bypassing of dispute resolution mechanisms specifically provided for and would give rise to forum shopping. A dispute about failure to comply with the provisions of Schedule 8 is a dispute that should be resolved under the dispute resolution provisions of the LRA.

[18] Not only is this Court bound by the dicta of the Constitutional Court in Chirwa[2], as I alluded to, but section 157(5) of the LRA specifically provides that this Court does not have jurisdiction to adjudicate disputes that should be resolved through arbitration. The Applicant’s dispute is one about the fairness of his dismissal and it is to be adjudicated via the process provided for in the Labour Relations Act. It is not open for the Applicant to approach this Court in terms of section 158(1)(h) to review a decision where the has a specifically crafted dispute resolution process that should be followed.

[19] In casu it is evident to me that the Applicant was aware of that process. Hence he referred his dispute to the bargaining council. However, it was referred late and condonation was not granted. That was indeed the correct route to be followed. And once that condonation was not granted, the Applicant’s remedy was to review that condonation ruling.

[20] In the matter of South African Revenue Services v The CCMA 2010 ILJ 1238 this Court has held that section 158(1)(h) of the LRA invites a broad interpretation of any decision or act of the State as employer. The Court further held that the section is narrowed by a purposive interpretation and the Court accepted what was said in Chirwa[3] about the interpretation of that section. and the Court proceeded in paragraph 49 of the judgment:

“One of the primary objects of the LRA was to create a predictable dispute resolution system accessible to all. A key feature of the carefully crafted system is the filtering of labour disputes through compulsory conciliation. Another compelling purpose was instilling parity in dispute resolution systems for private and public sectors. These purposes of the LRA will be thwarted if every decision or action of the state as an employer is challengeable on review under section 158(1)(h).

Furthermore, section 158(1)(h) does privilege parties in public employment over private employment. Hence to preserve and protect the scheme of the LRA, section 158(1)(h) should be interpreted narrowly and purposively. Therefore, a review under section 158(1)(h) should be available only when the LRA does not prescribe another procedure.

Following a narrow approach to section 158(1)(h), the word ‘review’ should be strictly interpreted to mean reconsider, re-examine, reassess and re-evaluate. Therefore, a party seeking a review may not raise new matter, that is, a matter not produced for consideration to the initial decision-maker.”

[21] Following this dicta in the Constitutional Court, this Court does not have jurisdiction to adjudicate a dispute where the LRA prescribes another procedure. In view of the fact that this Court does not have

jurisdiction to adjudicate this dispute, there is no prospect of success. The lack of jurisdiction is fatal to the Applicant’s

case and that has to be the end of the matter. On a conspectus of all the issues and for the reasons I have alluded to, this Court does not have jurisdiction to adjudicate this dispute.

That leaves me with the issue of costs. I canvassed the issue of costs with both parties, and both submitted that costs should follow the result. I can see no reason to deviate from the general rule that costs should follow the result.

Order

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

1. The application for review is dismissed for the lack of jurisdiction.

2. The Applicant to pay the costs.

______________________

Connie Prinsloo

Judge of the Labour Court

[1] Act 66 of 1995

[2] Supra

[3] Ibid