Ngomane and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR1582/2019) [2021] ZALCJHB 306 (15 September 2021)

Ngomane and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR1582/2019) [2021] ZALCJHB 306 (15 September 2021)

The court found that the applicants' explanation for the delay in referring the dispute to the CCMA was reasonable, as they had made follow-ups with their union representative and did not abandon their case. The second respondent failed to properly apply his mind to this explanation, amounting to a gross irregularity. However, the court also considered that, in condonation applications, prospects of success are critical. The second respondent's finding that the applicants lacked prospects of success was based on an unsupported opinion and a mischaracterization of the misconduct alleged. The cumulative effect was that the second respondent's ruling was unreasonable and must be set aside....

Citation
[2021] ZALCJHB 306
Parties
Applicant: Thembinkosi Doctor Ngomane; Applicant: Mokhele Alber Mathibela; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Ntsepeng Benault Mookamedi N.O.; Respondent: Modikwa Platinum Mine
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
15 September 2021
Case Number
JR1582/2019
Procedural Posture
Review Application / Judgment on Review and Condonation
Outcome
The review application succeeds. The second respondent's ruling is reviewed and set aside. The late referral of the unfair dismissal dispute is condoned. The dispute is remitted to the CCMA for arbitration before a different commissioner. The applicants are ordered to pay the third respondent's costs occasioned by...
Judges
M Baloyi
Legal Topics
Condonation, Unfair Dismissal, Gross Irregularity, Review of Arbitration Award, Prospects of Success
Labour Law Civil Procedure Condonation Unfair Dismissal Gross Irregularity Review of Arbitration Award Prospects of Success

Case Brief

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Parties

Thembinkosi Doctor Ngomane

Applicant

Mokhele Alber Mathibela

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Ntsepeng Benault Mookamedi N.O.

Respondent

Modikwa Platinum Mine

Respondent

Procedural Posture

Review Application / Judgment on Review and Condonation

Legal Issues

  1. 1 Whether the late referral of the unfair dismissal dispute to the CCMA should be condoned.
  2. 2 Whether the second respondent committed a gross irregularity in refusing condonation.
  3. 3 Whether the review application was filed timeously.

Ratio Decidendi

The court found that the applicants' explanation for the delay in referring the dispute to the CCMA was reasonable, as they had made follow-ups with their union representative and did not abandon their case. The second respondent failed to properly apply his mind to this explanation, amounting to a gross irregularity. However, the court also considered that, in condonation applications, prospects of success are critical. The second respondent's finding that the applicants lacked prospects of success was based on an unsupported opinion and a mischaracterization of the misconduct alleged. The cumulative effect was that the second respondent's ruling was unreasonable and must be set aside....

Court Disposition

The review application succeeds. The second respondent's ruling is reviewed and set aside. The late referral of the unfair dismissal dispute is condoned. The dispute is remitted to the CCMA for arbitration before a different commissioner. The applicants are ordered to pay the third respondent's costs occasioned by...

Orders

  • The ruling issued by the second respondent dated 25 March 2019 under case number LP 1847/2019 is reviewed and set aside.
  • The late referral of unfair dismissal under case number LP 1847/2019 is condoned.