Numsa Obo Mnika v Feltex Holdings (Pty) Ltd and Others (D874/2012) [2014] ZALCD 81 (29 January 2015)

REPUBLIC OF SOUTH AFRICA

IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

JUDGMENT

Case no: D874/2012

DATE: 29 JANUARY 2015

Not Reportable

In the matter between:

NUMSA obo PRINCESS MNIKA......................................Applicant

And

FELTEX HOLDINGS (PTY) LTD............................First Respondent

COMMISSIONER J. PURSHOTAM..................Second Respondent

DISPUTE RESOLUTION CENTRE......................Third Respondent

Heard: 9 July 2014

Delivered: 29 January 2015

Summary:

PILLAY AJ:

[1] The Applicant was employed with the First Respondent as a machinist. She was dismissed on the 22nd of March 2012 due to her alleged participation in an illegal work stoppage which, according to the First Respondent, resulted in a delay in the production line and caused financial loss.

[2] The Applicant lodged an internal appeal against the dismissal, which was refused on the 4th of April 2012. The Applicant then referred an unfair dismissal dispute to the Third Respondent (the DRC) either on the 23rd or the 25th of May 2012.

[3] On either version, the referral to the DRC was out of time insofar as it should have been made by 22 April 2012.

[4] The Second Respondent, as Commissioner with the DRC, heard the application for condonation made by the Applicant but refused that application for the following reasons:

‘1. The Applicant gives a long explanation of the reasons for the referral being late. I am prepared to give her the benefit of the doubt on that issue:

2. I however, cannot find that she has prospects of success because –

a. On the Applicant’s own version the Applicant states that a group of employees were following her to the supervisor’s office. But she is not able to explain why they were following her. Common sense dictates that the Applicant, if she saw a group following her, would ask them why they are following her. She did not do that.

b. If it is true that the Applicant had to attend a vigil on the day in question, she would have raised it timeously at the production schedule meeting. She did not do that’.

[5] In his final paragraph, the Commissioner held it “probable that the Applicant was indeed participating in an unprocedural work stoppage”. He accordingly then found that the dismissal was probably a “fair sanction”.

[6] The Applicant brought this application for review during September 2012.

[7] It is common cause that the review application itself has been brought out of time and likewise the First Respondent’s

Opposing Affidavit was delivered late and both parties accordingly sought condonation.

[8] Mr Reddy, for the Applicant, and Mr Maeso, for the First Respondent, agreed that the matter should proceed on the main application and that condonation should be granted where necessary.

[9] Having regard to the explanations tendered by the Applicant and First Respondent, condonation is accordingly granted:

a) for the late filing of the review application; and

b) for the late filing of the First Respondent’s Opposing Affidavit.

In respect of both the condonation applications, there shall be no order as to costs.

[10] The application for the condonation of the late referral of the matter before the DRC was made on affidavit by the Applicant. The application was opposed by the First Respondent, the First Respondent’s Opposing Affidavit having been deposed to by one J. S. Makhanya, the Human Resources Officer employed at the First Respondent.

[11] In all the circumstances, the application for condonation was determined on affidavit without oral evidence. This is borne out by the transcript of the proceedings before the DRC.

[12] It is trite that the factors which the Commissioner ought to have considered include:

a) the degree of lateness;

b) the explanation therefore;

c) the prospects of success; and

d) the importance of the case.[1]

[13] The Commissioner appears to have refused condonation, having found that the Applicant lacked prospects of success on the grounds as quoted hereinabove. Significantly, the Commissioner finds that ‘common sense dictates that the Applicant, if she saw a group following her, would ask them why they are following her. She did not do that’.

[14] In her Founding Affidavit to the condonation application, the Applicant testifies:

a) that she had left her work station to request leave from her supervisor;

b) when she left her work station, she noticed a group of workers following behind her;

c) she did not speak to any of these workers;

d) she had approached the office of her supervisor for personal reasons to seek permission to attend a night vigil for the late cousin of her husband;

e) she was not aware of, nor did she participate in any illegal work stoppage;

f) she only became aware of being accused of having participated in an illegal work stoppage when she was charged with the offence at the end of February 2012.

[15] These are factual allegations put up on affidavit by the Applicant.

[16] Against this backdrop, the First Respondent’s deponent, in her Opposing Affidavit, is unable to factually gainsay the averments for the Applicant. Indeed, the Opposing Affidavit is couched on the probabilities. In paragraph 38 of that affidavit, the deponent argues ‘it is inconceivable that an employee who has no business with other employees could not ask them why they were following her into a private meeting….’

[17] The Commissioner, by reference to “common sense dictates” appears to agree with the argument.

[18] However, his ruling is based on speculation rather than any factual averments for the First Respondent. The deponent to the First Respondent’s affidavit does not place facts before the Commissioner. Seemingly, she was not even present when the events

unfolded.

[19] It is trite that the courts will come to the assistance of an Applicant for review where the decision of a Commissioner is

unsupported by any evidence and involves speculation by the Commissioner.[2]

[20] Mr Maeso, for the First Respondent, in opposing the application for review, submitted that the Applicant had failed to identify, nor plead any recognisable ground for the review of the Second Respondent’s ruling. It is trite that the Applicant must at

least plead her grounds for review.

[21] Whilst there may be something to be said for the submission, the Applicant has, at the very least, attacked the reasons given by the Commissioner for his finding that the Applicant lacked prospects of success as being both immaterial and inconclusive. The Applicant has also argued that the Commissioner ought to have directed the hearing of oral evidence before determining disputes of fact. These submissions, in the Founding Affidavit to the review application, seem to support the argument that the Commissioner’s ruling was unsupported by any evidence and, at the very least, involves some speculation by the Commissioner. With that said, these grounds of review are not clearly pleaded and understandably the review was opposed.

[22] Mr Maeso argued that if the Court is inclined to grant the application for review, that the matter be referred back to be heard

by an alternate Commissioner. I am in agreement with that submission.

[23] In the circumstances, the following Order is granted:

a) the ruling of the Commissioner is reviewed and set aside;

b) the matter is remitted to the Third Respondent for a hearing de novo before an alternate Commissioner;

c) there is no Order as to costs.

Pillay AJ

Acting Judge Labour Court of South Africa

APPEARANCES

For the Applicant: G. Reddy of Harkoo, Brijlal & Reddy (Durban)

For the First Respondent: M. G. Maeso of Shepstone & Wylie Attorneys (Durban)

[1] Melane v Santam Insurance Company Limited 1964 (4) SA 531 (A)

[2] Karan Beef (Pty) Ltd v Mbovane N.O and Others (2008) 29 ILJ 2959 (LC) The matter of Herholdt v Nedbank Limited & Others [2013] 11 BLLR 1074 (SCA)

[2] Karan Beef (Pty) Ltd v Mbovane N.O and Others (2008) 29 ILJ 2959 (LC)

The matter of Herholdt v Nedbank Limited & Others [2013] 11 BLLR 1074 (SCA)