NUPSAW obo Madzivhandla v Schoeman NO and Others (JR10/14) [2014] ZALCJHB 469 (26 November 2014)

IN THE LABOUR COURT OF SOUTH AFRICA

HELD IN JOHANNESBURG

JUDGMENT

Not reportable

Case no: JR 10/14

In the matter between:

NUPSAW OBO R MADZIVHANDLA

Applicant

and

JCB SCHOEMAN N.O

First Respondent

GPSSBC

Second Respondent

DEPT OF AGRICULTURE, FORESTRY

& FISHERIES

Third Respondent

Heard: 25 November 2014

Delivered 26 November 2014

VAN NIEKERK J

[1] This is an unopposed application to review and set aside a ruling made by the first respondent on 21 October 2013 when he dismissed an application for the condonation of the late referral of a unfair labour practice dispute to the bargaining council.

[2] The applicant contends that the first respondent committed a gross irregularity in that he failed to consider all of the points raised by the applicant in the proceedings under review, that he failed to apply his mind to the issue before him and that his findings were ‘misplaced’ and incorrect.

[3] The test to be applied is well-established. A review application is not an appeal. The correctness of the ruling is not in question. The review court is required to determine whether the decision to which the arbitrator came falls within the bands of decisions to which a reasonable decision-maker could come on the available material. Any process-related conduct on the part of an arbitrator (for example, a failure to have regard to particular evidence, or the manner of the assessment of that evidence) is of no consequence unless it had the result of an outcome that is unreasonable in the terms described.

[4] In the present instance, the application that served before the first respondent was one in which the referral was made 5475 days late. That figure was not placed in dispute. The reasons for lateness were described as follows: ‘The Department was still holding the matter and I was of the opinion that they will rectify the error happened (sic)’. The prospects of success were described in the following terms:

‘Because the department failed to rectify the error they are aware of and till to date they didn’t rectify it. Attached is a letter from the area manager addressing the problem – the employees (illegible) but there was nothing done’

[5] In his ruling, the arbitrator recorded the proper test to be applied. This test, established by Melane v Santam Insurance Co Ltd, required him to have regard to all of the relevant facts including the degree of lateness, the explanation therefore, the prospects of success and the importance of the case. None of these facts are individually decisive; what is required is that the arbitrator’s

exercise of discretion be based on a conspectus of all of the relevant facts.

[6] The arbitrator noted further that the principle that the law aids those who are vigilant and not those who sleep on their rights is well-established. He recorded that the applicant’s explanation for the delay was ‘not at all convincing’ and that the lateness of the referral, some 15 years, was excessive. On this basis alone, the arbitrator held that the application for condonation should fail. Notwithstanding that conclusion, he went on to consider the prospects of success as well as the issue of the relative prejudice to the parties should the application be granted. None of these factors served to modify the view that he had initially adopted. On this basis, as I have indicated above, the application for condonation was dismissed.

[7] I fail to appreciate any basis on which it can be contended that the arbitrator’s decision is so unreasonable that no reasonable decision-maker could come to it on the available material. First, it is clear to me from the terms of the award that the arbitrator had regard to all of the submissions made; the fact that each of the factual assertions or submissions made in an affidavit in support of an application for condonation is not recorded and rejected is not in itself a basis for review. The arbitrator had clearly considered the papers before him and gave sufficiently detailed reasons for the conclusion to which he had come. The applicant’s real complaint appears to be that the arbitrator disagreed with the submissions that were made on his behalf. Given the applicable test, that is not a basis for review. Secondly, regardless of the arbitrator’s conduct and given the content of the application that served before him, the dismissal of the application for condonation is a manifestly reasonable decision. The period of delay is one that is rarely if ever encountered in this court. The explanation for the delay, in effect that for some 15 years the applicant waited for a response to the grievance that he had lodged is, to say the least, without substance. Any different conclusion would have had the effect of undermining one of the fundamental purposes underlying the LRA - expeditious and efficient dispute resolution. The time periods prescribed for the referral of unfair labour practice disputes to the appropriate dispute resolution agency are consistent with this purpose. To grant applications for condonation in circumstances such as the present would, as I have indicated, serve to frustrate the purposes of expeditious dispute resolution.

[8] This matter was unopposed. Had there been any opposition to the application, I would not have hesitated to grant an order for costs on a punitive scale. The application borders on an abuse of the process of this court.

For these reasons, I make the following order:

1. The application is dismissed.

ANDRE VAN NIEKERK

JUDGE OF THE LABOUR COURT

REPRESENTATION

For the applicant: Union official