Olivier v Bloemfontein Metal Merchants CC t.a Southern Cross Industries and Others (JR 809/2021) [2023] ZALCJHB 276 (10 October 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JR 809/2021

In the matter between:

HERMAN OLIVIER Applicant And BLOEMFONTEIN METAL MERCHANTS CC t/a SOUTHERN CROSS INDUSTRIES First Respondent THE SOUTHERN CROSS JOINT VENTURE Second Respondent SOUTHERN CROSS FOUNDRY (PTY) LTD Third Respondent LUCKY MOLOI Fourth Respondent COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION Fifth Respondent

Heard: 4 October 2023

Delivered: 10 October 2023

This judgment was handed down electronically by consent of the parties’ representatives by circulation to them via email. The date for hand-down is deemed to be 10 October 2023.

JUDGMENT

PRINSLOO J

Introduction

[1] The Applicant filed an application to review and set aside a condonation ruling dated 19 March 2021 and issued under case number FSBF1051-21. The Fourth Respondent (arbitrator) refused to grant condonation for the late referral of the Applicant’s unfair dismissal dispute.

[2] The First to Third Respondents (Respondent) opposed the application.

Material background facts

[3] The Applicant’s case is that he was offered employment by the First Respondent since 2012 as a foundry manager. On 15 July 2020, he received a notice of suspension and he had to return all the Respondent’s keys and equipment and vacate the premises. The Respondent’s case on the other hand was that the Applicant was not an employee but an independent contractor.

[4] Be that as it may, on 4 March 2021 the Applicant referred an unfair dismissal dispute to the Fifth Respondent and he applied for condonation for the late referral of his dispute. The arbitrator refused to grant condonation and the condonation ruling is the subject of this review application.

The condonation application

[5] In order to assess the arbitrator’s findings and the ruling he ultimately issued, it is necessary to consider the evidence placed before him.

[6] The Applicant submitted an application for condonation in respect of his unfair dismissal dispute and although he did not state the date of his dismissal for purposes of calculating the degree of lateness, he stated that he “was employed until 15 July 2020” when he received a notice of temporary suspension. The Applicant’s attorney also deposed to an affidavit in support of the application for condonation and he explained that after the Applicant’s suspension in July 2020, no disciplinary hearing was held and only after the attorneys addressed a letter to the Respondent on 29 September 2020, it became apparent from the Respondent’s

correspondence of 15 October 2020 that no further disciplinary action would be taken and the Applicant thus became aware of his dismissal on 15 October 2020. The delay was calculated to be 108 days late.

[7] The Applicant’s attorney explained that the Applicant was only in a position to provide all the relevant information pertaining to his referral to his legal team on 11 February 2021. The referral was prepared, circulated for comment and finalised by 2 March 2021. In respect of the prospects of success, the Applicant’s attorney stated that he has very good prospects of success, for reasons advanced in the referral.

The test for the grant of condonation

[8] The relevant legal principles to be applied in an application for condonation, are well established. The court or relevant tribunal has a discretion, which must be exercised judicially on a consideration of the facts of each case and in essence, it is a matter of fairness to both sides.[1]

[9] Condonation for delays in all labour law litigation is not simply there for the taking. The starting point is that an applicant in an application for condonation seeks an indulgence and bears the onus to show good cause.

[10] In Melane v Santam Insurance Co Ltd[2] (Melane) it was held that:

‘…. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success, and 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 if there are no prospects of success there would be no point in granting

condonation… What is needed is an objective conspectus of all the facts.’

[11] The approach that in the absence of a satisfactory explanation for a delay, the applicant’s prospects of success are ordinarily

irrelevant, has been conventionally applied[3] and was confirmed in National Education Health and Allied Workers Union on behalf of Mofokeng and others v Charlotte Theron Children’s Home[4] where the Labour Appeal Court (LAC) held that without a reasonable and acceptable explanation for a delay the prospects of success are immaterial.

[12] An applicant in an application for condonation bears the onus to satisfy the court or tribunal that condonation should be granted and it is incumbent upon such applicant to provide a full explanation for every period of the delay. The explanation for the delay must be both comprehensive and persuasive and should cover every period of the delay.

[13] In Independent Municipal & Allied Trade Union on behalf of Zungu v SA Local Government Bargaining Council and others,[5] the principle was confirmed that it is not sufficient simply to list significant events that occurred during the period in question as that does not assist the court (or a tribunal) properly in assessing the reasonableness of the explanation.

The condonation ruling

[14] The issue to be decided by the arbitrator was whether condonation should be granted for the late referral of the Applicant’s unfair dismissal dispute. The Respondent’s opposing papers were submitted late and it is evident from the ruling that the arbitrator considered the application as an unopposed one.

[15] In the referral form, the Applicant indicated that the date of his dismissal was 15 July 2020. The arbitrator recorded the Applicant’s submissions made in support of his application and recorded that he became aware of his dismissal on 15 October 2020. In his analysis of the evidence and argument and the factors to be considered in an application for condonation, the arbitrator recorded that the referral was 108 days late, which he found to be excessive.

[16] The arbitrator recorded that, without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial and without prospects of success, no matter how good the explanation, an application for condonation should be refused.

[17] In respect of the explanation for the delay, the arbitrator recorded that the Applicant submitted that he could not file the dispute timeously as there were documents to be obtained prior to the filing of the dispute and that he was only in a position to provide the relevant information to his legal team on 11 February 2021. The arbitrator found that there was no explanation as to what reasonable steps were taken upon being aware of the dismissal on 15 October 2020 or as to what exactly prevented the Applicant from referring his dispute to the CCMA without documentation, for which a subpoena could have been issued. The arbitrator found that the Applicant had failed to provide reasonable and acceptable reasons for the late referral of his dispute.

[18] On the issue of prospects of success, the arbitrator considered the fact that the employment contract attached to the application, was blank and unsigned and that there was correspondence from the Applicant’s attorneys to the Respondent in which a demand was made for the payment of the Applicant’s outstanding invoices and shares, which are statements posing a direct jurisdictional challenge to the CCMA. In addition, there was a letter from LabourNet, dated 15 October 2020, wherein it was stated that the Applicant was an independent contractor and not an employee, which corroborated the letter of demand, dated 29 September 2020, which demanded the payment of invoices and stated that the Applicant’s services were unlawfully suspended. The arbitrator accepted that the Respondent could not dismiss the Applicant, but only suspended his contract as an independent contractor. Based on the aforesaid reasons, the arbitrator refused to grant condonation.

The test on review

[19] I have to deal with the merits of the review application within the context of the test this Court must apply in deciding whether the arbitrator's decision is reviewable. The test has been set out in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[6] as whether the decision reached by the commissioner is one that a reasonable decision maker could not reach. The Constitutional Court very clearly held that the arbitrator's conclusion must fall within a range of decisions that a reasonable

decision maker could make.

[20] The review test is a stringent and conservative test of reasonableness. The Applicant must show that the arbitrator arrived at an unreasonable result.

[21] In Bestel v Astral Operations Ltd and others,[7] the LAC considered the limited scope possessed by this Court to review an arbitration award and accepted that an arbitrator’s

finding will be unreasonable if the finding is unsupported by any evidence, if it is based on speculation by the arbitrator, if it is disconnected from the evidence, if it is supported by evidence that is insufficiently reasonable to justify the decision or if it was made in ignorance of evidence that was not contradicted.

[22] The LAC in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA[8] affirmed the test to be applied in review proceedings and held that:

‘In short: A review court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts presented at the hearing and came to a conclusion which was reasonable...’

[23] The review Court must consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision maker could make based on the facts placed before him/her.

[24] In Parliament of the Republic of South Africa v CCMA and others,[9] it was held that:

‘[13] This Court accepts that when considering applications for condonation, Commissioners enjoy a wide discretion and the Courts

should be cautious when interfering with decision arrived at by Commissioners in the light of that wide discretion.

[14] The applicable test before the Court can interfere with a Commissioner’s discretionary decision is whether or not it can be said that the discretion was exercised “capriciously, or upon a wrong principle, or in a biased manner, or for insubstantial reasons. Thus, the test is whether the Commissioner committed a misdirection, an irregularity, or failed to exercise his or her discretion, or exercised it improperly or unfairly.’

[25] In Cowley v Anglo Platinum and others,[10] it was held that:

‘When a commissioner is endowed with a discretion this Court will be very slow to interfere with the exercise of that discretion. The commissioner's exercise of discretion will be upset on review if the applicant shows, inter alia, that the commissioner committed a misdirection or irregularity; or that he/she acted capriciously, or upon a wrong principle, or in bad faith, or unfairly, or that in exercising the discretion the commissioner reached a decision that a reasonable decision-maker could not reach. If it is clear that the commissioner exercised such discretion judiciously and fairly after taking into consideration all the relevant facts this Court will not interfere with the exercise of such discretion.’

[26] The ultimate question is whether holistically viewed, the decision taken by the arbitrator was reasonable based on the evidence placed before him. I have to consider this question taking into account the evidence that was placed before the arbitrator, the ruling he had issued and the grounds for review raised by the Applicant.

Grounds for review and analysis

[27] It is evident from her ruling that the arbitrator was well aware of the fact that the Applicant had to show good cause and that he was guided by the factors to be addressed in an application for condonation, more specifically the degree of lateness, the explanation for the lateness and the prospects of success.

[28] In considering whether or not to grant condonation, the arbitrator had to consider the aforesaid factors, thus the legal requirements or the law, the facts placed before him and exercise his discretion on an objective conspectus of the law, applied to the facts.

[29] In his founding affidavit, the Applicant conceded that the degree of lateness was excessive. Notwithstanding this concession, in the Applicant’s heads of argument, it was submitted that the delay is not excessive at all.

[30] The heads of argument filed on behalf of the Applicant had been of no assistance to this Court, sitting as a review Court. The submissions made stated that “the Applicant provided the Honourable Court with a reasonable and proper explanation for the delay” and submissions are made on all the aspects to be considered in an application for condonation. Counsel for the Applicant went as far as to make submissions and factual statements not contained in the application for condonation that served before the arbitrator and made submissions on issues not contained in the founding affidavit before this Court, or worse, on issues not to be decided by the review Court at all.

[31] In the conclusion of the heads of argument, counsel for the Applicant (who drafted the heads of argument but did not argue the matter) submitted that “the Applicant has provided this Honourable Court with a substantive case for condonation – indicating each of the required elements and, furthermore, indicating that good cause exists for the Applicant to be granted condonation”.

[32] Let this be clear: this Court, sitting as a review Court, has to consider the outcome of the condonation ruling and the grounds for review raised by the Applicant and decide whether, based on the evidence placed before the arbitrator, the decision to refuse condonation was reasonable. This Court is not to decide the condonation application.

[33] In argument, Mr Nel for the Applicant submitted that there are two main grounds for review namely that there was no formal hearing of the condonation application and that the arbitrator failed to apply the relevant legal principles in deciding the condonation application. I will deal with them in turn.

No formal hearing

[34] The Applicant’s case is that the decision not to set the matter down for a formal hearing amounts to a gross irregularity and renders the decision reviewable.

[35] In my view, there is no merit in this ground for review.

[36] As the Applicant sought an indulgence and bore the onus to satisfy the CCMA that condonation should be granted, it was incumbent to provide the CCMA and the arbitrator with a full explanation for every period of the delay. It is not sufficient simply to list significant events that occurred during the period in question as that does not assist in properly assessing the reasonableness of the explanation.[11] In short: the explanation for the delay must have been comprehensive, convincing and compelling and should have covered every period of the delay.

[37] On his own version, the degree of the delay was excessive and a perusal of the application shows that the explanation tendered was poor, lacking in detail and that all the periods of the delay were not explained.

[38] Mr Nel, during argument, conceded that the explanation tendered did not cover every period of the delay and that material parts of the excessive delay remained completely unexplained.

[39] Rules 31(9) and (10) of the Rules for the Conduct of Proceedings before the CCMA provide that the CCMA may determine an application by considering the documents filed, or if it is considered appropriate, allocate a hearing date, provided that the parties are informed accordingly. In casu, the issue to be decided was the Applicant’s condonation application, which was decided on an unopposed basis. It was decided on paper. The arbitrator specifically recorded that the application was dealt with on paper due to the COVID-19 restrictions.

[40] There is nothing untoward in deciding the application for condonation on paper as the Applicant had submitted a written application, under oath, setting out his version and there was no opposition to his application and the arbitrator was entitled to consider what was placed before him. This does not per se amount to a gross irregularity and does not automatically render the decision reviewable. More is required.

[41] The Applicant failed to make out a case that he was deprived of a fair hearing and he was unable to show in his founding affidavit that he was prejudiced because the application was decided on paper. In fact, there is not a single averment made to that effect. The Applicant can only blame himself for not properly explaining the delay and for not putting forward all the necessary facts. The Applicant’s application for condonation was his version under oath. He would not have been at liberty to introduce more facts and tender an explanation that was not part of his version under oath in the process of a hearing and the fact that the application was decided on paper simply means that it was decided based on the version he had presented under oath. The fact that the application was decided on paper did not have any material impact on the outcome of the condonation application as the Applicant failed to provide a proper explanation under oath.

[42] The arbitrator’s findings were reasonable, considering that the Applicant provided no explanation as to what exactly prevented him from referring his dispute to the CCMA without documentation. No detail is given of what documents were required, why they were relevant to his referral and why the Applicant was unable to refer his matter without the documents.

Failure to apply the legal principles

[43] The Applicant’s case is that the arbitrator failed to apply the legal principles properly in determining the condonation application. The Applicant stated that the arbitrator had to determine whether he had provided a reasonable explanation for the delay and whether he had good prospects of success and his case is that he provided a reasonable explanation and had excellent prospects of success.

[44] There is no merit in this ground for review.

[45] Mr Nel during argument conceded that the explanation tendered did not cover every period of the delay and that material parts of the excessive delay remained completely unexplained. The explanation tendered for an excessive delay was not good enough, a fact conceded before this Court.

[46] In the applicable authorities (some referred to supra), the courts have endorsed the position that the failure to provide a reasonable and acceptable explanation for the delay renders prospects of success immaterial.

[47] This was also confirmed in Grootboom v National Prosecuting Authority and another,[12] where the Constitutional Court has held that:

‘The interests of justice must be determined with reference to all relevant factors. However, some of the factors may justifiably be left out of consideration in certain circumstances. For example, where the delay is unacceptably excessive and there is no explanation

for the delay, there may be no need to consider the prospects of success. If the period of delay is short and there is an unsatisfactory explanation but there are reasonable prospects of success, condonation should be granted. However, despite the presence of reasonable prospects of success, condonation may be refused where the delay is excessive, the explanation is non-existent and granting condonation would prejudice the other party.’

[48] In his application for condonation, the Applicant provided facts that showed that he submitted invoices for work done and even his attorney demanded the payment of outstanding invoices, his suspension letter was for the suspension of services of an independent contractor, a letter he had signed in his capacity as ‘independent contractor’ and he was unable to state when or how he was dismissed. None of these indicated prospects of success in an unfair dismissal dispute.

[49] Even though the Applicant’s prospects of success were immaterial given the excessive delay and the poor explanation for that, the arbitrator’s findings that there are no prospects of success are not unreasonable and I cannot find that the arbitrator failed to apply the applicable legal principles.

Conclusion

[50] I have to consider the grounds for review within the context of the test this Court must apply in deciding whether the arbitrator's decision is reviewable. The arbitrator exercised his discretion and she refused condonation. No case has been made out that the exercise of his discretion was not done judicially or fairly, after taking into consideration all the relevant facts.

[51] The ultimate question is whether holistically viewed, the decision taken by the arbitrator was reasonable based on the evidence placed before him. I have considered this question and I conclude that the arbitrator’s findings fall within a band of reasonableness based on the evidence that was placed before him and are not be interfered with on review.

Costs

[52] In so far as costs are concerned, this Court has a broad discretion in terms of section 162 of the Labour Relations Act[13] to make orders for costs according to the requirements of the law and fairness.

[53] The requirement of law has been interpreted to mean that the costs would follow the result. In considering fairness, the conduct of the parties should be taken into account and mala fides, unreasonableness and frivolousness are factors justifying the imposition of a costs order.

[54] In Zungu v Premier of the Province of KwaZulu-Natal and Others,[14] the Constitutional Court confirmed that the rule that costs follow the result does not apply in labour matters. The Court should seek to strike a fair balance between unduly discouraging parties from approaching the Labour Court to have their disputes dealt with and, on the other hand, allowing those parties to bring to this Court (or oppose) cases that should not have been brought to Court (or opposed) in the first place.

[55] This is a case where the Court has to strike a balance, considering the requirements of law and fairness. The generally accepted purpose of awarding costs is to indemnify the successful litigant for the expense he or she has been put through by having been unjustly compelled to initiate or defend litigation. In Public Servants Association of SA on behalf of Khan v Tsabadi NO and Others,[15] it was emphasized that:

‘…unless there are sound reasons which dictate a different approach, it is fair that the successful party should be awarded her costs. The successful party has been compelled to engage in litigation and compelled to incur legal costs in doing so. An appropriate award of costs is one method of ensuring that much earnest thought and consideration goes into decisions to litigate in this court, whether as applicant, in launching proceedings or as respondent opposing proceedings.’

[56] Mr Orton on behalf of the Respondent submitted that the Respondent had been “dragged on a legal adventure” and had to incur legal costs to oppose a meritless matter. There is no employment relationship existing between the parties and the Applicant should not have brought this application in the first place.

[57] Mr Nel submitted that there should be no order as to costs.

[58] In my view, this is a case where it is appropriate to make a cost order. A cost order is a method of ensuring that decisions to litigate in this Court are taken with due consideration of the law and the prospects of success, more so where the application is one for review where the applicable principles are well known and established.

[59] In casu, the application was wholly misguided and the grounds for review were vague and lacked substance and merit. The Respondent had to defend a meritless application and fairness dictates that it cannot be expected to endure costs defending litigation that ought not to have been brought in the first place.

[60] The Applicant did not come to Court as an unrepresented layperson, he was legally represented and therefore in a position to consider the consequences of instituting meritless litigation and he had to put in some earnest thought and consideration into the merits of this case before filing this review application. A review application is not the automatic next step when the outcome of an arbitration process is not to the satisfaction of one of the parties – there must be proper grounds to approach this Court on review.

[61] I am alive to the fact that the Applicant is an individual. This Court’s reluctance to make cost orders against individual litigants is not an unsurmountable rule. I cannot ignore the fact that the Applicant ultimately initiated this application and persisted with it in circumstances when he should not have done so.

[62] In the present circumstances, the interests of justice require that the Applicant pays at least a portion of the Respondent’s costs. In my view, a sum equivalent to 25% of the Respondent’s costs will best serve those interests.

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

Order

1. The application for review is dismissed;

2. The Applicant is to pay the First to Third Respondent’s cost, limited to 25% of the taxed costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Advocate A J Nel

Instructed by:

Moodie & Robertson Attorneys

For the First to Third Respondents:

Mr R J C Orton from Snyman Attorneys

[1] D Harms, ‘Civil Procedure in the Superior Courts’ (LexisNexis South Africa) at B27.6.

[2] 1962 (4) SA 531 (A) at 532 C - F.

[3] See: NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC).

[4] (2004) 25 ILJ 2195 (LAC) at para 23.

[5] [2009] ZALC 137; (2010) 31 ILJ 1413 (LC) at para 7.

[6] [2007] ZACC 22; (2007) 28 ILJ 2405 (CC) at para 110.

[7] [2010] ZALAC 19; [2011] 2 BLLR 129 (LAC) at para 18.

[8] [2013] ZALAC 28; (2014) 35 ILJ 943 (LAC) at para 16.

[9] [2018] ZALCCT 12 (24 April 2018) at paras 13 – 14.

[10] [2016] JOL 35884 (LC) at para 21.

[11] See: Independent Municipal & Allied Trade Union on behalf of Zungu v SA Local Government Bargaining Council and others [2009] ZALC 137; (2010) 31 ILJ 1413 (LC).

[12] [2013] ZACC 37; (2014) 35 ILJ 121 (CC) at para 51.

[13] Act 66 of 1995, as amended.

[14] [2018] ZACC 1; (2018) 39 ILJ 523 (CC) at para 24.

[15] [2012] ZALCJHB 17; (2012) 33 ILJ 2117 (LC) at para 176.