Payne v Department of Transport Public Works (Western Cape Provincial Government) and Others (C22/2024) [2024] ZALCCT 32 (24 July 2024)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

Reportable

Case no: C22/2024

In the matter between:

FARROL PAYNE

Applicant

and

DEPARTMENT OF TRANSPORT AND PUBLIC WORKS

(WESTERN CAPE PROVINCIAL GOVERNMENT)

First Respondent

NEHAWU obo C[...] O[...]

Second Respondent

THE COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION

Third Respondent

WILBUR VAN NIEKERK N.O

Fourth Respondent

Heard: 6 June 2024

Delivered: 24 July 2024

Summary: Review of two arbitration rulings issued in respect of incomplete CCMA proceedings in terms of the Employment Equity Act. Review must be brought in terms of section 158(1)(g) of the LRA, and it is just and equitable in terms of section 158(1B) of the LRA for the court to intervene in incomplete CCMA proceedings where a jurisdictional ruling is issued. Review application dismissed.

JUDGMENT

GANDIDZE, AJ

Introduction

[1] Mr Farrol Payne, the applicant, (Payne) seeks orders in terms of section 50(1)(h) of the Employment Equity Act[1] (EEA), reviewing and setting aside two rulings issued by the fourth respondent commissioner, under the auspices of the Commission for Conciliation, Mediation and Arbitration (CCMA), in case number WECT14107-21. The rulings are dated 2 October 2023 and 23 November

2023, respectively. In the event that the rulings are set aside, Payne seeks an order that the CCMA lacked jurisdiction to hear and determine the dispute, alternatively, an order remitting the matter to the CCMA for a de novo hearing of his in limine application that the CCMA lacked jurisdiction to deal with the dispute referred to it.

[2] Payne is an employee of the first respondent employer, the Department of Transport and Public Works Western Cape Provincial Government (Department)[2] which in these proceedings, filed an explanatory affidavit joining cause with Payne in his review application.

[3] The second respondent, NEHAWU on behalf of its member C[...] O[...] (O[...]) is the only respondent that opposed the review application.

Simultaneously O[...] raised two preliminary points that the review ought to have been brought in terms of section 158(1)(g) of the Labour Relations Act[3] (LRA), and that in any event, Payne failed to make out a case that it was just and equitable for the Court to intervene in incomplete CCMA proceedings as contemplated in section 158(1B) of the LRA. O[...] is also an employee of the Department.

[4] For context, l proceed to set out the events that gave rise to the dispute between the parties.

Background facts

[5] On 22 September 2020, O[...] reported to the Department acts of sexual harassment allegedly perpetrated by Payne against her in June 2019 and on 11 September 2020. On 12 October 2020, O[...] added a complaint in respect of another alleged act of sexual harassment which occurred on 17 July 2018. Subsequently, she also informed the Department that on 15 October 2020, she had opened a criminal case of sexual assault against Payne.

[6] Following an investigation, on 25 June 2021, the Department informed O[...] that it would not charge Payne.

[7] This decision prompted O[...] to refer a dispute to the CCMA against the Department on 13 July 2021. The dispute was said to be an unfair discrimination dispute. It was alleged that the Department failed to protect a female employee who was sexually harassed by a supervisor, Payne, and that the Department was biased in dealing with Payne. Compensation was sought, as well as for disciplinary action to be taken against Payne.

[8] Conciliation was unsuccessful and a referral for arbitration was made. The referral form records that the Department failed to implement the Code of Good Practice when handling sexual harassment matters in the workplace and by being biased in favour of Payne who was not subjected to a hearing. The relief sought in the conciliation referral form was repeated, and additionally, O[...] sought a transfer to another department.

[9] Before the arbitration proceedings could commence, the Department unsuccessfully sought to join Payne to the dispute and to obtain an order directing O[...] to be subjected to a mental health assessment. The Department filed an urgent application in this Court seeking to review and set aside the rulings concerned. The order was taken by agreement between the parties, with the consequence that there is no judgment analysing the issues raised in the review.

[10] With the matter back at the CCMA, Payne raised a point in limine that O[...]’s referral was made outside the 6-month period prescribed in section 10 of the EEA and therefore the CCMA lacked

jurisdiction to hear and determine the dispute. Even though this was unnecessary, Payne also sought condonation for raising the point in limine late and that order was granted.

[11] Both the Department and O[...] opposed Payne’s in limine objection.

[12] The Department denied that O[...] was required to seek condonation and that the CCMA’s jurisdiction to arbitrate the matter was founded on the order of the court joining Payne to the proceedings and ordering that the arbitration would proceed on a date to be determined by the arbitrator.

[13] For her part, O[...] denied that the referral made in terms of section 60 of the EEA was late as there were no prescribed time period for the filing of such claims, but in the opposing affidavit, she also made a conditional application for condonation in the event that it was found that the referral was one in terms of section 10 of the EEA which ought to have been brought within six months of the acts complained of.

[14] By the time the parties filed their respective heads of argument, the Department did a volte-face and now agreed with Payne that O[...]’s referral was made outside the prescribed time periods, but advanced slightly different grounds for that submission. The Department justified the change of stance by stating that O[...]’s case had evolved.

[15] At the hearing of the matter, Mr De Kock for O[...] persisted with the argument that the claim was one in terms of section 60 of the EEA, and therefore no referral time limits applied to such a claim. Towards the end of oral argument and on inquiry by Mr Williams for Payne, Mr De Kock confirmed that the conditional application for condonation was off the table.

[16] In a ruling dated 2 October 2023 (first ruling), the commissioner found that (a) the issue of jurisdiction and condonation will be determined in a single ruling; and (b) that O[...] must file a condonation application by 9 October 2023.

[17] O[...] filed a condonation application as ordered, and Payne and the Department opposed it.

[18] The application was determined on the papers. In a ruling dated 23 November 2023, the commissioner found, inter alia that O[...]’s referral to the CCMA was late as it ought to have been made within six months as envisaged in section 10 of the EEA and granted condonation for the late referral (second ruling).

[19] The review application which served before me on a preferential hearing date is aimed at setting aside both the first and second rulings. I was advised that, dependent on the outcome thereof, the arbitration proceedings were set to commence in September 2024.

Issues for determination

[20] I am required to determine these issues:

20.1 Whether the review brought in terms of section 50(1)(h) of the EEA is properly before Court, or whether it ought to have been brought in terms of section 158(1)(g) of the LRA.

20.2 If the review is properly before Court, whether it is just and equitable for this Court to review rulings issued in incomplete arbitration proceedings given section 158(1B) of the LRA.

20.3 If the first two questions are answered in the affirmative, whether to review and set aside the two rulings.

20.4 Costs.

[21] I deal with the issues for determination in that sequence.

Is the review application properly before Court?

[22] Payne submitted that his review brought in terms of section 50(1)(h) of the EEA, was properly before Court because the provision states that the Labour Court may review any administrative action in terms of the EEA and that arbitration rulings constitute administrative functions. According to Payne, the rule of interpretation, that the general gives way to the specific, dictates that the review had to be brought in terms of section 50(1)(h) which is particular. The submission was also that in the event of a conflict, the EEA takes precedence given section 63 of the EEA.

[23] The Department submitted that rulings are ordinarily reviewable in terms of section 158(1)(g) of the LRA, that it is unclear whether section 10(7) of the EEA is a source of the powers of the Labour Court to review rulings and awards but that textually, section 50(1)(h) of the EEA appears to deal explicitly with the power of the Labour Court to review the performance of any function provided for in the EEA. Applying the principle that general legislation gives way to special legislation, then section 50(1)(h) of the EEA would be difficult to ignore, so the Department argued. The Department’s further submission was that since the same test applies in reviews of this kind, even if the wrong statute had been relied upon this was not a reason to dismiss the review application.[4]

[24] O[...] submitted that a review brought in terms of section 50(1)(h) of the EEA is defective as that provision deals with the review of administrative action in terms of the EEA and does not provide for the review of rulings issued by the CCMA. The submission is further that the review ought to have been brought in terms of section 158(1)(g) of the LRA, by virtue of the provisions of section 10(7) of the EEA.

[25] Section 158(1)(g) provides that:

‘Powers of the Labour Court

(1) The Labour Court may –

(g) subject to section 145, review the performance or purported performance of any function provided for in this Act on any grounds that are permissible in law.’

[26] It is not in dispute that this is the provision utilised to review CCMA and bargaining council rulings issued in LRA-related disputes.

[27] As far as unfair discrimination disputes in terms of the EEA are concerned, Section 10(7) of the EEA provides that:

‘10. Disputes concerning this Chapter

(7) The relevant provisions of Parts C and D of Chapter VII of the Labour Relations Act, with the changes required by context, apply in respect of a dispute in terms of this Chapter.’

[28] Section 158(1)(g) of the LRA is in Part D of Chapter VII of the LRA.

[29] l must note my observation that in its pre-amendment form, section 50(1)(h) of the EEA was exactly the same as the current section 158(1)(g) of the LRA, but without the phrase “subject to section 145”. It is unclear whether anything turns on this.

[30] In argument, Mr Kahanovitz helpfully pointed out that in terms of section 10(8) of the EEA, awards issued in EEA disputes are appealable to this Court and that other than what is set out in section 10(7), section 10 does not expressly deal with challenging

rulings issued in EEA disputes.

[31] With that as a starting point, because section 50(1)(h) of the EEA is prefaced with “except where this Act provides otherwise”, it is my view that one needs to look to the rest of the EEA first to establish if there is any other provision that deals with reviews and if there is not, then section 50(1)(h) applies. Where such a provision exists, then section 50(1)(h) is subservient to that provision.

[32] So as it relates to arbitration awards issued in unfair discrimination disputes, Section 10(8) of the EEA provides that they are appealable to this Court. Therefore, even though arbitration awards issued in unfair discrimination disputes constitute

administration action, they are not reviewable in terms of section 50(1)(h) of the EEA.

[33] But what of rulings? This is another issue that is provided for elsewhere in the EEA. Section 10(7) of the EEA provides that the relevant provisions of Parts C and D of Chapter VII of the LRA, with the changes required by context, apply in respect of a dispute in terms of this Chapter. Therefore, because section 50(1)(h) of the EEA provides that unless the EEA provides otherwise, it is to section 10(7) of the EEA that one must turn when looking to review an arbitration ruling relating to an unfair discrimination dispute. Section 158(1)(g) found in Part D of Chapter VII of the LRA is the provision utilised to review arbitration rulings. Therefore, CCMA and bargaining council rulings in unfair discrimination disputes must be reviewed in terms of section 158(1)(g) of the LRA, given the provisions of section 10(7) of the EEA, read together with section 50(1)(h) of the EEA. There is no conflict between the LRA and the EEA on how rulings in unfair discrimination disputes are to be challenged.

[34] However, in saying the above l am mindful that there may well be other administrative action performed in terms of the EEA which is not covered by Chapter II of the EEA, and it is such administrative action that is reviewable in terms of section 50(1)(h) of the EEA.

[35] Even if l were to apply the principle that the general must give way to the particular and given that the dispute was found to be one in terms of section 10 of the EEA, section 10(7) must apply to challenge rulings issued in such disputes. It would not make sense to regard the dispute as one in terms of section 10 of the EEA but then look elsewhere in the EEA for how to challenge that ruling, in circumstances where section 10 tells us how such disputes are to be challenged.

[36] Even if l am wrong that rulings in unfair discrimination matters ought to be challenged in terms of section 158(1)(g) of the LRA, l would not dismiss a review application that was competent merely because Payne relied on an incorrect statute. It is not in dispute that this Court has the power to review rulings issued in section 10 EEA disputes, the only debate being in terms of which statute. To the extent that Sebibeng Diamond Mine (JV) t/a Frontier Mining Project v NUMSA obo Phekoantoa and others[5] (Sebibeng Diamond Mine) can be interpreted to mean that reviews brought in terms of an incorrect provision must be dismissed for that reason, l disagree. In my view that will be an overly technical approach to take in labour matters[6] given that a considerable number of litigants in this Court are unrepresented. I have also considered that there is also no prejudice to O[...] occasioned by the fact that the review was brought in terms of section 50(1)(h) of the LRA as opposed to section 158(1)(g) of the LRA as the test on review remains the same, as l will discuss when l deal with the merits of the review application.

[37] For completeness l deal with O[...] taking issue with Payne filing a Rule 7A(8)[7] notice which, according to her, is required only in reviews of arbitration awards. My interpretation of Rule 7A is that it applies

to the review of rulings and awards brought in this Court, whether in terms of section 145 or section 158(1)(g) of the LRA, as well as in terms of any other applicable law. The provision is not limited to awards and O[...] did not develop the submission to explain why section 7A applies only to awards and not rulings. My experience of this Court is that all reviews are processed in terms of section 7A of the Rules of this Court, whether it is a ruling or an award. Therefore, Payne could file a supplementary affidavit supplementing his grounds for review and those grounds as set out in the supplementary affidavit were taken into account in determining the review application.

[38] In conclusion, the review ought to have been brought in terms of section 158(1)(g) of the LRA but even though it was not, it is properly before Court and will be considered.

Review of rulings in incomplete proceedings

[39] O[...]’s submission was that in the event that the Court decides to entertain the review application as one in terms of the LRA without this being pleaded, the review application is still doomed to fail given section 158(1B) of the LRA which provides that:

‘The Labour Court may not review any decision or ruling made during conciliation or arbitration proceedings conducted under the auspices

of the Commission or any bargaining council in terms of the provisions of this Act before the issue in dispute has been finally

determined by the Commission or the bargaining council, as the case may be, except if the Labour Court is of the opinion that it is just and equitable to review the decision or ruling made before the issue in dispute has been finally determined.’

[40] It is O[...]’s submission that parties cannot circumvent section 158(1B) by filing review applications in terms of the EEA.

[41] It is also O[...]’s case that because section 158(1B) applies, Payne failed to make a case that it would be just and equitable to review the rulings issued in incomplete proceedings. In this regard several decisions were cited, viz, Technology Corporate Management (Pty) Ltd v MJ Moue & Others[8]; Ngobeni v PRASA CRES and Others[9]; Workforce Group (Pty) Ltd v National Textile Bargaining Council and another[10]; EOH Abantu (Pty) Ltd v CCMA[11]; Southern Sun Hotels Interests (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[12]; Trustees for the time being of the National Bioinformatics Network Trust v Jacobson and Others[13]; Commercial Workers Union of SA v Tao Ying Metal Industries and Others[14]; Jiba v Minister of Justice and Constitutional Development[15];Armaments Corporation of South Africa (SOC) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[16] (Armaments); and Sebibeng Diamond Mine[17].

[42] Finally, it was submitted for O[...] that an order reviewing and setting aside the two rulings may result in a further review application being lodged to challenge the finding that the referral to the CCMA was a section 10 EEA dispute. Therefore, so the argument went, the two rulings must be allowed to stand and for the arbitration proceedings to be finalised.

[43] In response, Payne insists that because the review is in terms of section 50(1)(h) of the EEA, section 158(1B) of the LRA finds no application. The submission is further that to the extent that section 158(1B) applies, it is just and equitable for the Court to review the rulings as an order upholding the review will be dispositive of the dispute between the parties. The submission was also that Payne should not be put through a laborious, costly and fruitless exercise of participating in arbitration proceedings when the CCMA does not have jurisdiction to hear the matter.

[44] The Department joined cause with Payne’s submissions that the Court ought to intervene, otherwise any arbitration proceedings will be null and void, an inconvenience to the parties and witnesses and costly. The Department, strategically but unsurprisingly, also submitted that upholding the review would spare O[...] having to go through the ordeal of testifying and being subjected to rigorous cross-examination given her fragile psychological state which has resulted in her being on paid sick leave for more than two years.

[45] While section 158(1B) is meant to discourage interfering with arbitration proceedings in progress, where it would be just and equitable for this Court to intervene in such proceedings, this is permitted. The provision says so. In my view, in this case it is just and equitable for this Court to intervene because the matter relates to a ruling on jurisdiction and because the CCMA decides such matters for convenience. Whether or not the CCMA has jurisdiction is a matter for this Court to decide.[18] Where the CCMA clothes itself with jurisdiction when it has none, the proceedings held pursuant to that ruling will be null and void. This applies where condonation ought to have been refused but was granted. The Court must therefore decide the jurisdiction issue and if it is found that condonation ought to have been refused, the Court will prevent the convening of arbitration proceedings which will in due course found to be null and void.

[46] As far as l could establish, the majority of the judgments relied upon by O[...] where the court refused to intervene in incomplete proceedings did not deal with rulings granting condonation and therefore those decisions find no application to this matter.

[47] The Armaments decision was concerned with an urgent application to interdict the continuation of an arbitration pending the hearing of a review in a matter where jurisdiction was also in issue. My reading of the decision is that the only reason the Court refused the order sought was the prejudice to the employee who had flown in from the USA to attend the hearing. In addition, that judgment was not concerned with section 158(1B) of the LRA which requires intervention if it is just and equitable to do so and the court did not refer to that provision at all in its judgment.

[48] Sedibeng Diamond Mine related to an application to review a ruling granting condonation for late referral of dismissal dispute involving 165 employees. The application failed for several reasons, one of which was that the applicant failed to provide reasons why it is just and equitable for the court to intervene. A failure to provide reasons why it is just and equitable for the Court to intervene is fatal to an application to review a ruling in incomplete proceedings. In this case both Payne and the Department submitted that the Court should intervene to prevent the convening of arbitration proceedings that will in due course found to be null and void because condonation ought not to have been granted and the resources that will be expended in the process. In my view, these are cogent reasons why it is just and equitable for the Court to intervene in incomplete proceedings. Whether or not condonation ought to have been granted is obviously a different issue altogether as will be dealt with below.

[49] Even though the previous order of this Court joining Payne to the proceedings was by agreement between the parties and the Court was not called upon to pronounce on the issue, it was just and equitable for the Court to intervene in those proceedings because unless Payne was joined as a party, the Department would not have been restricted in rebutting O[...]’s version that he committed acts of sexual harassment against her. That was another instance where this Court should intervene in incomplete proceedings as it was just and equitable to do so.

Parties’ submissions on the review of the first ruling

[50] It will be recalled that the first ruling directed O[...] to file a condonation application. The commissioner ruled that whether or not the referral was made late can be determined together with a condonation application to avoid dealing with the matter in a piecemeal fashion. Payne and the Department are critical of the ruling and O[...] supports it.

[51] It is Payne’s submission that because section 10(3) of the EEA, read with section 191(2) of the Labour Relations Act[19], makes provision for ‘permitting’ the late referral of a dispute on good cause shown, a party that makes a late referral and fails to apply for condonation must be met with a finding that the referral is late, that the CCMA lacks jurisdiction for that reason and that should be the end of the matter. It is also Payne’s submission that a ruling directing O[...] to file a condonation

application is illogical and irrational as a commissioner cannot compel a party to exercise a right to seek condonation. Not even

section 138(1) can be relied upon to direct a party to file a condonation application, so the argument went. Reliance was placed on the decision of Oakfields Thoroughbred and Leisure Industries Ltd v McGahey and others[20] which found that even though the commissioner has discretion on the running of proceedings, there should be some semblance of procedural

order reminiscent of a trial. The submission is further that the commissioner’s decision to order O[...] to file a condonation

application came as a surprise and deprived Payne of the right to raise the waiver argument, given that rulings are final and binding

and may be enforced as if they are orders of this Court in terms of section 143 of the LRA.

[52] It is Payne’s further submission that the waiver argument is more compelling where a party voluntarily and unequivocally withdrew its conditional application for condonation, and that the commissioner ought to have taken note of this waiver. According to Payne, the only issue that remained for determination after the withdrawal of the condonation application was the in limine point that the referral was made late but that somehow the commissioner felt uncomfortable about making a finding that the CCMA

lacks jurisdiction. The ruling allowing O[...] to file a more substantive condonation application than the one which was withdrawn

creates a perception of bias in favour of O[...] and that O[...]’s counsel conceded during oral argument that the case for condonation was weak. The conclusion of Payne’s submission is that the commissioner’s reasoning that condonation could have been argued for the entire issue of jurisdiction to be determined was incorrect and irrational because “condonation cannot and should not determine the issue of jurisdiction”.

[53] The Department supported the argument that section 138(1) of the LRA which allows a commissioner to conduct proceedings as they deem fit does not permit a commissioner to descend into the arena and become an active participant in the proceedings giving rise to a perception of bias, given what the Court found in Satani v Department of Education, Western Cape and Others[21], Chabalala v Metal & Engineering Industries Bargaining Council and Others[22], and Grindrod Logistics (Pty) Ltd v SA Transport & Allied Workers Union obo Kgwele & Others[23]. Reliance was also placed on Rule 16 of the CCMA Guidelines on Misconduct Arbitrations which requires a commissioner to be fair to both parties, as well as a decision of this Court in SA Broadcasting Corporation v Commission for Conciliation, Mediation and Arbitration & Others[24] where the commissioner’s decision to condone the late referral of a dispute before determining the jurisdictional issue was found to amount to an irregularity warranting the review and setting aside of the ruling. The Department also relied on South African Post Office SOC Ltd v Commission for Conciliation Mediation and Arbitration and Others[25] (SA Post Office) where the Court found that it will not come to the assistance of a party that is out of time with a referral and fails to apply for condonation.

[54] The Department agreed with Payne that the commissioner ought to have dismissed the referral without affording O[...] an opportunity to file a condonation application as she had withdrawn the conditional condonation application and that the commissioner’s conduct in eliciting an application for condonation was irregular as a party cannot be compelled to seek an indulgence by applying for condonation. It was also submitted that in terms of Rule 9(4) of the CCMA Rules, the CCMA can advise a party to apply for condonation

because it made the referral late, but that directing a party to file a condonation application after the condonation application which was on the table had been abandoned was grossly irregular and that the commissioner exceeded his powers. In oral argument, Mr Kahanovitz submitted that in any event, CCMA Rule 9(4) does not apply to a commissioner giving advice but rather to the Commission.

[55] O[...] submitted that the conditional application for condonation made in an opposing affidavit was defective and that Payne understandably complained that the conditional application for condonation was prejudicial and irregular. She denies that she unequivocally and unreservedly withdrew the conditional application for condonation with no intention of filing a proper condonation

application if the commissioner ruled that the dispute referred to the CCMA was a section 10 dispute. She agreed with the Department’s

submission that the commissioner had to first determine the real nature of the dispute and that condonation could not be granted for a conditional application. She also submitted that a ruling dismissing the referral without first affording her an opportunity to apply for condonation would have been susceptible to review, and that Rule 9(4) of the CCMA Rules permits the Commission to assist a referring party to apply for condonation. She also points out that the Department, represented by the State Attorney and two counsel, had fully participated in the arbitration proceedings without raising the jurisdictional issue and had in fact opposed Payne’s jurisdictional point because it accepted that the dispute was properly before the CCMA but then did a volte-face in its heads of arguments. O[...] also disputes Payne’s contention that he was shocked by the ruling directing her to file a condonation application.

Is the first ruling reviewable?

[56] The commissioner was alive to the issue he was required to determine, viz whether the referral was late and whether the CCMA had jurisdiction to arbitrate the matter. The question before the commissioner was whether, as a matter of fact, the referral was made late. The correctness test applies to a ruling dealing with this issue,[26] a matter addressed in the second ruling which will be discussed below. Therefore, the concession by the Department that the referral

was made timeously, which concession was later withdrawn was irrelevant to the determination of whether, as a matter of fact, the

referral was made late.

[57] The commissioner was alive to the fact that the issue of the CCMA’s jurisdiction turned on whether the six-month time period provided for in section 10(2) of the EEA applied to the alleged acts of sexual harassment or whether section 60 of the EEA (which does not provide for a time period for referring claims of vicarious liability) can be read separately from section 10 of the EEA. The commissioner went on to find that the drafting of section 10 and section 60 of the EEA was unfortunate, that this was a complex matter, and that even though when the matter was argued there was a condonation application before him, it had been withdrawn. Therefore, to avoid dealing with the matter in a piecemeal fashion, he called for a condonation application so that he could determine the entire issue of jurisdiction.

[58] That ruling is attacked on the general grounds that it is irrational, that the commissioner committed an irregularity and exceeded his powers and l will deal with the specific contentions submitted in support of these general review grounds.

[59] Before l do that, l observe that while Payne submitted that he was shocked by a ruling directing O[...] to apply for condonation, the Department’s case is that during oral argument it objected to the commissioner following a procedure that created the impression that the commissioner was assisting O[...] to overcome a legal hurdle but that the first ruling failed to record this objection. The Department’s submission clearly contradicts Payne’s submission of being shocked by the ruling sought to be reviewed.

[60] Payne’s submission that the commissioner assisted O[...] by directing her to file a condonation application is in my view without substance and disingenuous. In oral argument, Mr Williams, for Payne, acknowledged that if O[...] had recorded the correct date when the dispute arose, “the CCMA would not have processed the referral, she would have been advised to apply for condonation”. Therefore, Payne understood and accepted that the CCMA advises parties to apply for condonation when referrals are made late. Doing so does not amount to descending into the arena or giving rise to a perception of bias as submitted by Payne and the Department. It was neither procedurally unfair to do so nor a crude exercise of discretion as argued on behalf of Payne.

[61] Section 138(1) of the LRA empowers the commissioner to deal with the matter in the manner he did.

[62] Obviously, a party delivering a condonation application must compile one that addresses good cause in order for condonation to be granted. In this case, it has not been suggested that O[...] was assisted with the contents of her application, other than the complaint that she was offered a second bite at the cherry which allowed her to deliver a more substantive application. There is no merit to these complaints as l will deal with below.

[63] The Department also conceded that the CCMA can advise a defaulting party to apply for condonation. The concession was correctly made as the CCMA Rules provide for this. There is no merit to Mr Kahanovitz’s submission that the rule in question applies to the Commission and not a commissioner. The Commission acts through its staff and commissioners.

[64] Payne’s submission that the commissioner ought to have dismissed the matter for lack of jurisdiction and that would have been the end of the matter makes no sense if one has regard to the submissions made by Mr Williams. Examples are:

‘So now, Commissioner, my first submission is that the point in limine must be upheld. That's the main ruling that the Second Respondent is seeking, that the CCMA does not have jurisdiction. Because it was…... That's where the matter should end. And the applicant should then make a substantive application for condonation and allow the respondent to address all that vigorously.’

[65] That submission was repeated when Mr Williams stated as follows:

‘…So with that being said, our position is that the point in limine must be upheld, again. That’s the end of the matter. Thereafter, the Applicant should make a substantive application in terms of the rules that we will address, l think in a more structured way…’

[66] Towards the end of his oral argument, Mr Williams submitted that:

‘… No man, no woman is going to welcome processes devoid of merit and the reason why we did address the issue of the prospects of success, when that condonation application is made, we're going to get to the absolute detail because the reality is there is no case…’

[67] Therefore, Payne knew and appreciated that a ruling that the CCMA lacks jurisdiction to hear and determine the matter would not be the end of the matter and that a substantive application for condonation could still be made. The commissioner’s ruling directing that such an application for condonation be filed was meant to fast-track the resolution of a dispute that the commissioner had lamented had been going on for two years with no resolution in sight and cannot be faulted.

[68] Even if the commissioner had dismissed the matter for lack of jurisdiction due to the fact that the referral was made late, this did not have the effect that O[...] would be precluded from applying for condonation. In PT Operational Services (Pty) Ltd v RAWU obo Ngwetsana[27], the Court stated the following:

‘[35] Although I agree that the appropriate order in a matter where urgency has not been shown should be striking the matter from the roll, it seems to me that even where the word ‘dismissed’ is used it does not necessarily mean that the dismissal amounts to a final order. One will still have to enquire, where there is doubt, whether the matter was dismissed on the merits or not. If it was dismissed on the merits then the order is final. If not, then it is not final. A finding that a matter is not urgent does not mean that there are no merits in the applicant’s case. Even if a matter is dismissed for lack of urgency it can and should be re-enrolled. To reason otherwise would be to allow form to triumph over substance.

[36] The same applies in my judgment to applications for rescission that are out of time and not accompanied by an application for condonation. Although the appropriate order would be to strike it from the roll, dismissing it does not mean that the merits of the rescission application have been considered. A commissioner may only hear the rescission application if it is accompanied or preceded by a proper application for condonation.

[37] To sum up. The commissioner could not consider the rescission application which was out of time without an application for condonation. He could therefore not exercise his powers, duties or functions in terms of section 144 because a condition precedent (condonation) has not been fulfilled. His order dismissing the application was just another way of saying ‘I cannot consider the application at this stage because there is no application for condonation. Without such application I have no jurisdiction to exercise my powers in terms of section 144 of the LRA’.

[38] I conclude that Cellier did not finally perform his statutory function or duty in relation to the merits of the rescission application on 12 August 2004. It cannot therefore be said that he exhausted his powers and discharged his mandate in relation to the rescission application. The Court a quo erred in coming to the conclusion that the ruling of 12 August 2004 rendered Cellier functus officio and that he could therefore not entertain the subsequent applications for condonation and rescission on 26 February 2007….’

[69] It is therefore clear from the above that a ruling dismissing a referral for want of jurisdiction due to the absence of a condonation application would not have been dispositive of the matter or subject to review as submitted by O[...]. Therefore, the commissioner’s ruling that O[...] files a condonation application was not irrational or irregular.

[70] Even though the ruling was in the form of an order, O[...] had an election in the matter. She could either choose to comply with it or ignore it. If she chose the latter option, that would have been the end of her dispute. Even though rulings are final and binding and may be enforced as if they are court orders, it is inconceivable that Payne or the Department would have insisted that O[...] must file a condonation application if she elected not to file one or that she must be held in contempt of court for failing to file the condonation application as directed. Even though Payne references section 143(4) of the LRA dealing with enforcement of rulings as if they are orders of this Court, he does not go so far as to say this is what he would have done had O[...] not filed a condonation application as ordered.

[71] Both Payne and the Department submitted that by withdrawing the conditional application for condonation, O[...] waived the right to file a condonation application. Apart from the fact that the Court was not addressed on the requirements for waiver which were not met on the facts of this case, the submission ignores O[...]’s case that her referral was not late. That was not a waiver of a right to apply for condonation. A condonation application must be filed as soon as a party realises that one is required and therefore, until it had been established that the referral was late, an application for condonation was not required.[28] This is what distinguishes this case from the SA Post Office matter relied upon by the Department.

[72] It must also be recalled that what was before the commissioner was Payne’s point in limine. While a conditional application for condonation could be filed in the meantime, in this case, the conditional application filed in an answering affidavit was irregular given CCMA Rules 9(2) and 31. Both Payne and the Department correctly pointed out the irregularity of the conditional application for condonation but are now in essence, on review, complaining that the commissioner ought to have determined that same irregularly filed application. The vacillation is impermissible.

[73] The commissioner’s exercise of discretion to determine the two issues simultaneously does not impact on the reasonableness of the approach adopted by O[...] that it must first be determined whether her referral was late.

[74] Moreover, the withdrawal of an application by a party does not have the effect that such party is forever precluded from bringing such an application in future. I was not referred to any case authority that the withdrawal by O[...] of her conditional condonation application had that effect and l align myself with what this Court found in Bliss Brands (Pty) Ltd v NASA The Workers & Others[29]. The conditional condonation application was not fully ventilated. It was withdrawn partly because Payne complained that it was irregular, and he was not given sufficient time to respond to it. But even if the conditional application had been fully ventilated, nothing precluded O[...] from withdrawing it, as long as this was done before a ruling was handed down.

[75] That the condonation application filed subsequently was more detailed and substantive did not prejudice any party as all responded to it.

[76] Payne’s submission that the commissioner could have determined the jurisdiction of the CCMA without a condonation application ignores the fact that the jurisdiction of the CCMA matter was challenged on the basis that the referral was late. Therefore, the issue of jurisdiction could not be separated from the issue of whether the referral was late.

[77] The first ruling stands as it is not irrational, it was not made irregularly or procedurally unfairly, and the commissioner did not exceed his powers in directing O[...] to file a condonation application.

The second ruling and the parties’ submissions

[78] In the second ruling, the commissioner recorded the issues for determination as whether the referral of O[...]’s dispute was out of time and if so, whether to grant condonation. He determined that the referral made in terms of section 10 of the EEA was late and that in terms of CCMA Rule 10(3) read with Rule 9, the CCMA lacks jurisdiction to hear and determine a dispute referred late until the late referral is condoned.

[79] In considering the condonation application, and with reference to the requirements for good cause, the commissioner reasoned that if regard is had to when the alleged acts of sexual harassment occurred, then the referral was substantially late. In other words, he accepted the submissions by both Payne and the Department that the dispute in respect of the first incident was referred to the CCMA two and a half years late, eighteen months late in respect of the second incident and four months late in respect of the third incident.

[80] On the explanation for the delay, the commissioner stated he would be careful not to make findings which have a bearing on the merits of the case but with reference to case authority, he found that the delay in referring the matter could be explained by O[...]’s hesitancy and the fact that the Department embarked on a process after it was made aware of the alleged acts of sexual harassment.

[81] On prospects of success, the commissioner found that O[...]’s vicarious liability claim against the Department would be sustainable if she could prove the alleged acts of sexual harassment which had been denied by Payne.

[82] The commissioner found the parties would not be prejudiced by a continuation of the matter as preparations had already been done and that, as the employer was a government department with specific obligations in terms of section 9 of the Constitution, the matter was of importance and in the public interest.

[83] The commissioner condoned the late referral, clothing the CCMA with jurisdiction to hear and determine the matter.

[84] On review, the heads of argument filed on behalf of Payne do no more than state that the ruling is irrational as pleaded in his supplementary affidavit. The affidavit in question pleads that the commissioner failed to apply condonation principles in a rational manner in that:

84.1 the Gaga v Anglo Platinum Ltd and Others[30] (Anglo Platinum) decision relied upon by the commissioner was concerned with the credibility of witnesses as opposed to condonation applications and that Anglo Platinum is concerned with delays in reporting sexual harassment matters to an employer and not delays in referring a matter to the CCMA.

84.2 that the commissioner failed to take into account the delay between April 2021 when O[...] ought to have referred the matter to the CCMA and 13 July 2021 when O[...] referred the dispute to the CCMA, in circumstances where O[...] was “sufficiently emboldened as at 19 October 2020 to lay criminal charges” against Payne. According to Payne, the commissioner ought to have calculated the six-month period from this date.

84.3 in the absence of a satisfactory explanation for the delay, the commissioner did not need to traverse the other condonation requirements.

[85] The Department supports an order reviewing the second ruling contending that it was wrong, and irrational given that the referral was made two years after the first incident and that there was no basis for finding that the incidents were continuing. According to the Department, the explanation constructed in the new condonation application was a blanket one for the entire period and was not supported by expert evidence as to O[...]’s psychological state. The submission was also that O[...]’s prospects of success were weak, and the matter was of no importance to the public. There is also the submission that O[...]’s damages claim is in excess of what the CCMA can award and that this pointed to poor prospects of success. In oral argument, Mr Kahanovitz submitted that in the event that the Court is disinclined to review the condonation ruling, it should at least substitute the ruling by specifying which of the three alleged sexual harassment incidents can be pursued.

[86] The second respondent supports the second ruling and prays for an order dismissing the review application

Analysis of the second ruling

[87] The first issue for determination was whether O[...]’s referral to the CCMA was out of time. The commissioner found that this was indeed the case as section 10 of the EEA required the dispute to be referred within six months of the act or omission complained of and that the first alleged incident of sexual harassment was made more than two years later and that in respect of the latest incident, the referral was made four months late. No party has taken issue with this finding even though O[...] has reserved her right to challenge the finding that the dispute was one in terms of section 10 of the EEA.

[88] The next question was whether the CCMA had jurisdiction to hear and determine the dispute and the answer depended on whether condonation for the late referral is granted.

[89] All parties agreed that the test to determine jurisdiction is correctness as opposed to reasonableness and l agree. However, where the issue for determination is condonation, l understand that the decision maker has a discretion. In Chetty v Baker Mckenzie[31], the Court stated thus:

‘It is trite that in such matters the appellate court will only interfere if it finds that the lower court has not exercised its discretion properly or judicially, in that it has either exercised it capriciously, or upon a wrong principle, or has not brought its unbiased judgment to bear upon the issue(s) to be decided, or has not acted for substantial reasons. Applicant must demonstrate that the discretion was exercised improperly or unreasonably. This is also the position in labour matters.’[32]

[90] Therefore, in my understanding, this Court will interfere with a condonation ruling where one of the requirements for interfering with an exercise of discretion has been met.

[91] The requirements for condonation are trite. Amongst the factors to be considered are the degree of lateness, the explanation thereof, prospects of success and the importance of the case.[33]

[92] Because the degree of lateness as found by the commissioner is not challenged on review, the Department’s submission that there was no basis for finding that the sexual harassment acts were continuing does not take the matter any further. When the commissioner considered O[...]’s condonation application, he was alive that the first alleged act of sexual harassment was committed more than two years back. Therefore, there is no basis for this Court substituting the condonation ruling with one that some acts of the alleged sexual harassment can be pursued but not others. All three incidents form part of the case that both Payne and the Department will be required to answer at the CCMA.

[93] As regards the explanation for the delay, Payne’s submission that the Anglo Platinum decision finds no application in determining condonation applications is without substance. There the Court addressed the fact that the complainant had not reported the sexual harassment acts against her until she resigned. The court found that:

‘The failure by the complainant to take formal steps against the appellant should be construed likewise in the light of the personal and power dynamic in the relationship, which probably operated to inhibit the complainant.’[34]

[94] Therefore, the Court acknowledged that power dynamics can inhibit a complainant from reporting a matter to an employer but there is no reason why the same consideration does not apply to referring a dispute to the CCMA. The commissioner found this to be the case based on O[...]’s explanation. Therefore, the commissioner did not misapply Anglo Platinum. That the complainant in that matter opted to resign does not distinguish that case from one where a complainant does not resign but nevertheless delays in reporting the alleged sexual harassment acts.

[95] Payne’s complaint that the commissioner failed to take into account that O[...] failed to explain the period from April to July 2021 fails to acknowledge O[...]'s explanation that she resolved to exhaust internal remedies before referring the matter to the CCMA. That is a reasonable explanation for the delay from September 2020 when O[...] reported the matter to the Department and July 2021 when she referred the dispute to the CCMA. The six-month time period is not calculated from when O[...] laid criminal charges against Payne as argued on behalf of Payne but rather from when the acts or omissions complained of were committed.

[96] Moreover, section 10(4)(b) of the EEA required O[...] to demonstrate that she made a reasonable attempt to resolve the dispute before referring it to the CCMA. Until the Department failed to take the necessary steps as set out in section 60 of the EEA, O[...] had no claim against the Department. That O[...] does not say whether she would have pursued against the Department even if it took action against Payne is irrelevant.

[97] There was therefore a full explanation for a delay, which required the decision maker to consider the other requirements for condonation.[35] That it is a blanket explanation in respect of the entire period does not mean that it is not a full and acceptable explanation. In any event, even though in his ruling the Commissioner did not refer to all that O[...] pleaded on the explanation for the delay, it is reflected in his affidavit and that explanation in my view is acceptable.

[98] That O[...] did not report the alleged acts of sexual harassment immediately goes to the merits of O[...]’s claim against the Department and not an issue that impacted the explanation for the delay in referring the matter to the CCMA. The Department is not precluded from arguing that it cannot be held liable for some or all of the alleged acts of sexual harassment because O[...] failed to report the incidents immediately as required by section 60 of the EEA.

[99] The commissioner’s finding that if O[...] can prove the alleged acts of sexual harassment she would have reasonable prospects of success cannot be faulted. The commissioner also made it clear that he would be cautious not to make findings that impact the merits. I therefore disagree that the commissioner ‘dodged’ dealing with the prospects of success as submitted on behalf of the Department. It must be recalled that the test in condonation matters is whether prima facie O[...] has prospects of success. Whether she will actually succeed will be determined once all the evidence has been led, including the medical reports that the Department require, and it will also have the benefit of a medical report by its own mental health expert as per the order of this Court.

[100] Payne must and will be given an opportunity to rebut O[...]’s version during the arbitration proceedings. Thus far, all there is from him are bare denials and he must have his day at the CCMAhis version has not even been heard, so that it can be tested.

[101] Even if O[...] had other claims which have since disappeared as submitted by the Department, that should not lead to a conclusion that the current claim similarly has no prospects of success.

[102] The Department’s submission that O[...]’s prospects of success are weak in circumstances where it conceded that its decision not to charge Payne was wrong cannot be taken seriously. The information that it would have obtained during a disciplinary hearing will now be obtained during the arbitration proceedings. It is still getting what it offered, except in a different forum.

[103] That O[...]’s claim is in excess of what the CCMA is permitted to award does not mean that O[...]’s claim has no merit. Should she be successful in her claim against the Department, the CCMA is obliged to make an award that falls within its jurisdiction.

[104] Most, if not all cases involving alleged acts of sexual harassment are of importance and must be entertained unless there are good and valid reasons for not entertaining them. The Department’s submission to the contrary is in my view unfortunate given that it is a state employer with obligations in terms of the Constitution as correctly pointed out by the commissioner. The fact that the matter was reported to provincial government officials is a further indication thates how important the matter has become.the matter is regarded as an important one.

[105] As far as prejudice is concerned, the Department’s witness who is no longer in the employ of the Department can be issued with a subpoena to testify if they refuse to do so willingly.

[106] There is no prejudice to Payne should the arbitration recommence now that his only issue that the referral was made late has been determined and condonation has been granted.

[107] For all the above-stated reasons, l will not interfere with the condonation ruling as it has not been demonstrated that the commissioner failed to exercise his discretion judicially, properly or reasonably. The granting of condonation was correct.

Costs

[108] Payne sought costs in the event that the review was successful because he was joined to the dispute by an order of court, that his in limine objection that the second respondent’s referral to the CCMA was out of time was upheld, that NEHAWU is well-resourced and that the respondents were warned in the notice of motion that in the event of opposition, costs would be sought.

[109] The Department did not make any submissions regarding costs.

[110] O[...] sought the dismissal of both review applications with costs against both Payne and the Department for supporting Payne’s application.

[111] In my view, an order that each party pays its own costs would be in accordance with the requirements of law and fairness as contemplated in section 162 of the LRA. Even though the law is settled on most of the issues raised in the matter, the question of the correct statute in terms of which rulings issued in EEA disputes must be reviewed is an issue that has not been debated prior to the current matter. I have also considered that the parties were successful with some but not all of their submissions.

[112] In the premise, I make the following order:

Order

1. The review application ought to have been brought in terms of section 158(1)(g) of the Labour Relations Act and not section 50(1)(h) of the Employment Equity Act.

2. It is just and equitable for the court to intervene in the incomplete CCMA proceedings where condonation was granted.

3. The application to review the first and second rulings is dismissed.

4. There is no order as to costs.

T Gandidze

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant: Advocate Nathan Williams

Instructed by:

Mr J Bezuidenhout of Smit Hendricks Attorneys

For the First Respondent: Advocate Colin Kahanovitz SC & Advocate J Williams

Instructed by:

Ms Melapi of the State Attorney

For the Second Respondent: Advocate Coen De Kock

Instructed by:

Mr Brandon Schiff of Bargraims Attorneys

[1] No 55 of 1998.

[2] The first respondent’s name changed to Western Cape Mobility Department.

[3] No 66 of 1995.

[4] Public Service Association of South Africa obo Mackay and 29 Others v Department of the Premier and 2 Others (PSA) unreported judgment under case no C153/2019 delivered 15 September 2022.

[5] (C568/2019) [2021] ZALCCT 86 (4 November 2021).

[6] PSA supra fn 4.

[7] Rules for the Conduct of Proceedings in the Labour Court 1665 of 1996.

[8] (J186/23) [2023] ZALCJHB 71 (12 March 2023).

[9] [2016] ZALCJHB 225; [2016] 8 BLLR 799 (LC).

[10] [2011] ZALCJHB 57; (2011) 32 ILJ 3042 (LC) at paras 19 - 23.

[11] [2008] ZALC 40; (2008) 29 ILJ 2588 (LC).

[12] [2009] ZALC 68; (2010) 31 ILJ 452 (LC).

[13] [2009] ZALC 35; (2009) 30 ILJ 2513 (LC).

[14] [2008] ZACC 15; (2008) 29 ILJ 2461 (CC) at paras 62-65.

[15] [2009] ZALC 57; [2009] 10 BLLR 989 (LC) at para 11.

[16] [2014] 1 BLLR 56 (LC).

[17] Sebibeng Diamond Mine supra fn 5.

[18] See: SA Rugby Players Association and others v SA Rugby (Pty) Ltd and Others [2008] ZALAC 3; (2008) 29 ILJ 2218 (LAC) (SA Rugby).

[19] No 66 of 1995.

[20] (2001) 10 BLLR 1147 at para 25.

[21] [2016] ZALAC 38; (2016) 37 ILJ 2298 (LAC) at para 22.

[22] [2013] ZALCJHB 299; [2014] 3 BLLR 237 (LC) at para 32.

[23] [2017] ZALAC 60; (2018) 39 ILJ 144 (LAC).

[24] (2003) 24 ILJ 999 (LC).

[25] (JR254/16) [2018] ZALCJHB 47(8 February 2018).

[26] SA Rugby supra fn 18; and City of Cape Town v SA Municipal Workers Union on behalf of Jacobs & Others (2009) 30 ILJ 1983 (LAC).

[27] [2012] ZALAC 34; (2013) 34 ILJ 1138 (LAC) at paras 36 – 38.

[28] Paragraph 4.7 of the heads of argument filed on behalf of Payne confirm that this is the position.

[29] [2024] ZALCJHB 95; (2024) 45 ILJ 1250 (LC).

[30] [2011] ZALAC 29; (2012) 3 BLLR 285 (LAC).

[31] [2022] ZALAC 12; (2022) 43 ILJ 1599 (LAC) at para 7.

[32] Referencing Tjospomie Boedery (Pty) Ltd v Drakensberg Botteliers (Pty) Ltd & Another 1989 (4) SA 31 (T), NUMSA & Others v Fibre Flair CC t/a Kango Canopies [2000] 6 BLLR 631 (LAC), Coates Brothers Ltd v Shanker & Others [2003] 12 BLLR 1189 (LAC) and PLSMIDTH Buffalo (Pty) Ltd v Hlakola [2018] ZALAC 40; [2019] 4 BLLR 363 (LAC).

[33] Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A).

[34] Anglo Platinum supra fn 31 at para 42.

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