Peels v Mthombeni N.O and Others (JR415/24) [2024] ZALCJHB 274 (25 July 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JR415/2024

In the matter between:

ROBERT PEELS

Applicant

and

JUSTICE SANTJE MTHOMBENI N.O.

First Respondent

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

Second Respondent

BRACKENGATE SUPERMARKET CC t/a

PHARMACY AT SPAR BRACKENGATE

Third Respondent

Heard: 4 July 2024

Delivered: 25 July 2024

JUDGMENT

MAKHUBELE, AJ

Introduction

[1] The Applicant filed an application to review and set aside a condonation ruling dated 6 March 2024 and issued under case number GAEK1515-24. The First Respondent (Commissioner) in his ruling, refused to grant condonation for the late referral of the Applicant’s unfair dismissal dispute.

[2] The Respondents did not oppose the application. The Third Respondent filed a notice to abide by the decision of this Court.

Material background facts

[3] The Applicant’s pleaded case can be summarised as follows:

3.1 The Applicant was approached and recruited by the Third Respondent on or about October 2022 while still employed by Van der Walt Apteek in Meyerton.

3.2 The Applicant had a meeting with Spyro and Litsa, being employees of the Third Respondent and was subsequently offered a position as Manager, which appointment the Applicant accepted subject to the date of completion to refurbish the premises.

3.3 In March 2023, the Applicant was informed that his date of commencement would be 1 June 2023, which appointment was on a permanent basis.

3.4 In terms of the Applicant’s appointment, the Applicant attended to all actions and managerial activities pertaining to the start-up of the pharmacy, which included the following: (a) Staff recruitment and hours of staffing; (b) Stock procurement; (b) Regulatory checks; (c) Clinic Facility; (d) Safety and compliance requirements; (e) Patient flow; (f) Financial forecasts; (g) Inspection points; (h) Pluming; (i) Software activation; (j) ICD 10 Codes; (k) Company representatives; and (l) Medical aid claims process.

3.5 The Applicant commenced employment with the Third Respondent as agreed on 1 June 2023. On 22 June 2023, an employee of the Third Respondent delivered a document to the Applicant and requested that the document be signed as an acknowledgement. The Applicant was unaware of what he signed and only realised after signing the document, with assistance of a legal practitioner, that it was a fixed term contract of employment which was backdated to 1 June 2023 and indicated that the Applicant’s contract with the Third Respondent terminated on 30 June 2023. The Applicant was dismissed on 30 June 2023.

The condonation application

[4] To evaluate the commissioner’s findings and the ruling he issued; it is necessary to consider the evidence before him.

[5] On 7 February 2024, the Applicant submitted an application for condonation in respect of the unfair dismissal dispute. The facts in support of the application for condonation are stated by the Applicant in the affidavit and/or written statement by the Applicant. The delay in referring the dispute was calculated to be 192 days late. The Applicant’s reason for late referral is that he was informed that he needed to submit a dismissal dispute at the Commission for Conciliation, Mediation and Arbitration (CCMA) in

Vereeniging which he did on 25 August 2023. As it was a Friday, the official at the CCMA mentioned that he would only take the form and the Applicant took a photograph of the first page showing the CCMA stamp. The Applicant received no further notices from the CCMA, and he then consulted a legal practitioner who informed him to telephone the CCMA. A certain Shawn phoned the Applicant thereafter and informed him promptly that he does not have a case as his income was too high. Another legal practitioner informed the Applicant that he does have a legitimate claim but that he needs to re-refer the dispute and apply for condonation.

[6] On prospects of success, the Applicant believes that the dismissal was unfair because he was not informed of any form of fixed term contract.

The Law

[7] The full bench in N v N[1] reaffirmed the principle on application for condonation and stated the following:

“This court has held that the standard for considering an application for condonation is the interests of justice. Whether it is in the interests of justice to grant condonation depends upon the facts and circumstances of each case. Factors that are relevant to this enquiry include but are not limited to the nature of the relief sought, the extent and cause of the delay, the effect of the delay on the administration of justice and other litigants, the reasonableness of the explanation for the delay, the importance of the issue to be raised in the intended appeal and prospects of success (Van Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus Curiae) [2017] ZACC 24; 2008 (2) SA 472 (CC) at 477A-B).”

[8] The Labour Appeal Court in NEHAWU obo Mofokeng and Others v Charlotte Theron Children’s Home[2] stated that the Labour Appeal Court has previously confirmed the principle that without a reasonable and acceptable explanation for a delay the prospects of success are immaterial.[3]

[9] 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.[4] The explanation for the delay must be both comprehensive and persuasive and should cover every period of the delay.[5]

[10] 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 commissioner’s decision is reviewable. The test on review is trite law as 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 reach. The Constitutional Court in Sidumo very clearly held that the arbitrator’s conclusion must fall within a range of decisions that a reasonable decision maker could make.

[11] The Labour Appeal Court in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA[7] 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 unreasonable…”

[12] In Parliament of the Republic of South Africa v CCMA and others,[8] 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, or exercised it improperly or unfairly.”

Grounds for review and analysis

[13] It is clear from the Condonation Ruling that the commissioner was well aware that the Applicant had to show good cause for the late referral of the dispute to be condoned.

[14] The Commissioner in his ruling, considered all facts and submissions made by the Applicant regarding good cause for the late referral of the dispute to the CCMA.

[15] In considering whether or not to grant condonation, the commissioner had to consider degree of lateness, the explanation for the lateness and the prospects of success.

[16] The Commissioner found that a delay of 192 days to challenge an allegedly unfair dismissal is excessive. The Commissioner said this excessive delay requires compelling/plausible reasons. The Commissioner considered the Applicant’s submission that he initially referred a dispute at the CCMA and upon inquiry in August 2023 about developments around his dispute, he was told that no dispute was received or captured by the CCMA. The Commissioner found that from August 2023 to at least the first week of February 2024 the applicant did not do anything to pursue his dismissal dispute with the CCMA until the first week of February 2024 when he was advised by a legal practitioner that he has “a legitimate claim” and that he needs to apply for condonation.

[17] The Commissioner reached a conclusion that the reasons advanced by the Applicant for his late referral do not amount to an explanation at all for such an excessively late referral.

[18] The Applicant’s grounds for review can be summarised as follows:

“The First Ground for review is that the Commissioner made several errors of fact. The Applicant stated that the Commissioner indicates in his ruling that the Applicant was informed by the CCMA in Vereeniging that his referral was not captured, which information was not stated in the Applicant’s condonation application.

The Second Ground for review is gross irregularity of the Commissioner by making an error of fact and law by finding that the Applicant is not a lay person by virtue of his position or appointment as Pharmacist.

The Third Ground for review is the gross misconduct by the Commissioner by failing to apply his mind to the facts of the matter and the prejudice that the Applicant suffered as a result of the CCMA in Vereeniging’s failure to provide the service in accordance with the powers afforded to it.

The Forth Ground for review is the gross misconduct by the Commissioner in failing to consider the opposing affidavit filed by the Third Respondent and by implication, failing to consider the Applicant’s replying affidavit which offers a lot of information in substantiation of the information provided in its original condonation application.”

[19] I am of the view that the decision reached by the Commissioner in the present case is one that a reasonable decision maker could reach. The Commissioner did not consider the degree of lateness in isolation of the explanation for the delay. I find that the Applicant failed to provide a full explanation for the period from August 2023 to February 2024. From the condonation application, the Applicant failed to provide a full explanation of any steps he took to pursue his unfair dismissal dispute.

[20] I considered the incorrect finding by the Commissioner that the Applicant is not a lay person by virtue of his position or appointment as a pharmacist. The Applicant is a lay person in law. I am of the view that the incorrect finding by the Commissioner on the lay person issue, and the other grounds for review relied on by the Applicant, do not render the ruling reviewable.

[21] It is not necessary for this court to even consider the Applicant’s prospects of success in that the delay in referring the dispute is excessive and the Applicant failed to provide an acceptable explanation for the delay. However, I noted that the Applicant signed a fixed term contract of employment with the Third Respondent. I am of the view that the Applicant would not succeed in proving that he was permanently employed by the Third Respondent. During the hearing of this application, the attorney for the Applicant, Mr Brits, submitted that the Applicant signed the fixed term contract of employment without reading the contract.

Conclusion

[22] I have to consider the grounds for review within the context of the test this Court must apply in deciding whether the commissioner’s decision is reviewable. The Commissioner exercised his discretion based on the facts before him.

[23] The Applicant failed to make out a proper case that the exercise of the Commissioner’s discretion was not done judicially or fairly, after taking into consideration all the relevant facts.

[24] The question is whether the decision taken by the Commissioner was reasonable based on the evidence placed before him. In answering this question, I find that the Commissioner’s findings fall within a band of reasonableness based on the evidence that was placed before him and are not to be interfered with on review.

Costs

[25] The review application is not opposed by the Respondents. The Third Respondent filed a notice to abide by the decision of this court. For these reasons, there should be no order as to costs.

[26] In the premises the following order is made:

Order

1. The application for review is dismissed

2. There is no order as to costs.

D. Makhubele

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr J Brits (Attorney)

Instructed by: Higgs Attorneys Inc

[1] (A5050/2020; 36343/2014) [2022] ZAGPJHC 569 (16 August 2022) at para 3

[2] (2004) 25 ILJ 2195 (LAC) at para 24.

[3] See: Miya v Putco Limited; PPAWU and Others v A F Dreyer and Company (Pty) Ltd [1997] 9 BLLR 1141 (LAC); Toyota Marketing v Schmeizer [2002] 12 BLLR 1164 (LAC) at para. 15.

[4] Olivier v Bloemfontein Metal Merchants CC t.a Southern Cross Industries and Others (JR 809/2021) [2023] ZALCJHB 276 (10 October 2023) at para 12.

[5] Ibid.

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

[7] (2014) 35 ILJ 943 (LAC) at para 16.

[8] [2018] ZALCCT 12 (24 April 2018) at paras 13 – 14.