Phamaceutical Health Care Distributors t/a Fuel Logistics v Commission for Conciliation, Meditation and Arbitration and Others (JR3506/09) [2016] ZALCJHB 335 (26 August 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR 3506/09

In the matter between:

PHAMACEUTICAL HEALTH CARE

DISTRIBUTORS t/a FUEL LOGOSTICS

Applicant

And

COMMISSION FOR CONCILIATION

First Respondent

MEDIATION AND ARBITRATION

J MTHUKWANE N.O

Second Respondent

JONAS LEBEKO MASHAO

Third Respondent

Heard: 05 May 2016

Delivered: 26 August 2016

Summary: Application to dismiss review application due to unreasonable delay. The principles governing undue delay in prosecuting a review

application restated.

MOLAHLEHI J

Introduction

[1] This is an application to dismiss the review application made under case number JR 3506/09, filed with this court some five years ago. The application is opposed by the respondent, the applicant in the main review application. I shall for, ease of reference refer to the respondent hereinafter, as “the employer” and the applicant as “the employee.”

[2] The review application in this matter relates to the challenge of the arbitration award made by the second respondent (the Commissioner)

under case number GATW 8437 – 09 dated 30 November 2009.

[3] In terms of the arbitration award the Commissioner found the dismissal of the employee by the employer to have been substantively unfair. It was for that reason that the Commissioner ordered the employer to reinstate the employee and also pay certain compensation.

[4] The employee has also prayed in the notice of motion to have the arbitration award made the order of the Court.

[5] The dismissal of the employee was consequent to the following charges against the employee:

"1. Failure to comply with Company policy in that you refused to undergo a Polygraph test to support or annul a previous polygraph test that you have failed. Your actions led to the trust relationship between the Company and yourself to have broken down.

2. Failure to comply with Company policy by providing the incorrect residential details to the Company. Your actions led to the trust relationship between the company and yourself to be broken down".

[6] The refusal to undergo the polygraph test arose in the context where the employee had already taken the first test. After undergoing that test the employer required him to undergo the second test.

[7] The Commissioner regarded the requirement that the employee should undertake the second polygraph test as "double jeopardy." He reasoned that the employer was not entitled to compel the employee to attend the second test and that the employee was entitled to refuse because there was no provision in the policy that required him to attend the second polygraph test. It was for this reason, that the Commissioner found that the employee was justified in refusing to attend the second polygraph test.

[8] The review application was launched on 8 January 2010. On 10 April 2010, the CCMA filed the notice in compliance with the provisions of rule 7 A (3) of the Rules of the Court (the Rules).

[9] The essence of the applicant's application to dismiss the review application is that the employer has failed to uplift the record which the CCMA has filed with the Court.

Preliminary point

[10] The employer has raised a preliminary point concerning failure by the employee to initial each of the pages of his affidavit. It is common cause that the employee has failed to initial each of the pages of his affidavit. The employer contends that the defect of failing to initial each page of the affidavit is fatal enough to warrant the dismissal of the employee's application.

[11] The requirements for a valid affidavit are set out in Regulation 4 of the Regulations Governing the Administration of an Oath or Affirmation promulgated in terms of the Justice of Peace and Commission of Oaths Act.[1]

[12] In Swart v Swart,[2] the court held that the provisions of regulation 4 were directory and that the court could condone non-compliance with its provisions where there has been substantial non-compliance.[3]

[13] In Dawood v Mahomed,[4] the court in dealing with the same issue had the following to say:

“In deciding whether compliance is of such a nature that the Court should refuse to entertain the affidavit it is clearly relevant to have regard to the nature and purpose of the requirement with which there has been failure to comply."

[14] In the present matter, whilst there is no dispute that the employee had failed to comply with the requirement of the regulation, there is however substantial compliance. The non-compliance is accordingly condoned.

The principles governing unreasonable delay rule.

[15] The factors which a court takes into account in considering an application to dismiss a review application for undue delay are the following: (a) the length of the delay, (b) explanation for the delay, (c) effect of the delay on the other party, and (d) the prejudice that applicant will suffer should the review application not be dismissed. The approach to adopt is that which is set out in Bezuidenhout v Johnson NO and others,[5] where the court in dealing with this issue had the following to say:

"When an Applicant that he has been dilatory in pursuit of its relief, and finds himself outside the prescribed periods, it is vital that a good explanation needs to be provided for such delays as may have occurred in order to warrant the granting of indulgence to the defaulting party . . . The prejudice suffered by party as a result of undue delays is another factor to consider . . ."[6]

[16] The Constitutional Court recently in dealing with the same issue, in Toyota SA Motors (Pty) Ltd v CCMA and Others[7] held that:

"[34] Toyota did not challenge the proposition that the Labour Court had the power to dismiss its review application if it unreasonably delay in pursuing the review. It needs to be stressed that when assessing the reasonableness of the delay, sight must not be lost of the purpose of the LRA. "

[17] The court then proceeded to quote with approval the purpose of the LRA as set out by Ngcobo J said in CUSA v Tao Ying Metal Industries and Others,[8] when he said: "

"The LRA introduces a simple, quick, cheap and informal approach to adjudication of labour disputes. This alternative process is intended to bring about expeditious resolution of labour disputes. These disputes, by their very nature, requires speedy resolution. Any delay in resolving a labour dispute could be detrimental not only to the workers who maybe without a source of income pending the resolution of the dispute, but it may, in the long run, have a detrimental effect on an employer who may have to reinstate workers after a number of years."[9]

[18] In Toyota the Court said:

"[45] Excessive delays in litigation introduce a reasonable belief, especially on the part of the successful litigant, that the order or award had become unassailable. This is so in all the more labour disputes. Mr Makhotla (the employee) was entitled to the Labour Court for the relief sought in order to have closure and get on with his life."[10]

Evaluation/Analysis

[19] The relief which the employee seeks in this matter is that of having the review application dismiss on the ground that the employer has unreasonably delayed in its prosecution of the review application.

[20] It is common cause that there has been an excessive delay in prosecuting the review application to finality. The employer having

initiated the proceedings is responsible for making sure that all the necessary steps that it is responsible for in prosecuting the review are taken. The inaction of the employee is of course a factor to take into account but it is not decisive to employee’s application. The question of whether the inaction of respondent in prosecution of the review applicant is significant will always depend on the circumstances of each case. Its weight is reduced considerably when regard is had to the period of the delay and explanation proffered by the applicant in the review application.

[21] The employer in the present matter blames the CCMA for the delay in that it is alleged to have failed to file the record of the arbitration proceedings. It is stated in the answering affidavit that several attempts were made to have the CCMA produce the record. This allegation has however not been substantiated, in that there is no confirmatory affidavit from the CCMA, nor has the employer attached any correspondence in which it called on the CCMA to file the record. In the absence of such evidence, in my view, no weight can be attached to this allegation when the reasonableness of the explanation proffered by the employer is considered. It is also important to note that the employer talks about reconstruction of the record before confirming with the CCMA that the record cannot be found. There is no evidence of any step that the employer took compel the CCMA to produce the record.

[22] The employer further attributes the delay in prosecuting the review application to the availability of the employee. It says in this regard that the employee could not be located for the purposes of reconstruction of the record. It is further alleged that the letter which had been addressed to the employee for the purposes of arranging a meeting for reconstruction of the record, was returned from the post office as uncollected. Again, this allegation is unsubstantiated as the said letter is not attached to the employer's papers.

[23] In my view there can be no doubt that the employee who had been successful in challenging his dismissal, is not only prejudiced but he continues to suffer the uncertainty of what the status of the arbitration award is.

[24] In light of the above I am of the view that the employee has successfully made out a case justifying the dismissal of the employer’s review application due to unreasonable delay. I also see no reason why the arbitration award should not be made the order of the court in terms of s158 (1) (c) of the LRA. Furthermore, I see no reason in law and fairness why costs should not follow the results.

Order

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

1. The review application made under case number JR 3506-09 is dismissed for unreasonable delay in its prosecution with costs.

2. The arbitration award made by Second respondent under case number GATW 8437 – 09 dated 30 November 2009 is made the order of the Court.

__________________________________

E, Molahlehi J

Judge of the Labour Court Johannesburg

Appearances:

For the Applicant: Advocate M Sehunane,

Instructed by:

Advocate Sehunane Attorneys.

For the Respondent: Guardian Employers Organisation.

[1] Act number 16 of 19963.

[2] 1950 (1) SA 263 (O).

[3] S v Msibi 1974 (4) SA 821 (T)

[4] 1979 (2) SA 361 (D and CLD).

[5] (2006) 27 ILJ 2337 (LC)

[6] Paragraph 35 and 36

[7] (2016) 37 ILJ 313 (CC)

[8] [2008] ZACC 15; 2009 (2) SA 204 (CC); 2009 (1) BCLR 1 (CC); [2009] 1 BLLR 1 (CC); (2008) 29 ILJ 2461 (CC).

[9]Paragraph 63.

[10](2016) 37 ILJ 313 (CC)