Radebe v Industrial Development Corporation of SA and Others (JR94/15) [2016] ZALCJHB 462 (3 June 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no JR 94/15

In the matter between

ILONA NOTHEMBA RADEBE Applicant

And

INDUSTRIAL DEVELOPMENT CORPORATION OF SA First

Respondent

JW THEE N.O. Second

Respondent

CCMA Third

Respondent

Heard: 2 June 2016

Delivered: 3 June 2016

JUDGMENT

VAN NIEKERK J

[1] This is an application to condone the late filing of an application to review and set aside an arbitration award issued by the second respondent, to whom I shall refer as ‘the arbitrator’. In his award, the arbitrator upheld the fairness of the applicant’s dismissal by the first respondent.

[2] The application for review was filed outside the six-time limit established by s 145 of the LRA, and the applicant seeks condonation

for the late filing of the application. The award under review is dated 10 November 2014. The applicant avers that to the best of her recollection, she received the award on that date. The six-week period expired on 22 December 2014. The application for review was filed only on 20 January 2015, some 28 days late. The applicant states that on receipt of the award she decided to terminate the mandate of her then attorney of record and consulted with her current attorney on 9 December 2014. She was advised that she had 60 days within which to file a review application and calculated that she had until the end of January 2015 to do so. The attorney’s offices were closed until 5 January 2015. On 9 January 2015, a consultation with counsel was arranged. That consultation took place on 14 January 2015. At that stage, the applicant states that she was advised that the application had to be filed within a period of six weeks from the date of receipt of the award. The papers were drafted on an urgent basis and the application filed, as I have indicated, on 20 January 2015. In regard to the prospects of success, the applicant submits, in a single sentence, that her prospects are good, or ‘at least reasonable’.

[3] The principles to be applied are well-established. The starting point is that an applicant in an application such as the present seeks an indulgence. The court must have regard to the period of the delay, the explanation proffered for the delay, the applicant’s prospects of success and the respective prejudice to the parties should condonation be granted. The interests of justice will ordinarily reflect regard to all of these factors, but the exercise of judicial discretion in the circumstances is not necessarily limited to those facto-s (Grootboom v National Prosecuting Authority [2014] 1 BLLR 1 (CC)).

[4] This court has conventionally applied the approach that in the absence of a satisfactory explanation for an inordinate delay, the applicant’s prospects of success are ordinarily irrelevant (See NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC)). The court has also emphasised that in applications to review and set aside arbitration awards, an applicant must necessarily act with the degree of diligence required by the rules of this court and the practice manual, thus giving effect to the statutory imperative of expeditious dispute resolution. In Toyota SA Motors (Pty) Ltd v CCMA & others (CCT 228/14; 15 December 2015) the Constitutional Court recently emphasised that one of the fundamental purposes of the LRA was to establish a system for the simple, quick, cheap and informal adjudication of labour disputes. When it assesses the reasonableness

of a delay, the court must not lose sight of this purpose.

[5] In the present instance, the period of delay is not inordinate. In so far as the explanation for the delay is concerned, this court has previously held that incorrect advice given by a legal representative does not ordinarily find a satisfactory explanation for a delay. Further, the applicant’s explanation that she was advised that she had 60 days from 10 November 2014 within which to file the application for review does not tally with her understanding that the review was to be filed by the end of January 2015. Be that as it may, I will accept, with the degree of reluctance, that the explanation for the delay is adequate. This leaves the applicant’s prospects of success. The applicant has failed in an application for condonation to address fully her prospects of success – the assertion that these are good or at least reasonable is not a sufficient basis for this court to engage in a proper assessment of the merits of the review – the applicant appears to be content to have the court scrutinise the papers in that application without the benefit of her submissions on her prospects. Be that as it may, in my view, in an application such as the present, the starting point is the hurdle faced by any applicant in a review application. The Labour Appeal Court has mentioned, more than once, that the hurdle faced by an applicant is formidable, and that it is not often that this court will intervene and set aside an award. It is incumbent on the applicant to show that the outcome of the proceedings were so unreasonable that no reasonable decision maker could reach the decision reached by the arbitrator. Further, the court has emphasised that a failure by an arbitrator to apply his or her mind to the evidence in the proceedings under review is not in itself a ground for review; the award must fail to meet the threshold to which I have referred. Insofar as the arbitrator’s view on a fairness of sanction is concerned, the same principle applies, i.e. that this court must respect the latitude afforded to an arbitrator to determine a face sanction for any misconduct found to have been committed. Again, the scope for intervention is limited.

[6] Insofar as the applicant’s main complaint against the arbitration award is that the arbitrator found her guilty of a charge

of which she had been found not guilty in the internal disciplinary processes, it is apparent from the record that contrary to what the applicant submits, the arbitrator was acutely aware that the arbitration hearing concerned a single charge, being charged to in the internal hearing, a charge relating to a failure to disclose a conflict of interests. The sum total of the arbitration proceedings and a holistic reading of the award show that the arbitrator did not and could not have found the applicant guilty of charges one and two. At various intervals during the arbitration proceedings, the arbitrator was careful to remind the parties that he was concerned only with charge two and he allowed evidence only in relation to that charge. I fail to appreciate how it can be asserted, in the circumstances, that the arbitrator failed to apply his mind to the issues that he was required to determine, or that he exceeded his powers. Similarly, in relation to the second ground for review (i.e. that the arbitrator relied on circumstances of charges one and two to find that dismissal was an appropriate sanction) it is clear from the record that the arbitrator was alive to the fact that the applicant had been acquitted of charge one. His conclusion in respect of charge two was premised on the applicant’s own version, which the arbitrator found to be unreliable, as well as her arguments, which he found to be unpersuasive. In relation to the ground for review to the effect that no evidence had been placed before the arbitrator which would have enabled him to find that the applicant was indeed guilty of charge two, this is simply not the case. The applicant could not

deny her role in the human resources department, which required her to inform new employees about the first respondent’s ethics policy, nor could she deny the term of her contract in terms of what she undertook to familiarise herself with the first applicant’s policies. In the arbitration proceedings, the applicant testified that she had pleaded guilty to charge two and wished to explain a conduct by way of mitigation. I fail to appreciate in the circumstances how it can be said, even for the limited purposes of assessing the applicant’s prospects of success, that the conclusion reached by the arbitrator (i.e. that the applicant was guilty of charge two) is one that a reasonable commissioner could not reach. Finally, in relation to sanction, a breach of the code of ethics is an act of serious misconduct and to uphold a dismissal in the circumstances, in my view, cannot amount to a decision so unreasonable that no reasonable decision maker could come to it.

[7] Finally, in relation to the respective prejudice to the parties, while it is true that the applicant will be denied her opportunity to challenge the award by way of review should condonation be refused, the prejudice to the first respondent is that it would be obliged to oppose a review in circumstances where the merits appeared to be poor, if they exist at all.

[8] For the above reasons, I am not persuaded that it is in the interests of justice that condonation be granted.

I make the following order:

1. The application for condonation is refused.

2. The review application is dismissed.

ANDRE VAN NIEKERK

JUDGE OF THE LABOUR COURT

REPRESENTATION

For the applicant: Ms. Kungoane, Mfoloe Incorporated

For the first respondent: Adv. X Matyolo, instructed by Werksmans Attorneys