South Africa Transport and Allied Workers Union o.b.o Simeon Simelani v National Bargaining Council for the Road Freight Industry and Others (JR502/01) [2003] ZALC 65 (28 May 2003)

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT BRAAMFONTEIN CASE NO.JR502/01

In the matter between:

SOUTH AFRICA TRANSPORT AND ALLIED

WORKERS UNION O.B.O SIMEON SIMELANI APPLICANT

And

NATIONAL BARGAINING COUNCIL FOR

THE ROAD FREIGHT INDUSTRY FIRST RESPONDENT

THE DISPUTE COMMITTEE OF COUNCIL SECOND RESPONDENT

W. K. VAN DER MERWE TRANSPORT THIRD RESPONDENT

JUDGMENT

ZILWA AJ

INTRODUCTION

1. This is an application brought in terms of section 158 (1) (g) of the Labour Relations Act no. 66of 1995 (Athe Act@), for the review and setting aside of the ruling made by the second respondent under the auspices of the first respondent on the 13th March 2001, in terms of which the second respondent refused to grant condonation to its member, SIMEON SIMELANI (Athe employee@) for the late referral of the dispute to the first respondent in terms of section 19(2) of the Act.

The third respondent opposed the application.

2. The court was asked to determine whether, on the facts and applicable law, the second respondent has failed to apply its mind properly when it considered the applicant=s application for condonation that was placed before it.

BACKGROUND FACTS

3. The employee was dismissed by the third respondent on the 28th September 2000. The employee then approached the applicant with a view to pursue the matter in terms of the dispute resolution mechanism.

4. The applicant referred the dispute to the Commission for Conciliation Mediation and Arbitration (Athe CCMA@) on the 27th October 2000.

5. On the 14th November 2000 the applicant received a letter from the first respondent dated the 1st November 2000 stating that the dispute is required to be referred to the first respondent being the appropriate Bargaining Council that has jurisdiction in the matter.

6. The applicant referred the dispute to the first respondent on the 22nd November 2000 without an application for condonation for the late referral thereto.

7. On the 7th December 2000 the first respondent addressed a letter to the applicant advising, inter alia, that the applicant must apply for condonation, and a requisite application form was attached thereto with the instruction that it must be completed by the employee in detail. This letter was apparently received by the applicant on the 21st December 2000.

8. The application for condonation, in a form of an affidavit, was submitted by the employee to the first respondent under cover of the applicant=s attorneys of record on the 15th January 2001.

9. The second respondent considered the employee=s application for condonation on the 13th March 2001 and was refused by second respondent. It concluded, from the facts presented before it, that the employee failed to explain the delay in the referral of the matter to it, that the applicant was clearly negligent in not correctly referring the matter, and in particular the prospects of success had not been adequate dealt with.

FACTS PRESENTED BY THE APPLICANT TO THE FIRST RESPONDENT

10. In his affidavit in support of his application for condonation the

employee stated the date of dismissal (28 September 2000),

the date of referral of the matter to the CCMA (27 October

2000), the date on which the applicant received the letter from

CCMA (14 November 2000) and the date on which the dispute

was referred to the first respondent (22 November 2000).

11. It further stated that as at the referral date the matter was

already out of the 30 days limit and that the cause of lateness

was due to the applicant referring the matter to a wrong body

and the applicant had to be blamed for that situation, for being

24 days late.

12. On the issue of the prospects of success, the employee

merely stated that Athere are prospects of success because

the dismissal is substantively and procedurally unfair@.

13. The issue of prejudice was addressed by stating that a notice

will be given to the third respondent in order to have their

representative present, and that if the application is not

granted he will be prejudiced because that will be the end of

the matter.

FACTS PRESENTED BY APPLICANT IN THIS COURT

14. In his affidavit submitted in support of the review application in

this court, the employee has in essence re-iterated the facts

deposed to in the affidavit presented to the first respondent.

However, of more significance, for the first time the employee

discloses that an internal disciplinary hearing was held on or

about the 19th June 2000, constituted by the third respondent

to determine certain charges against him which was chaired

by an external chairperson, that he was found not guilty, and

that the third respondent held a further hearing in form of an

appeal which took place on the 28th September 2000, where

he was found guilty and dismissed. (paragraph 6.2 of

employee=s affidavit)

15. When addressing the issue of prospects of success, the

employee refers to his averments in paragraph 6.2 of his

affidavit which facts were not presented to the first

respondent.

16. The applicant contends that the 24 days delay was not

substantial and that he has tendered a reasonable explanation

thereof, and that there is no prejudice to be suffered by the

third respondent.

GROUNDS OF REVIEW

17. It is trite law that the Labour Court has wide jurisdiction to

review decisions and ruling made by other relevant bodies in

terms of section 58 (1) (g) of the Act. However, this court does

not have unlimited powers to review and substitute its own

decision with that of the relevant body under review.

18. I refer to the relevant case of MOOLMAN BROS V. GAYLARD

N. O. AND OTHERS (1998) 19 ILJ 150 LC,

where Seady AJ said the following:

AThe decision of a commissioner to condone the late

referral of an unfair dismissal dispute in terms of section

191 (2) of the Act is discretionary in nature. It is not a purely judicial decision, although of course the decision must be exercised judicially, on a consideration of all the facts and what would be fair to both sides. This court should not readily interfere with the exercise of discretion. If in the exercise of this discretion, a commissioner makes an error in law, this does not render the decision of the commissioner reviewable unless it is a material error in the sense that it results in the commissioner=s asking the wrong question or basing his or her own decisions on a matter not prescribed by the statute. The Act does not suggest that the legislature intended this court to interfere more readily in decisions of this nature. Accordingly if the first respondent made an error in law in coming to her decision to grant condonation, this court must accept that discretionary decision whether right or wrong and not interfere with the first respondent=s views merely because it believes these views to be wrong@. (emphasis added)

19. The learned judge further stated at page 156 A through to D

the following:

AThis is not an appeal from the decision of the commissioner, it is an application for review and set aside her decision on the grounds that it was grossly unreasonable or seriously irregular. I doubt that this court, on the facts before the first respondent would have granted condonation. However, this does not make first respondent=s decision reviewable. In determining whether good cause was shown, first respondent applied her mind to the factors set out in Melane=s case and having considered them and the philosophy behind the Act, she decided to grant condonation. I do not think that it can be said that she acted in a way that was grossly unreasonable or seriously irregular because of the weight that she attached to each emphasis to the explanation for the lateness cannot be regarded as grossly unreasonable or seriously irregular. First respondent weighed the Melane factors against the other, not treating any one of them as individually decisive. In doing so, she applied her mind and exercised her discretion judicially. This approach to condonation has a long history and has recently has been endorsed by the labour Appeal Court in Forster V. Steward Scott Inc. (1997) 18 ILJ 367 (LAC) at 369 C-E@ (emphasis added).

20. see also Edgars Stores (PTY) LTD V. Director, CCMA and others (1998) 1 BLLR 35 LC

21. It is apparent from the second respondent=s reasons for

refusing the application for condonation that they followed the

principles enunciated in MELANE V. SANLAM INSURANCE

CO. 1962 (4) S. A. 531 (A), it considered the degree of

lateness, reasons or grounds for lateness, prospects of

success and the potential prejudice to the parties.

22. It seems to me that it was critical that the applicant failed to

state any ground in support for his prospects of success as

required by the Melane case which was duly adopted by this

court in the Foster case supra.

23. In reading the case of JAMELA V. ACCORD (2001) 2 BLLR

150 (LC) referred to by the applicant, which I consider as an

obiter dictum, I am not persuaded that it stands as an authority

in support of an applicant who has failed to mention any

prospects of success in his application for condonation. I can

only conclude that it only assists an applicant who has not

dealt comprehensively with the prospects of success and

cannot assist an applicant who has failed to do so at all. I am

not convinced that my brother Waglay intended to jettison the

Melane principles.

24. In any event, without necessarily making a finding on whether

on the facts presented by the employee to the first

respondent were sufficient or not, I am inclined to follow

Seady J. in the Moolman case supra in that the second

respondent did apply its mind to the application, consider the

relevant principles in the Melane case and exercised its

discretion judiciously on the facts presented before it.

Consequently this court must accept this discretion in the

absence of gross unreasonableness on its part. In the

circumstances I am not convinced that the second

respondent did not apply its mind when it considered the

application for condonation.

25. In the circumstances I make the following order:

a. The application is dismissed

b. There be no order as to costs

ZILWA A J

DATE OF JUDGMENT : 28 MAY 2003

FOR APPLICANT : G. N. MOSHOANA OF

MOHLABA & MOSHOANA INC.

FOR RESPONDENT : D. J. COETSEE OF

DIRK COETSEE ATTORNEYS