Thobakgale v Commission For Conciliation Mediation and Arbitration and Others (JR2038/22) [2024] ZALCJHB 239 (24 June 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 2038/22

In the matter between:

JOSIASE RUDZANI THOBAKGALE

Applicant

and

COMMISSION FOR CONCILIATION MEDIATION

AND ARBITRATION

First Respondent

COMMISSIONER ALUCIA SIBUYI N.O

Second Respondent

ELEMENT SIX PRODUCTION (PTY) LTD

Third Respondent

Heard: 7 May 2024

Delivered: 24 June 2024

JUDGMENT

NAIDOO, AJ

Introduction

[1] The applicant seeks to review and set aside a ruling issued by the second respondent (commissioner) on 13 September 2022. In her ruling, the commissioner refused to condone the late referral by the applicant of an unfair discrimination dispute in terms of s 10(3) of the Employment Equity Act[1] (EEA). The review application is unopposed.

The commissioner’s ruling

[2] The application for condonation before the commissioner was unopposed and decided on the basis of the papers that served before the commissioner, with the applicant appearing in person. It is sufficient to state that the applicant alleged that the third respondent unfairly discriminated against him on 3 December 2021.

[3] According to the commissioner, the applicant referred an unfair discrimination dispute together with a condonation application to the CCMA on 11 August 2022, which was outside of the 6 month period as prescribed under s 10 (2) of the EEA. In his condonation application, the applicant submitted that the referral was 254 days late. The reason he identified for referring the dispute late was because he was “confused as to the date when the dispute arose”.

[4] The commissioner found that she had to determine whether the applicant had shown good cause for the late referral. In regard to the degree of lateness, the commissioner established that the referral was not 254 days late (as submitted by the applicant)

however, it was 98 days late and this delay was “still too excessive”. In regard to the reasons for the delay, the commissioner noted that the reasons provided by the applicant were not sufficient to grant condonation. The applicant was associated with and had consulted with a union regarding his dispute and he had an opportunity to request assistance from the union to clear his confusion as to which association he should approach and the timeframes in which to do so. Regarding prospects of success, the commissioner found that the applicant had no prospects of success as none of his submissions suggested that the third respondent committed an act of discrimination against him that would entitle him to relief. In regard to prejudice, the commissioner recorded that the applicant only submitted that he consulted with his union and he would be disappointed if condonation was refused. On a weighing of all the relevant factors, the commissioner concluded that the applicant had failed to show good cause and refused the condonation application.

The grounds of review

[5] In his founding affidavit, the applicant alleges a number of grounds of review including that (a) he calculated the time periods based on the assistance he received from the CCMA; (b) the commissioner was biased, and he was deprived of a fair hearing; and (c) the commissioner misconceived the nature of the enquiry and arrived at an unreasonable result.

Test for review

[6] The test for review is trite. In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[2] the court held that s 145 of the Labour Relations Act[3] is now “suffused by the constitutional standard of reasonableness”, and that the threshold test for the reasonableness of an award was: “… is the decision reached by the commissioner one that a reasonable decision-maker could not reach?...”[4]. This means that the award in question is tested against the facts before the arbitrator to ascertain if it meets the requirement of reasonableness.[5] In conducting this test, it is always necessary and important for the court to enquire into and consider the merits of the matter and the entire evidence on record in deciding what is reasonable. In Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)[6], the Court said:

‘… A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable.’

[7] In sum, applying the correct review test has a logical chronology. First, it must be considered if there is a failure or error on the part of the arbitrator. Second, and where there is such a failure or error, it must next be considered if the outcome arrived at by the arbitrator was reasonable, based on all the evidence and issues before the arbitrator, even if it may be for different reasons or on different grounds as those referred to by the arbitrator.[7] It would only be if the consideration of the evidence and issues before the arbitrator shows that the outcome arrived at by the arbitrator cannot be sustained on any grounds, and the irregularity, failure or error concerned is the only basis to sustain the outcome the arbitrator arrived at, that the review application would succeed.[8]

An evaluation of the ruling against the grounds of review

[8] In assessing the period of delay, the commissioner established that the delay was not 254 days but 98 days. It does not appear from the ruling, how the commissioner calculated this period.

[9] The referral form is dated 3 May 2022. It was served on the third respondent via email on 3 May 2022 and received by the CCMA on 3 May 2022.

[10] Accepting the applicant’s version that the dispute arose on 3 December 2021, (which the commissioner duly noted in her ruling) and accepting that the applicant had six months to refer an unfair discrimination dispute in terms of s 10 (2) of the EEA, the applicant was still within the six month period when he referred his dispute on 3 May 2022. There was no need for him to apply for condonation as his dispute was not referred late.

[11] To the extent that the Commissioner relied on the date when the application for condonation was made as being the date when the dispute was referred, this approach cannot be correct for two reasons:

(i) First, the fact that a condonation application is filed at a later stage does not change the fact of when the referral was originally filed. It has been held that a material delay in filing a condonation application that is not explained may lead to condonation being refused on that basis alone.[9] That is however an additional consideration and does not change the original period of delay in making the referral in the first

place.[10] As stated above, there was no delay and the referral ought to have been assessed on the date of 3 May 2022 when it was originally filed. The commissioner does not mention this date at all in her ruling or provide any reason as to why the date of 3 May 2022 should not be regarded as the date when the referral was made.

(ii) Second, the commissioner was duty bound to assess all relevant facts in the application before her, including considering the date when the referral was made to ascertain whether or not it was in fact late.

[12] In applying the test on review to the facts in casu, the outcome arrived at by the commissioner (refusing the condonation application) was due to her approaching her determination on incorrect facts, that is, that the referral was 98 days late when it was not late. This was a material misdirection which led to an outcome that no reasonable decision maker could have arrived at.

Conclusion

[13] A proper consideration of the facts and the applicable legal principles relating to condonation applications can only lead to the conclusion that the second respondent’s condonation ruling resorts well outside the bands of what may be considered to be a reasonable outcome. As such, the condonation ruling of the second respondent falls to be reviewed and set aside.

[14] In the premises, the following order is made:

Order

1. The applicant’s review application is granted.

2. The condonation ruling of the second respondent dated 13 September 2022 under case number GAJB8370-22 is reviewed and set aside.

3. The condonation ruling is substituted with a ruling that the applicant’s referral of his unfair discrimination dispute to the first respondent does not require an application for condonation.

4. The first respondent, the Commission for Conciliation, Mediation and Arbitration, is directed to enrol the dispute for conciliation.

5. There is no order as to costs.

P. Naidoo

Acting Judge of the Labour Court of South Africa

Appearances:

For the applicant: Mr Josiase Rudzani Thobakgale

For the respondent: No appearance

[1] Act 55 of 1998.

[2] [2007] ZACC 22; (2007) 28 ILJ 2405 (CC) (Sidumo).

[3] Act 66 of 1995, as amended.

[4] Sidumo at para 110. See also Commercial Workers Union of SA v Tao Ying Metal Industries and Others [2008] ZACC 15; (2008) 29 ILJ 2461 (CC) at para 134; Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others [2007] ZALAC 12; (2008) 29 ILJ 964 (LAC) (Fidelity Cash) at para 96.

[5] See: Duncanmec (Pty) Ltd v Gaylard NO and Others [2018] ZACC 29; (2018) 39 ILJ 2633 (CC) at para 43.

[6] [2013] ZASCA 97; (2013) 34 ILJ 2795 (SCA) at para 25. See also Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others [2013] ZALAC 28; (2014) 35 ILJ 943 (LAC) at para 14.

[7] Fidelity Cash supra at para 102.

[8] Campbell Scientific Africa (Pty) Ltd v Simmers and Others (2016) 37 ILJ 116 (LAC) at para 32; Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others (2015) 36 ILJ 1453 (LAC) at para 12.

[9] See: Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281C-F and Chasi v University of Johannesburg (J 1747 / 2018) [2022] ZALCJHB 275 (3 October 2022) at para 23.

[10] Solidarity obo Taljaard v Assmang Ltd (BlackRock Operations) and Others (JR1856/20) [2023] ZALCJHB 304 (28 February 2023) at para 36.