Thobakgale v Commission for Conciliation Mediation and Others (JR2038/22) [2024] ZALCJHB 262 (24 June 2024)

Thobakgale v Commission for Conciliation Mediation and Others (JR2038/22) [2024] ZALCJHB 262 (24 June 2024)

The commissioner materially misdirected herself by calculating the period of delay incorrectly and failing to consider the actual date of referral, which was within the statutory six-month period. There was no need for condonation, and the refusal of condonation was based on incorrect facts. The outcome reached by...

Source-derived case information.

Citation
[2024] ZALCJHB 262
Parties
Applicant: Josiase Rudzani Thobakgale; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: Commissioner Alucia Sibuyi N.O; Respondent: Element Six Production (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
24 June 2024
Case Number
JR2038/22
Procedural Posture
Review Application / Judgment on Review of Condonation Ruling
Outcome
The review application is granted. The commissioner's condonation ruling is reviewed and set aside. The applicant's referral does not require condonation and the dispute must be enrolled for conciliation.
Judges
P. Naidoo
Legal Topics
Condonation, Unfair Discrimination, Employment Equity Act, Late Referral, Review of Arbitration Award
Labour Law Civil Procedure Condonation Unfair Discrimination Employment Equity Act Late Referral Review of Arbitration Award

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Summary, issues, holding and outcome

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Parties

Josiase Rudzani Thobakgale

Applicant

Commission for Conciliation Mediation and Arbitration

Respondent

Commissioner Alucia Sibuyi N.O

Respondent

Element Six Production (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment on Review of Condonation Ruling

Legal Issues

  1. 1 Whether the applicant's referral of an unfair discrimination dispute was late and required condonation.
  2. 2 Whether the commissioner misapplied the facts and law in refusing condonation.
  3. 3 Whether the outcome of the commissioner's ruling was one that a reasonable decision-maker could reach.

Ratio Decidendi

The commissioner materially misdirected herself by calculating the period of delay incorrectly and failing to consider the actual date of referral, which was within the statutory six-month period. There was no need for condonation, and the refusal of condonation was based on incorrect facts. The outcome reached by the commissioner was not one that a reasonable decision-maker could reach, as the applicant's referral was timely and did not require condonation. The commissioner's ruling is therefore unreasonable and must be set aside.

Court Disposition

The review application is granted. The commissioner's condonation ruling is reviewed and set aside. The applicant's referral does not require condonation and the dispute must be enrolled for conciliation.

Orders

  • The applicant’s review application is granted.
  • The condonation ruling of the second respondent dated 13 September 2022 under case number GAJB8370-22 is reviewed and set aside.