Trentyre (Pty) Ltd v National Union of Metal Workers of South Africa and Another (CA 4/2011) [2011] ZALAC 26; [2012] 5 BLLR 419 (LAC); (2012) 33 ILJ 1438 (LAC) (12 December 2011)

Republic of South Africa

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA (HELD AT CAPE TOWN)

REPORTABLE

Case Number: CA 4/2011

In the matter between:

TRENTYRE (PTY) LIMITED …..........................................................................................Petitioner

and

NATIONAL UNION OF METAL

WORKERS OF SOUTH AFRICA …..................................................................First Respondent

SIMON A WITBOOI …........................................................................................Second Respondent

CORAM: WAGLAY, DJP, HLOPHE and ZONDI, AJJA JUDGMENT DELIVERED ON MONDAY 12 DECEMBER 2011 ZONDI, AJA: [1] This is a petition for leave to appeal against the whole of the judgment of Pillay J, delivered on 7 May 2008 in which the learned judge refused an application by the petitioner for the review and setting aside of an arbitration award in favour of the second respondent ("the employee/respondent") dated 28 June 2006. The petition is brought in terms of section 166 (2) of the Labour Relations Act, 66 of 1995 read with rule 4 of the Rules that govern proceedings in this Court. [2] In terms of rule 4, a petition for leave to appeal must be delivered within 10 days of the date on which leave to appeal is refused. Leave to appeal in the present matter was dismissed on 22 May 2009. The petitioner brought this petition on 26 April 2010 and has simultaneously therewith sought leave from this Court to condone the late filing of the petition. The last day on which the petitioner should have petitioned for leave to appeal is 8 June 2009 which means that this petition was brought 10 months too late.

CORAM: WAGLAY, DJP, HLOPHE and ZONDI, AJJA

JUDGMENT DELIVERED ON MONDAY 12 DECEMBER 2011

ZONDI, AJA:

[1] This is a petition for leave to appeal against the whole of the judgment of Pillay J, delivered on 7 May 2008 in which the learned judge refused an application by the petitioner for the review and setting aside of an arbitration award in favour of the second respondent ("the employee/respondent") dated 28 June 2006. The petition is brought in terms of section 166 (2) of the Labour Relations Act, 66 of 1995 read with rule 4 of the Rules that govern proceedings in this Court.

[2] In terms of rule 4, a petition for leave to appeal must be delivered within 10 days of the date on which leave to appeal is refused. Leave to appeal in the present matter was dismissed on 22 May 2009. The petitioner brought this petition on 26 April 2010 and has simultaneously therewith sought leave from this Court to condone the late filing of the petition. The last day on which the petitioner should have petitioned for leave to appeal is 8 June 2009 which means that this petition was brought 10 months too late.

[3] It is significant to note that the rule does not make provision for the Court to condone non-compliance with its provisions. But I will assume in favour of the petitioner that this Court does have jurisdiction to condone non-compliance with the time-period stipulated in rule 4 (5) and may on good cause extend the period within which to bring a petition.

[4] In view of a number of difficulties with the petition filed on behalf of the petitioner this Court decided to give the petitioner an opportunity to argue its petition. The notice of set down clearly indicated to the parties that it was not just the petition and the application for the condonation for the late filing of the petition that would be heard when the matter was set down for argument, but that the merits of the appeal would then be argued at the same time. The petitioner was therefore required to file a full record, as if leave to appeal was granted, and the parties were called upon to file their heads of argument.

[5] Notwithstanding the above, as well as a letter from the office of Waglay DJP, the petitioner failed to file proper heads of argument.

[6] In support of its petition for leave to appeal the petitioner has filed affidavits deposed to by its human resources manager, Mr Werner Pieterse ("Pieterse") and its attorney of record Mr Wagener ("Wagener").

[7] In his affidavit Pieterse alleges that shortly after 22 May 2009, he was telephonically advised by Wagener of the refusal of the leave to appeal. He thereafter relayed the message to the petitioner's managing director who instructed him to pursue the matter which would entail petitioning for leave to appeal.

[8] He says due to an oversight on his part he did not carry out the instructions of the managing director immediately. The fact that he had not done so also did not come to his attention until he received an offer of compromise from the respondent's attorneys in October 2009. In this regard he says when he received the offer he was under an erroneous impression that he had instructed petitioner's attorneys to petition this Court for leave to appeal. He alleges that he did not respond to the respondent's offer as his instruction was to petition this Court for leave to appeal. Pieterse does not say what he did from October 2009 to the time he received a copy of the respondent's application to have the commissioner's award made an order of Court. It was only then that he realised that he had not instructed petitioner's attorneys of record to petition this Court for leave to appeal. He immediately instructed petitioner's attorneys to prepare a petition for leave to appeal and an application for condonation.

[9] In his affidavit Wagener alleges that in May 2009 he moved from the Employment Law Department to the Commercial Dispute Resolution Department within the practice in which he is employed. This he says caused some disruption in his practice for some four months as he operated without a dedicated secretary.

[10] As far as the importance of the matter to the petitioner is concerned, Pieterse alleges it was important for petitioner to seek leave to appeal because it considered the respondent's conduct very serious and it had considered dismissal appropriate to serve the deterrent purpose of punishment.

[11] The respondent is opposing the petition and has filed an answering affidavit deposed to by its attorney of record Mr Jason Whyte (Whyte). He contends that the explanation given by the petitioner for the late filing of the petition is not true.

[12] He alleges that the order refusing leave to appeal was made on 22 May 2009. He thereafter awaited the petitioner's advices (through its attorneys of record) as to how it intended to implement the original arbitration award which required the petitioner to reinstate the employee. He says when he did not hear anything from the petitioner's attorneys he wrote to them on 16 July 2009 requesting their advices regarding the implementation of the commissioner's award.

[13] Shortly thereafter he received a telephone call from Wagener indicating that the petitioner was not prepared to reinstate the employee, but that it would be prepared to honour the compensation ordered by the award, together with the full period of retrospectivity. He sought and obtained instruction from the employee regarding the petitioner's offer. He was instructed to accept it and on the basis thereof he sent a letter to Wagener proposing the basis upon which the matter would be settled. In response thereto Wagener telephoned Whyte informing him that the petitioner was happy with the proposal subject to agreement on the exact amount to be paid to the employee. Whyte performed the necessary calculations and emailed them to Wagener on 12 November 2009.

[14] Whyte alleges that Wagener did not respond to his letter of 12 November 2009. He sent letters to Wagener on 25 November 2009 and 7 December 2009 to enquire about progress. On 8 December 2009 Whyte was informed by Wagener that he had been in telephonic contact with the petitioner, who was ''unwilling to grasp the nettle" but would send a letter to them to "goad them into action". Whyte decided to send a formal letter of demand to the petitioner which he did on 9 December 2009 and on 12 April 2010 he applied to Court to have the commissioner's award made an order of Court a quo as at that stage it had become clear to him that the petitioner had no intention to settle the matter.

[15] In deciding whether or not the petitioner has shown good cause for the delay I have to consider the factual matrix presented in this matter including prospects of success on appeal, the reasons for the delay, the sufficiency of the explanation offered, the bona fides of the petitioner and any contribution by other persons or parties to the delay and the petitioner's responsibility therefor (Madinda v Minister of Safety and Security [2008] ZASCA 34; 2008 (4) SA 312 (SCA) at 316 E - F).

[16] As regards prospects of success it was submitted by Mr Wagener on behalf of the petitioner that the commissioner failed to have regard to material facts presented by the petitioner's factual witnesses regarding the symptoms of the employee's drunkness. In this regard Mr Wagener referred to the evidence of Louw who testified that: the employee was shouting in front of clients and when he ordered him to leave his work station he refused: the employee smelt of alcohol and was very aggressive; and, that the employee's eyes were bloodshot. He submitted that the evidence which the witnesses for the petitioner presented and which the commissioner ignored established that the employee had symptoms of a person under the influence of alcohol.

[17] Wagener submitted that the commissioner's finding that the employee was under the influence of alcohol, but not drunk was not logical. He submitted that the commissioner's finding was one which a reasonable decision maker could not reach and in support of his submission he referred to the judgment of the Constitutional Court in Sidumo and Another v Rustenburg Platinum Mines 2008 (2) SA 24 (CC). With regard to the delay he conceded that it was long but argued that that was compensated by the strong prospects of success on merits.

[18] The delay in this matter is very excessive and the petitioner is entirely responsible for it. The delay continues to prejudice the employee and no satisfactory explanation excusing the delay has been given.

[19] Wagener only accounts for four months' delay which he says occurred in May 2009 when he moved from one department to the other. In other words he was not fully operational at least until September 2009. This cannot constitute an acceptable excuse and in any event the delay which thereafter occurred is not fully accounted for. There is also a contradiction between the evidence of Wagener and that of Pieterse. According to Wagener, Pieterse informed him that he was waiting for the instruction from one Ria Bronkhorst with regard to the settlement of the matter, but Pieterse says he was instructed by the petitioner's managing director to take the matter further. In light of this contradiction, and, as admitted by Wagener during argument, Wagener did not have a mandate to negotiate a settlement with the employee on behalf of the petitioner. He was on a frolic of his own when he did so.

[20] Having regard to the above the respondents quite correctly, in my view, referred to the averments made in the affidavits filed by the petitioner as "blatant falsehood, alternatively gross and wilful neglect..." and a "deliberate attempt to mislead the Court". The respondent thus sought the dismissal of the condonation application and the petition.

[21] Hence, at the very least the petitioner has failed to provide an explanation that is truthful to enable this Court to understand the reasons for the delay and assess its conduct and motive with regard to the petition (see Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) 345 (A) at 353 A-B). It is in the interest of justice that cases especially those relating to employment should be finalised without delay. In my view it is not in the interest of justice to condone the late filing of the petition more especially in the absence of full, cogent and reasonable explanation for the delay.

[22] As regards the merits it cannot be said the decision which the commissioner reached is one which no reasonable commissioner could reach (see Sidumo, supra). The commissioner accepted that the employee was under the influence of alcohol but correctly found that there was no evidence that the intoxication was of such a nature as to render him incapable to perform his duties. There was no evidence that the employee had consumed alcohol before he reported for work on the day of the incident or that by reason of the consumption of intoxicating liquor, he was unable to perform tasks entrusted to him. (Tanker Services (Pty) Ltd v Magudulela [1997] 12 BLLR 1552 (LAC)). To the contrary the evidence is that he worked for one and a half hours before he was confronted by one Cloete. The employee's evidence, which was not disputed, was that he had consumed alcohol the night before. According to the commissioner the symptoms

of intoxication which the employee allegedly displayed may have resulted from alcohol he consumed the night before. The commissioner

also found that while the employee's reaction to the situation was inappropriate there is an explanation for his behaviour. According to the employee, Christo who was his immediate supervisor had accused him of not working properly and he had an argument with him.

Lockwood, his manager then came to his work station and grabbed him on his right arm and "pushed' him to his office. The commissioner thus found that the employee's outburst might be understandable in these circumstances and that a sanction of dismissal would be too harsh and unfair and disproportionate to the misconduct. The commissioner also found no evidence to suggest that the employee's conduct rendered the employment relationship between the parties intolerable.

[23] While I accept that there are a few errors and misdirections in the award, I am of the view that none of these are of such a nature that can lead to the conclusion that the decision arrived at by the commissioner is one that a reasonable decision maker could not have arrived at.

[24] In the result the petition is refused with costs.

ZONDI AJA

I agree,

WAGLAY DJP

I agree

HLOPHE AJA

APPEARANCES For the petitioner : Mr M Wagener Instructed by : Bowman Gilfillan Incorporated For the respondents : Mr J Whyte Instructed by : Cheadle Thompson Haysom Attorneys Date of Hearing : 10 November 2011 Date of Judgment : 12 December 2011

APPEARANCES

For the petitioner : Mr M Wagener

Instructed by : Bowman Gilfillan Incorporated

For the respondents : Mr J Whyte

Instructed by : Cheadle Thompson Haysom Attorneys

Date of Hearing : 10 November 2011

Date of Judgment : 12 December 2011