Van Nooien v City of Cape Town and Others (C116/2021) [2024] ZALCCT 47 (11 October 2024)

THE LABOUR COURT OF SOUTH AFRICA

AT CAPE TOWN

Of interest to other judges

Case no: C 116/2021

In the matter between:

JEANO VAN NOOIEN Applicant and CITY OF CAPE TOWN First Respondent SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL Second Respondent ORLANDO MOSES (N.O.) Third Respondent

Heard: 9 October 2024

Delivered:11 October 2024

Summary: (Condonation -late referral of unfair dismissal to CCMA – Applicant waiting outcome of internal appeal and relying on union – Arbitrator ought to at least have called for further submissions on certain issues before making ruling – Ruling reviewed and side.)

JUDGMENT

LAGRANGE, J

Introduction

[1] This is an application to review a condonation ruling for the late referral of an unfair dismissal dispute to arbitration.

[2] The applicant was dismissed on 1 July 2020 on various grounds of misconduct, all of which appear to relate working unauthorised shifts and claiming allowances for such unauthorised work.

[3] He should have referred his unfair dismissal dispute to the bargaining council within 30 days of his dismissal, but only did so on 21 January 2021. Consequently, his referral was 174 days, or approximately six months, late.

[4] The applicant had lodged an internal appeal against his dismissal and on 8 October 2020 he was advised that his appeal had failed. He claimed he contacted his union the day after he received the appeal outcome. On his CCMA referral and condonation application forms he stated that 9 October was the date of his dismissal. In seeking condonation for the late referral of the dispute he claimed he was 74 days late, which was based on his assumption that his dismissal only took place when his internal appeal was finalised.

[5] His explanation for the period of delay from 8 October 2020, as set out in the pro-forma condonation application form provided by the second respondent (‘the bargaining council’), reads:

“After I send the e-mail and found the shop steward I believe that my referral was done by Com. Qunya since my shop steward was on leave in the Eastern Cape. Only to find out that I persisted to see the proof such proof has not being forthcoming. Therefore I decided to take initiative to refer the dispute in case there wasn't one declared.”

(sic)

[6] The condonation form also required him to state why he believed he had a good case, in answer to which he simply stated that he did not commit the misconduct. Another paragraph in the form invited the applicant to provide “any other information” that would “support” his application, to which he responded by saying that:

“The booking that at times that I’m charged for was according to my Sapportal work schedule. The inconsistency application of the rule by the employer.”

The arbitrator’s ruling

[1] The arbitrator dismissed the condonation application. The nub of his reasoning appears at paragraphs 14 and 15 of his ruling and is summarised below.

[2] The arbitrator noted that the delay of 174 days was excessive and, by the time the applicant contacted his union on 9 October 2020 He was already 68 days late. Although he contacted the union, He gave no indication of any other steps he had taken to actively approach the bargaining council on a matter of personal interest to himself. More particularly, during the following 108 days there was nothing to show that he took proactive steps himself to bring the matter to the attention of the bargaining council. He concluded that the explanation for the late referral was unreasonable, which disinclined him to grant condonation. Nonetheless, he also considered the applicant’s prospects of success, noting that all that was necessary was for an applicant to allege facts which, if ultimately proven, would entitle him to succeed. He found the applicant's bare denial that he was guilty did not meet the requirements of setting out facts on which he might be entitled to relief. The arbitrator also noted that the respondent had set out the grounds of dismissal. It appears that the arbitrator contrasted the detail provided by the employer with the lack of detail provided by the applicant on the prospects of success. In The upshot, the arbitrator decided that the prospects of success were also poor.

[3] In relation to the prospects of success, the arbitrator noted that the applicant merely baldly denied he was guilty of the charges against him. He failed to advance any factual allegations why his dismissal was unfair. By contrast, the respondent made submissions that he had been found guilty of gross dishonesty for claiming allowances he was not entitled to and that he failed to comply with reasonable and lawful instructions relating to changing the shifts he was supposed to work and working shifts without being authorised to do so on numerous occasions. Taking both parties representations on the prospects of success into account, he concluded that to the applicant's prospects of success were poor.

Grounds of review

[4] The grounds of review were set out in somewhat sweeping terms in the applicants founding affidavit. He identifies the following as the reviewable failures of the aribitrator:

[5] Failing to consider the reasons for the lateness of referring the dispute

[6] Ignoring the state of disaster prevailing at the time.

[7] Failing to ask the applicant for further evidence or setting the condonation application for an oral hearing.

[8] In his founding affidavit in the review application, the applicant also set out additional factual allegations to expand on his explanation for the delay.

Evaluation

[9] It is trite that in a review the court can only fault the reasoning of an arbitrator on the evidence that was before them. Their reasoning cannot be validly criticized in the light of additional evidence they were not asked to consider. The arbitrator was confined to what was in the founding and answering affidavits before him and the court cannot evaluate his ruling in the light of additional factual averments raised in the applicant’s founding affidavit in the review, which should have been in the original condonation application.

[10] Nonetheless, it is apparent that the arbitrator appeared to have taken a somewhat cursory look at what the applicant’s

condonation application revealed. It is noteworthy that the arbitrator did not comment on the applicant’s identification of his date of dismissal as 8 August 2020, and the fact that he clearly believed he only had to explain any delay arising after that. He also did not have regard to the somewhat cryptically expressed additional motivation the applicant provided in support of his application, cited in paragraph [6] above. A glance at that paragraph clearly reveals that the applicant was attempting to elaborate on the merits of his unfair dismissal claim.

[11] In my view, the respondent correctly submits that the arbitrator’s ruling was justifiable on the affidavits before him. However, I think the arbitrator ought to have realised that applicant laboured under a significant misapprehension about how late his referral actually was owing to a mistaken belief that his date of dismissal was more than three months after the true date. This might have affected his view that he had said enough to justify a perceived delay of 74 days. While the bargaining council form does advise an applicant to elaborate on their answers in additional pages if there is insufficient space, nothing indicates the degree of detail required in explaining the reason for the delay. This is an important issue for lay persons to understand. In any event, it is apparent, the applicant did not appreciate the need to provide more detail in explaining the 74-day delay.

[12] Secondly, he clearly did have more to say about his prospects of success, other than to assert his innocence, but he had expressed this poorly in the paragraph mentioned. There is no reason to suppose he ought to have realised he needed to set out the facts he relied on to underpin his claim to have been innocent, or why he might have thought the employer acted inconsistently. The arbitrator had a discretion whether to call for further submissions or convene an oral hearing. In light of these factors and given the fact that the applicant was not being assisted by his union, the arbitrator should at least have called on the applicant to provide a more detailed explanation for apparently not doing anything after 9 October until he referred his dispute in late January 2021 and to provide more concrete detail on why he believed he was innocent. In these circumstances, I am not satisfied that papers alone were sufficient to afford the applicant a fair hearing of his application.

Order

1. The condonation ruling of the Third Respondent issued on 11 February 2021 under case number WCM 012104 is reviewed and set aside.

2. The Applicant’s condonation application is remitted back to the Second Respondent for determination by an arbitrator other than the Third Respondent, which must be enrolled for an oral hearing within 30 days of receipt of this judgement.

3. No order is made as to costs.

R Lagrange

Judge of the Labour Court of South Africa.

Representatives

For the Applicant: M Botha instructed by Mc Gregor Erasmus

For the Respondent: M N Jassiem