Wentzel v South African Local Government Bargaining Council and Others (C584/2021) [2024] ZALCCT 27; (2024) 45 ILJ 2416 (LC) (18 July 2024)

Amended 26 July 2024

THE LABOUR COURT OF SOUTH AFRICA

AT CAPE TOWN

Not Reportable

Case no: C 584/2021

In the matter between:

SAMANTHA WENTZEL First Applicant and SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL First Respondent L. MARTIN (N.O.) Second Respondent CITY OF CAPE TOWN Third Respondent

Heard: 7 March 2024

Delivered: 18 July 2024

Summary: (Review of arbitration award in dismissal for incapacity owing to ill-health – Delay of seven months’ excessive – explanation not acceptable – explanation seriously lacking in detail – Condonation refused on basis of delay and lack of acceptable explanation – Obiter – if prospects of success where considered condonation would still have been refused)

JUDGMENT[1]

LAGRANGE, J

Introduction

[1] This an application to review an arbitration award in which the 2nd respondent (‘the arbitrator’) found that the applicant’s dismissal for incapacity by the search respondent (‘the City’) was substantively and procedurally fair. The review application was only launched 224 days after the expiry of the statutory six week for bringing such applications. Consequently, the applicant has applied for condonation for bringing the application so late.

Condonation application

[2] In terms of section 145(1) (a) of the Labour Relations Act, 66 of 1995 (‘the LRA’), an application for review of an arbitration award must be brought within six weeks of the applicant receiving the award. In terms of section 145(1A), the court may excuse the late filing off such an application on good cause shown.

[3] In deciding if a late review should be allowed to proceed, the court will consider several factors in deciding whether an applicant for condonation has shown good cause for the application to be allowed to proceed.

[4] The courts have repeatedly stressed that a key policy objective underlying the LRA is for labour disputes to be resolved without

delay. In Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others [2] the Constitutional Court stated that:

"Time periods in the context of labour disputes are generally essential to bring about timely resolution of the disputes. The dispute-resolution dispensation of the old Labour Relations Act was uncertain, costly, inefficient and ineffective. The new Labour Relations Act (LRA) introduced a new approach to the adjudication of labour disputes. This alternative process was intended to bring about the expeditious

resolution of labour disputes which, by their nature, require speedy resolution. Any delay in the resolution of labour disputes undermines the primary object of the LRA. It is detrimental not only to the workers who may be without a source of income pending the resolution of the dispute but, ultimately, also to an employer who may have to reinstate workers after many years."[3]

[5] It is in this statutory policy context that the court must decide whether it is in the interests of justice to excuse a delay taking into account factors such as: the extent and cause of delay; the prospects of success; the reasonableness of the explanation for the delay; the importance of the issue (in the case of appeals); the prejudice to the other party or parties; and the effect of the delay on the administration of justice and other litigants[4].

The length of the delay

[6] The applicant received the arbitration award on 22 February 2021. Accordingly, she was required to file her review application by 5 April 2021, but she only did so on 18 November 2021. The delay amounts to more than seven months and means that she took more than six times longer than the LRA requires. By any standard, this is an excessively long period, which must be fully explained.

The explanation for the delay

[7] The explanation provided by the applicant is a ‘start-stop’ one, with imprecise dates, lacking in a great deal of necessary detail and unsupported by any corroborative material. Regrettably, this style of condonation affidavit is becoming commonplace in condonation applications where delays are long. All the events in the summary narrative below took place in 2021 following her receipt of the award on 22 February 2021.

[8] It began with the applicant consulting her union attorney (unnamed) on an unspecified date, who advised her of the possibility of reviewing the award. He said he needed his ‘managers’ go-ahead to proceed.

[9] She heard nothing from him, so phoned him on an unspecified date at the end of March. He told her his managers, by which I assume he meant the union, were not willing to pursue the matter and she must obtain a private attorney’s assistance.

[10] She claims to have started looking immediately for one, but owing to being unable to even afford a consultation fee she could not appoint one. No details are provided of any of the attorneys she did approach, what the proposed fees were or why her finances were so dire, that even a consultation was unaffordable.

[11] Then (again on an unspecified date) she ‘looked around’ for attorneys who would take up the matter on a pro bono basis, again to no avail. Once again no detail of any of the legal practices she approached, or when she did so, were provided. On an unidentified date in May she claims she contacted the Legal Practice Council Office and emailed the Legal Aid SA offices in Wynberg but received ‘no positive feedback’. No evidence of the email, nor the details of whom she communicated with are provided. The applicant states she went into depression owing to the negative response and she was dealing with a court case involving abuse of her son. No details of when those court proceedings took place is provided.

[12] On an indefinite date in July she contacted an attorney, a Mr De Wet, and made an appointment with him on another unidentified date. The appointment was cancelled by him the day before as he advised her he had been in contact with someone with the Covid virus. Nonetheless they met on 3 August. He told her that the review as out of time, condonation would have to be applied for, counsel would have to argue the application and it would cost ‘more’ money. By implication it would seem the applicant came into some money. She says she advised the attorney she would try to get the money for counsel, and would get back to him.

[13] In the second week of August, the applicant was in contact with her sister who tested positive for Covid so the applicant had to quarantine. Accordingly, she could not ‘move around to get the monies together’. Why it was physically necessary to do this is not explained.

[14] On yet another unspecified date in September she contacted the attorney and asked him to proceed. No indication is given what prompted her to call him then. One might suppose she had come into possession of more funds by that stage, but she implies that she had only just given the instruction when she realised her UIF benefits were depleted so she could not pay the attorney to proceed with the matter.

[15] The applicant’s explanation ends at this point, sometime in September. No account is provided why or when she then successfully obtained Legal Aid SA’s assistance to pursue her matter. A period of at least six weeks between what happened in September and the filing of the review on 18 November is without any explanation.

[16] No corroborating affidavits from any of the attorneys she approached are provided. At the very least she ought to have obtained one from De Wet.

[17] Analysing the explanation, the gaps in it are the following:

17.1 A lack of detail about the timeline from the receipt of the award until the applicant was advised at the end of March that the union was not prepared to pursue a review. Details of when she saw the attorney and how long she waited before contacting him are not provided.

17.2 Details of her alleged attempts to instruct a private attorney between the end of March and the imprecise date in July when she first was due to meet Mr De Wet are wholly lacking.

17.3 How long it was between the original date of their appointment and the postponed meeting on 3 August is unclear. It could have been anything from under a week to nearly a month.

17.4 The timeline of events in the narrative between 3 August and the indefinite date on which she contacted De Wet again on an unspecified date in September is unknown. We are also not told why she believed she could instruct him at that point and when she subsequently realised she did not have the necessary funds.

17.5 Lastly, there is the complete void between then and her application being filed.

[18] By not providing more precise detail of virtually all the dates of events in the timeline it is difficult to meaningfully evaluate her explanation of why it took her so long to make progress. All the court is left with is a long period of time, during which the applicant claims to have occasionally done something to advance her attempt to undo the arbitration award. Moreover, no other evidence is advanced to support any part of this skimpy explanation. Properly evaluated, it amounts to a preliminary sketch of an explanation, which is incomplete. As such, it does not amount to an acceptable one.

[19] In Moila v Shai NO & others[5] the Labour Appeal Court reaffirmed the well-known principle that, in such cases, a condonation application can be dismissed without even considering the merits:

“(38) There are overwhelming precedents in this court, the Supreme Court of Appeal and the Constitutional Court for the proposition that where there is a flagrant or gross failure to comply with the rules of court condonation may be refused without considering the prospects of success. 5 In NUM v Council for Mineral Technology it was pointed out that in considering whether good cause has been shown the well-known approach adopted in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532C-D should be followed, but —

'(t)here is a further principle which is applied and that is that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without good prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused' ”

[20] On the basis of that authority, I believe the condonation application can be dismissed on grounds that the delay was excessive and lacking a reasonable and acceptable explanation.

Prospects of success

[21] Despite the reasoning above, the prospects of success will be briefly dealt with, for the sake of completeness.

[22] In Parexel International (Pty) Ltd v Chakane and Others[6], the Labour Appeal Court held that the material considerations when considering the incapacity of an employee include whether (a) an employee is prepared and able to perform their duties and (b) when they may be in a position to do so[7]. In establishing prospects of success, the applicant in a condonation for the late filing of a review application must set out the grounds on which she ought to succeed in setting aside the award if her claim can be proven.

[23] The applicant was re-employed by the city as a traffic officer in August 2016 and dismissed for incapacity on grounds of ill-health in July 2020. She had previously worked for the city in 2007 and 2008 as a traffic officer, but resigned before an incapacity enquiry into her health and absenteeism could run its course. As a traffic officer, it was a term of her employment that she was required to work shifts.

[24] The applicant suffered from depression and was booked of work for extensive periods. Within a year of her employment she had been absent from work for 99 days, of which 80 were for sick leave. An incapacity inquiry was instituted, but abandoned after her attendance improved. It is notable that her attendance improved dramatically when her paid sick leave was exhausted, but resumed when her next sick leave cycle began. Within three months of the new sick leave cycle beginning in August 2019 she had taken 35 days sick leave with medical certificates and 21 without.

[25] Owing to a difficulty she encountered with her son being abused she was temporarily given administrative work. Evidence in the arbitration showed that her erratic attendance when she occupied that position disrupted administrative workflow. She asked to work ‘day shift’ as a traffic officer, but said she could only manage to perform traffic officer duties if she took less than her prescribed dose of medication. The municipality instituted a second incapacity enquiry which eventually led to her dismissal.

[26] The applicant maintains that even though she was not able to do shift work as a traffic officer she should have been accommodated on a day shift instead. She also argued that there were administrative duties she could perform as a traffic officer which she could have done and that she had been refused alternative appointments even if it meant her demotion.

[27] It is not in dispute that efforts were made to find the applicant alternative employment in the city, but there were no posts at the same pay level she was receiving. The city claims that a clerical post at a lower salary grade was available but she did not have the necessary skills for the post. In respect of one vacant post, the head of the relevant department was unwilling to place her there because of her attendance record.

[28] On a prima facie view, it appears that, even if a special day shift slot had been created for the applicant to work as a traffic officer, she would have be jeopardised her health because she had reduce her medication to be functional in that role. Her absenteeism only improved when she was not eligible for paid leave and when she occupied an administrative position her attendance did not improve as long as paid sick leave was available. There is no reason to suppose an alternative administrative post would have resolved her poor attendance record. I do not believe in these circumstances that is possible that she might succeed in setting aside the award, which was comprehensive and addressed all issues relevant to a dismissal for incapacity, on the grounds that the outcome was one no reasonable arbitrator could have reached.

[29] Accordingly, I am not persuaded that an evaluation of the prospects of success would make any difference to deciding whether the late referral of the applicant’s review application should be condoned.

[30] The Court Is Indebted to Ms J Duba of Legal Aid South Africa, for her diligent prosecution of the applicant’s application. In light of the applicant being assisted pro bono this would not be an appropriate matter to consider an adverse cost award, apart from the other considerations which normally inform an award of costs in this court.

Order

1. The application for condonation for the late filing of the applicant’s review application is dismissed and consequently the review application is also dismissed.

2. No order is made as to costs.

R Lagrange

Judge of the Labour Court of South Africa.

Appearances:

For the Applicant: Ms J Duba of Legal Aid South Africa

For the Third Respondent: S Khoza, instructed by Adriaans Attorneys

[1] As varied on 25 July 222024 to correct typographical and grammatical errors.

[2] (2016) 37 ILJ 313 (CC); 2016 (3) BCLR 374 (CC)

[3] At paragraph 1. See also Myathaza v Johannesburg Metropolitan Bus Services (SOC) Ltd t/a Metrobus 2018 (1) SA 38 (CC); 2017 (4) BCLR 473 (CC) at para 33

[4] See Brummer v Gorfil Brothers Investments (Pty) Ltd and Others [2000] ZACC 3; 2000 (2) SA 837 (CC) at paragraph 3.

[5] (2007) 28 ILJ 1028 (LAC)

[6] (2019) 41 ILJ 2344 (LAC)

[7] At paragraph 20.