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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG CASE NO J3833/98

In the matter between:

MAGALIES WATER BOARD Applicant

and

LA GRANGE, R NO

First Respondent

THE COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION Second Respondent

THULARE, PIET Third Respondent

_______________________________________________________________________

JUDGMENT

________________________________________________________________________

JAMMY AJ

1. On 25 November 1997, the Applicant dismissed the Third Respondent for alleged misconduct.

2. The fairness of that dismissal was disputed and notwithstanding the fact that it was dated 26 November 1997, the form 7.11 in terms of which that dispute was referred to the Second Respondent for conciliation in terms of section 135 of the Labour Relations Act 1995 (“the Act”), was received by it only on 29 December 1997.

3. Section 191(1) of the Act requires any such referral to be made within a period of thirty days of the date of dismissal, subject to condonation by the Commission of late referral on good cause shown. The fact that the referral in question was received by the Second Respondent some four days late, is not in dispute.

4. On 27 January 1998 the Commissioner presiding at the conciliation meeting convened between the parties that day issued a Certificate of Outcome recording that the dispute remained unresolved. It is common cause that neither the Applicant, nor the Third Respondent nor the Commissioner himself, raised the issue that the referral to the Second Respondent was out of time and that no application for condonation of that late referral was made by or on behalf of the Third Respondent.

5. .On 10 February 1998 a request for arbitration in terms of section 136 of the Act was made on behalf of the Third Respondent by his Trade Union and the arbitration was held before the First Respondent in his capacity as a Commissioner of the Second Respondent on 14 July and 21 August 1998. Once again, at no stage of the arbitration hearing was the issue of the late referral of the dispute to the Second Respondent for conciliation raised by either party or by the Commissioner and as before, no application for condonation was made.

6. On 5 October 1998 the First Respondent issued his award, in terms of which the dismissal of the Third Respondent was declared to be substantively unfair and the Applicant was ordered to reinstate him retrospectively to 1 July 1998 and to pay him his remuneration for the intervening period, subject to his reporting for work within fourteen days and acknowledging receipt of a final written warning for unauthorised absence from his workplace.

7. The first of three applications now before this court, was launched by the Applicant on 2 December 1998. It sought therein the review and setting aside of the First Respondent’s arbitration award on two main grounds, firstly that neither he nor the Second Respondent had the necessary jurisdiction to conciliate and arbitrate the dispute in the face of its late referral to the Second Respondent and secondly that in any event, the award could not stand in the face of a number of alleged derelictions on the part of the First Respondent to which, as far as is necessary, I will make further reference later in this judgment.

8. The application was opposed by the Third Respondent who, in the face of the first of the grounds of review referred to, made application to the Second Respondent on 21 February 2000 for condonation of the late referral to it of his dispute with the Applicant. The application for the review of the arbitration award was, by agreement, postponed sine die pending the determination by the Second Respondent of that condonation application.

9. On 7 June 2000, the Second Respondent informed the Third Respondent’s attorneys in writing that condonation of the late referral for conciliation could not be considered as “the commission’s functions are functus officio”. What will be required, they were told, was a “consent to nullifying the process, or applying to the Labour Court to set aside the Certificate of Outcome (and all subsequent processes) in order for it to consider the condonation application”.

10. On 14 August 2000, the Third Respondent launched the second of the applications above referred to, in this instance an application to set aside the Second Respondent’s refusal to consider the application for condonation of the late referral in question. This was not opposed by the Applicant which however early in October 2000 unsuccessfully attempted to amend the relief sought by it in the first application by the addition of a prayer to the effect that the Certificate of Outcome be set aside by this court.

11. The third application, launched by the Applicant on 23 October 2000, sought, in effect, condonation of its omission to include, in its original review application, an application for the review of the Certificate of Outcome issued under the auspices of the Second Respondent and permission to raise “as a ground for review in this matter, the issue of such certificate in terms of section 135(5)”. That application was opposed by the Third Respondent on the grounds that the second review application was an adequate response thereto and should be determined before the merits of the first and third applications were considered by this court. There is agreement between the parties that this is the sequence which should be followed and I will deal first therefore with that application in which, as stated, the Third Respondent seeks the review and setting aside of the Second Respondent’s refusal to entertain his application for condonation of the late referral to it of his dispute with the Applicant.

12. This court was required to deal with an issue virtually on all fours with that now under consideration, in

Fidelity Guards Holdings (Pty) Ltd v Epstein and Others (2000) 21ILJ 2009 (LC)

The Applicant in that matter contended that the arbitrating Commissioner had lacked jurisdiction to entertain the dispute in question because the dispute had been referred for conciliation outside the time limit prescribed by the Act and the late submission had not been condoned. The court perceived “a pernicious practice” whereby an employer, faced with a late referral of a dispute with it for conciliation in terms of the Act:

“… elects not to raise any complaint, anticipating that at the conciliation hearing no question of condonation will arise. The employer fails to conciliate on the merits of the dispute, allows a certificate that the dispute remains unresolved to be issued without demur and engages in the arbitration that follows, again without raising any question about the time when the dispute was referred. Then, if unsuccessful in the arbitration, the employer approaches the Labour Court … contending that the arbitrator had no jurisdiction in the first place …. Obviously this practice which is unconscionable and borders on fraud, frustrates the purposes of the Act. The question which arises is whether it is nonetheless permissible because the jurisdiction of the arbitrator flows from a timeous referral. An Applicant who is out of time should, after all, know his rights, apply for condonation, remedy the situation and, if he fails to do so, has no one else to blame but himself. The employer and his advisers cannot be blamed for taking advantage of the Applicant’s ignorance or oversight. For the reasons that follow I find myself in respectful disagreement with those cases in which it has been said that the arbitrator’s decision is dependent upon a timeous referral. The jurisdictional fact to my mind is the section 135(5) Certificate … As I read the section the Commission is enjoined by the Act to arbitrate the dispute at the request of the employee if a Commissioner has certified that the dispute remains unresolved. It is that certification which constitutes the necessary jurisdictional fact. It confers jurisdiction. The Commissioner who issues the certificate performs an administrative act which has important consequences. Once he or she has so acted, then, to my mind, unless the administrative act is reviewed and the certificate set aside, the Commissioner is obliged to proceed with the arbitration. The section could not make this clearer. It uses the imperative form ‘must’ to describe the duty to arbitrate the dispute”.

13. An appeal against that decision to the Labour Appeal Court was dismissed in

Fidelity Guards Holdings (Pty) Ltd v Epstein NO and Others (2000) 21ILJ 2382 (LAC),

Zondo JP, at 2387, said this

“In my view the language employed by the legislator in s191 is such that, where a dispute about the fairness of a dismissal has been referred to the CCMA or a Council for Conciliation, and the Council or Commissioner has issued a certificate in terms of s191(5) stating that such dispute remains unresolved or where a period of thirty days has lapsed since the Council or the CCMA received the referral for conciliation and the dispute remains unresolved, the Council or the CCMA, as the case may be, has jurisdiction to arbitrate the dispute. That the dispute may have been referred to the CCMA or Council for Conciliation outside the statutory period of thirty days and no application for condonation was made or one was made but no decision on it was made does not affect the jurisdiction to arbitrate as long as the Certificate of Outcome has not been set aside. It is the setting aside of the Certificate of Outcome that would render the CCMA or the Council to be without jurisdiction to arbitrate”.

14. The most recent pronouncement on the issue is to be found in

Transport & General Workers Union and Others v Coin Security Group (Pty) Ltd (2001) 22ILJ 968(LC)

in which Basson J at 990 said the following:

“Section 157(4)(b) of the LRA declares that the Certificate of Outcome of dispute constitutes ‘sufficient proof’ of the fact that an attempt has been made to resolve the dispute through conciliation. In casu such certificate had indeed been issued in terms of s136(1)(a) of the LRA. Further the Respondent has not sought an order to review and set aside the Certificate of Outcome in casu on the basis of an alleged defective referral. The Respondent also did not raise the issue of a defective referral at the conciliation proceedings before the CCMA. The Respondent therefore failed to raise its objections timeously. It is clear that such certificate remains valid until it is set aside by a competent court. It is therefore not open to attack the validity of the conciliation proceedings at the stage of the hearing of the dismissal dispute in the Labour Court.”

15. The Appeal Court, in Fidelity Guards, left open the issue of the stage at which any challenge to the validity of the Certificate of Outcome must be mounted but did not expressly disassociate itself with the following remarks of Pillemer AJ in the court a quo on that issue

“The certificate has a whole range of consequences under various sections of the Act. If its validity is to be challenged, that challenge must itself be timeous i.e. within a reasonable time, which, given the nature of the process and the consequences of the issue of the certificate of non-resolution will inevitably be a short period and take place before further steps occur relying upon its issue. This is particularly so if the further steps take place with full participation and without objection”.

16. That is precisely what occurred in the present case. The attack upon the validity of the Certificate of Outcome of 27 January 1998 was raised by the Applicant for the first time in its first application for the review of the Third Respondent’s award.

17. In the light of this convoluted set of background facts and the authorities to which I have referred, it seems to me that the application with which I am now dealing, namely that of the Third Respondent for the review of the Second Respondent’s refusal to consider his application for condonation of the late filing of his referral, serves no purpose. The passivity of the Applicant in the ensuing process of dispute resolution which culminated in the issue of the First Respondent’s award, renders that application unnecessary. Its subsequent challenge to the arbitrator’s jurisdiction, premised upon the technical invalidity of the Certificate of Outcome, is precisely the type of practice classified by Pillemer AJ in the Fidelity Guards case in this court, is unconscionable, bordering on fraud and frustrating the purposes of the Act.

18. For all of these reasons, I can find no basis to interfere with the Second Respondent’s rejection of the Third Respondent’s application to it for condonation or with its express view that it was “functus officio” and the Third Respondent’s application to this court for the review of that decision is therefore dismissed. It will follow that the First Respondent’s jurisdiction to arbitrate the dispute on the basis of that certificate, is not open to question and that if his award is reviewable, that can only be upon the second of the grounds submitted in the Applicant’s first review application, that is to say, inter alia, that his determination was irrational and not justifiable in relation to the reasons given therefor. I accordingly turn now to that issue.

19. The Third Respondent was charged with, and was found guilty of, contravening sections 7 and 32 of the Applicant’s Disciplinary Code and Procedure, the first relating to “unauthorised absence from workstation whilst on duty” and the second to “intimidation of other employees”. The Code incorporate guidelines relating to offences and maximum penalties, in terms of which the first of the offences referred to is classified as “serious misconduct” and is normally proceeded by a written warning, followed by a final written warning before a disciplinary hearing is conducted, whilst the second is classified as a “dismissible offence” warranting an immediate disciplinary enquiry.

20. The fact that the Third Respondent was absent from his workplace without permission, authorisation or proper explanation from 17 November 1997 to 24 November 1997 was not disputed, nor was it in issue that when he returned to work on 24 November 1997 he made no attempt to explain his absence and that it was only when he was confronted with that alleged misconduct that he contended that he was ill and undertook to produce a doctor’s certificate, which however, he failed to do.

21. At the time of his dismissal, the Third Respondent had received a number of final written warnings relating to different aspects of the Applicant’s disciplinary code. These, the most recent of which was dated 27 August 1997, (the Applicant having been dismissed on 25 November 1997) related variously to charges of insubordination, abandoning his job and wilful damage to property. He also carried several warnings relating to inadequate work performance, work attendance and insubordination.

22. In the course of his award, the First Respondent comprehensively examined the evidence presented by both sides in the arbitration. He concluded that the Third Respondent’s account of his absence was unconvincing and that it “seems more plausible that he did not obtain or attempt to acquire authorisation for leaving his workstation”. He was, it was found, aware of the necessity for him to have done so.

23. The First Respondent then proceeded to consider, with commendably careful analysis, whether breach of the rule in the instance in question justified the Third Respondent’s dismissal. That analysis extends over three pages and twelve paragraphs of the award. He concluded that in all the circumstances of the matter as reviewed by him on the basis of the evidence before him, the Third Respondent’s misconduct did not constitute a dismissible offence and that he was compelled in the circumstances to order reinstatement.

24. The graveman of the Applicant’s complaint in that regard is the First Respondent’s finding that, although not in his opinion appropriate in this matter, breach of the disciplinary rule in question could, in a proper case, justify fair dismissal. He found moreover that the final written warning of 27 August 1997 was valid and binding and was issued in connection with their related offence. Whilst the Third Respondent’s misconduct in the circumstances was “serious cause for concern” and indicated difficulty “in accepting authority of management in the workplace” the First Respondent, inexplicably in the view of the Applicant, nevertheless determined his dismissal to be unfair.

25. The First Respondent’s finding that on the evidence before him, the Third Respondent had in fact been ill as alleged by him was vigorously challenged in the pleadings and in the course of argument. But the fact that remains is that there is nothing, in his analysis and reasoning in relation to the evidential material before him, that supports the contention that in reaching his conclusions, he did not properly apply his mind to that evidence or that, specifically in relation to the eventual supporting evidence of the doctor’s certificate, and the mitigating factors diminishing, in the First Respondent’s view, “the seriousness of the infraction”, his conclusion were not justifiable. Justifiability does not mean that another forum or another adjudicator might not, on that evidence, have reached a different conclusion. That is the applicable principle in appeal, as opposed to review, proceedings.

26. It is apparent from his overall approach to the matter, that the First Respondent was sensitive to and adopted the principle enunciated in

J D Group v De Beer (1996) 17ILJ 1103(LAC)

in which the court cited with approval, the following principle:

“… the purpose of our law is not to provide for the punishment of wrongdoers … but rather to correct behaviour and thereby, whenever reasonably possible, ensure the continuation of the employment relationship”.

That view was endorsed by Cheadle et al in Current Labour Law, JUTA (1993) where, at page 10, the following is stated

“… although dismissal may be an appropriate disciplinary measure in certain circumstances, the aim of a disciplinary system in the workplace should be to correct the behaviour of employees rather than simply to dismiss them”.

27. That this was the approach adopted and conclusion reached by the First Respondent is evidenced in these comments in paragraph 31 of his award

“In this sense I would view the pattern of his behaviour as that which would be equivalent to someone who has disregarded procedures and/or instructions to the point where a final warning is in order to the effect that a failure to obey a further rule or instruction could result in dismissal, coupled with a period of suspension without pay. Clearly, if Mr Thulare wishes to remain employed by the Board for any length of time and to avoid further serious disciplinary action he will need to alter his approach towards managerial authority and compliance with workplace procedures”.

28. In the result, the Third Respondent was reinstated with partial, and not full, retrospective effect and with a final written warning relating to his unauthorised absence and his disregard of rules and regulations. There is in my view nothing in the substance and/or the conclusions reached in the First Respondent’s award to that effect which would render it vulnerable or open to challenge in terms of section 145 of the Act.

29. For these reasons I make the following order:

    1. The application for the review and setting aside of the First Respondent’s award in the Second Respondent’s case number GA23280 dated 14 October 1998, is dismissed.

    2. The Applicant is ordered to pay the Third Respondent’s costs.

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B M JAMMY

Acting Judge of the Labour Court

21 November 2001

Representation:

For the Applicant:

Advocate L Nel, instructed by Snyman Van Der Heever Heyns

For the Respondent

:

Advocate B Slon, instructed by Cheadle Thompson & Haysom.

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