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Leer v Commission for Conciliation Mediation Arbitration and Another (P306/98) [1998] ZALC 115 (19 November 1998)

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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT PORT ELIZABETH

Case Number: P306/98

In the matter between

J S Leer Applicant

and

The Commission for Conciliation, Mediation and 1^st Respondent

Arbitration

Non-Ferrous Metal Works (SA) (Pty) Ltd 2^nd Respondent

JUDGMENT

LANDMAN J

[1] Jason Stuart Leer was employed by Non-Ferrous MetalWorks (SA) (Pty) Ltd until the date of his dismissal on 31 December 1997. He was dismissed for operational requirements. When this decision was announced, certain averments were made to him regarding the state of business of his employer. Thereafter certain information, more particularly a greeting in a local newspaper, came to his attention. He formed the opinion that he had been unfairly dismissed and he referred the dispute to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) on 2 April 1998, which referral was 92 days late. He appreciated that it was late and he applied for condonation.

[2] In his application for condonation he said that on 4 March 1998 he saw an advertisement in the Port Elizabeth Express of the same date. It was then that he realised that he had been misled as to the so-called operational requirements which his employer had relied upon to dismiss him. He discussed the matter with his attorneys and he referred the matter to the CCMA within 30 days of having seen the advertisement. His application for condonation was opposed by his employer and certain information was supplied in writing. Thereafter, the application for condonation was considered by a commissioner of the CCMA. The commissioner refused condonation for the late referral. In refusing this application, the commissioner said that the employee alleged that he only realised that he had been misled by his employer when he read the advertisement in the Port Elizabeth Express of 4 March 1998. The commissioner said that this advertisement referred to was a birthday greeting which, according to her, really had nothing to do with the reasons for the employee's dismissal for operational requirements. She said in her award:

I do not find any reason ... why this birthday message to Galvaspin could have explained the employee's dismissal for operational requirements differently.

[3] She goes on to say:

This is the only reason given by the employee for the late referral of his dispute other than that he had already accepted his dismissal as fair.

[4] In my opinion that reasoning is not sustainable and not justifiable in the light of the facts which had been placed before the commissioner and more particularly the fact that the advertisement itself has no inherent value other than that it placed the employee on the trail of information which, if accepted, would go to show that he was misled as to the reason for his retrenchment and that in the circumstances not only has he an explanation for the late filing of his referral, but he has a prima facie case and a reasonable prospect of success should the matter go to trial.

[5] In the circumstances I find that the commissioner has committed a gross irregularity by not taking into account these surrounding circumstances. In the premises the decision of the second respondent not to condone the late referral to it under reference EC5921 is hereby reviewed and set aside. The CCMA is directed to hold a conciliation hearing into the applicant's alleged unfair dismissal. There will be no order for costs.

A A LANDMAN

Judge of the Labour Court

DATE OF HEARING: 19 November 1998

DATE OF JUDGMENT: 19 November 1998

For the Applicant: Adv RB Wade

Instructed by: Spilkin & Mitz Attorneys