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[2010] ZALC 330
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National Union of Mineworkers and Another v Eskom Holdings Ltd and Others (C 814/2008) [2010] ZALC 330 (9 June 2010)
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RTF formatIN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
On 9 June 2010
Before Her Ladyship Ms Acting Justice A M de Swardt
CASE NO: C 814/2008
In the matter between:
NATIONAL UNION OF MINEWORKERS ...................................................First Applicant
NASIBA KADER ..................................................................................Second Applicant
And
ESKOM HOLDINGS LTD ......................................................................First Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION ....................................................Second Respondent
BRIAN WILLIAMS N O .......................................................................Third Respondent
JUDGMENT
DE SWARDT, A J:
1. The second applicant ('Kader') commenced employment with first respondent ('Eskom') in October 1998 when she started work at Koeberg Nuclear Power Station ('Koeberg') as a trainee technician in the Radiation Protection Group. She was dismissed by reason of incapacity on 16 July 2007. Pursuant to such dismissal she preferred an unfair dismissal dispute to the second respondent ('the CCMA') together with her trade union, the first applicant ('NUM'). Such dispute was subsequently arbitrated by the second respondent, Commissioner Brian Williams ('the Commissioner').
2. The arbitration award was dated 22 September 2008 and was received at the offices of NUM on 25 September 2008. The applicants' application for review in this Court, was accordingly due to have been launched by 6 November 2008. In the event, the application was only launched on 23 December 2008, almost 7 weeks late.
3. Unfortunately, that was not the only occasion upon which the applicants failed to adhere to prescribed time limits. The applicants' supplementary affidavit in terms of Rule 7A(8) was also filed out of time.
4. The applicants applied for condonation of both of the aforesaid failures to abide by the prescribed time limits. The condonation applications were opposed by Eskom.
5. Section 145(1A) of the Labour Relations Act No 66 of 1995 ('the Act') provides that this Court may condone the late filing of applications in terms of section 145 'on good cause shown '. As is evident from Rule 12(1) the Court also has the power to condone non-compliance with its Rules 'on good cause shown' unless it is precluded from doing so by Statute.
6. In the well known case of Melane y Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532C-F Holmes JA expressed himself as follows in regard to the requirement that 'sufficient cause' - which is for all practical purposes equivalent to 'good cause' - be shown:
'In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated : they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for along delay. And the respondent's interest in finality must not be overlooked.'
7. The Labour Appeal Court per Myburgh JP in NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) confirmed that the approach in Melanefs case, supra, falls to be applied in this Court. Myburgh JP added to the aforegoing extract from Melands case (at 211H-212B):
'There 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 prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused, (cf Chetty v Law Society Transvaal 1985 (2) SA 756 (A) at 765A-C; National Union of Mineworkers & Others v Western Holdings Gold Mine (1994) 15 ILJ 610 (LAC) at 613E). The courts have traditionally demonstrated their reluctance to penalise a litigant on account of the conduct of his representative but have emphasised that there is a limit beyond which a litigant cannot escape the results of his representative's lack of diligence or the insufficiency of the explanation tendered (Salojee and Another NNO v Minister of Community Development 1965(2) SA 135 (A) at 140H-141D; Buthelezi & Others v Eclipse Foundries Ltd (1997) 18 ILJ 633 (A) at 638I-639A). ... the Act accords emphasis to the speedy resolution of ... disputes. Accordingly, there is no justification for deviating from the Melaneprinciples.'
8. The applicants' application for condonation of their failure to launch the review proceedings timeously is based on the following allegations which are contained in the founding affidavit deposed to by Mr S D Phaladi ('Phaladi'), a paralegal officer in the employ of NUM who had represented it and Kader in the arbitration proceedings, as well as in the proceedings before this Court.
8.1. The award was received on 25 September 2008 and it took Phaladi until 6 October 2008, to peruse and to consider whether or not it was reviewable;
8.2. Phaladi wrote to the head office of NUM on 6 October 2008 to request authorisation for the matter to be outsourced to attorneys for purposes of preparing the review application;
8.3. Phaladi received authorisation telephonically on 22 October 2008, more than two weeks after his request;
8.4. Phaladi thereupon sent an e-mail message to the applicants' attorney of record, Ms T Ralehoko ('Ralehoko') of Cheadle Thompson & Haysom. Ralehoko only returned from leave the next day, 23 October 2008 (a Thursday) and was thereafter engaged in arbitration proceedings during the week starting Monday 27 October 2008. Ralehoko requested her colleague Mr Jason Whyte ('Whyte') to deal with the matter;
8.5. Whyte considered the award and furnished Phaladi with an opinion. (The date upon which such opinion was furnished does not appear from the founding affidavit, but it became clear from the replying affidavit that such opinion was in fact furnished on 3 December 2008.);
8.6. Phaladi considered Whyte's opinion and 'realised that the grounds on which the award was reviewable were not apparent from the award and that there was a need to schedule a consultation with Whyte to discuss evidence that had been led at the arbitration which had not been recorded by the arbitrator in his award.';
8.7. Phaladi attended a consultation with Whyte on 4 November 2008, but did not take a copy of the bundle of documents which had been placed before the Commissioner, with him. The consultation accordingly had to be rescheduled;
8.8. Whyte was then engaged in another matter and Ralehoko took over. Phaladi consulted with Ralehoko on 20 November 2008 and furnished her with the bundle of documents aforesaid;
8.9. After consideration of the notes which Phaladi had taken at the arbitration, the bundle of documents and some notes which Kader had made about her testimony at the arbitration, as well as a number of
telephonic discussions between Phaladi and Ralehoko, it was resolved that a review application would be prepared.
9. It is readily evident from the aforegoing summary of facts that the explanation provided by Phaladi as to why the review application was only filed on 23 December 2008, more than 6 weeks late, is deficient. So, for example:
9.1. It is not clear why it took from 25 September to 6 October to consider the award. Even if allowance is made for the fact that the award runs to some 47 pages, a period of 6 working days appears at first blush to be excessive, particularly in view of the fact that Phaladi was totally au fait with the case, having represented both NUM and Kader at the hearing. Phaladi is ostensibly an experienced paralegal officer of NUM who conducts litigation on the union's behalf and on behalf of its members;
9.2. Phaladi's correspondence to the head office of NUM requesting authorisation to appoint attorneys has not been annexed. It is accordingly not known whether or not the written communication was sent by post, by e-mail or by fax. Phaladi has also not disclosed when the head office received his written request or whether he had pointed out the time constraints;
9.3. A period of more than 2 weeks passed before Phaladi obtained telephonic authorisation for the appointment of attorneys. The founding affidavit is silent as to what happened during that time, if anything at all. There is no indication that Phaladi attempted to impress the urgency of the matter on the person(s) at head office dealing with the matter, or that he took any steps to expedite the matter during the period 6 to 22 October 2008;
9.4. By 22 October 2008 when Phaladi received the aforesaid authorisation, the applicants only had approximately two weeks within which the review application had to be launched. There is no indication that either Phaladi or the applicants' attorneys of record treated the matter with the urgency that it required, bearing in mind that the due date for the launching of the review application was 6 November 2008. The founding affidavit is silent as to what steps, if any, were taken to advance the matter during the period 22 October 2008 to 4 November 2008 when Phaladi consulted with Whyte;
9.5. Phaladi appears to have adopted a rather casual and cavalier attitude towards the matter. When he consulted with Whyte on 4 November 2008, there were only two days left within which the application had to be launched, but he attended the consultation without the relevant bundle of documents. There is no indication that either he or Whyte treated the application for review with the required degree of urgency;
9.6. It must further be noted that Phaladi disingenuously attempted to create the impression in his founding affidavit that Whyte's opinion had been received prior to the consultation on 4 November 2008. In paragraph 13 of the founding affidavit he stated that Ralehoko requested Whyte to deal with the matter because she was engaged in other arbitration proceedings during the week starting 27 October 2008. In the immediately following paragraph (14) he states that 'Whyte considered the award and furnished me with an opinion.' In paragraph 15, he states that he considered the opinion and, despite his extensive perusal of the award over a period of 6 working days, realised that the grounds of review 'were not apparent from the award ' and that there was accordingly 'a need to schedule a consultation with Whyte to discuss evidence that had been led at the arbitration which had not been recorded by the arbitrator in his award.' In the following paragraph (16) he states that a consultation was scheduled with Whyte on 4 November 2008. The sequence of events so described are clearly intended to show that the opinion was received prior to the consultation. Once Eskom had pointed out in its answering affidavit that the date when the opinion was received had not been disclosed, Phaladi stated in reply that the opinion had been dated 3 December 2008, i.e. approximately a month after the due date for the launching of the application for review. Phaladi stated that the omission of the date in the founding affidavit was due to 'an oversight' on his part. Given the description of the sequence of events in the founding papers, his statement in this regard rings hollow;
9.7. Phaladi has not taken this Court into his confidence as to what occurred during the period 4 to 20 November 2008. The only reasonable inference that can be drawn from this omission, is that nothing was done during this time to advance the application. If any steps had been taken to advance the application, he surely would have said so. There is also no explanation as to why neither Ralehoko nor Whyte attempted to deal with the application prior to 20 November 2008;
9.8. At the consultation on 20 November 2008 the bundle of documents was handed to Ralehoko. According to the founding affidavit 'it was resolved that a review application should be filed' once the notes he had made at the arbitration, Kader's notes of her evidence and the bundle of documents were considered and after he and Ralehoko had had telephonic discussions. Such resolution must accordingly have been taken some time on 20 November 2008 after the consultation, or at some stage thereafter. There is, however, not a jot or tittle of information as to why it took more than a month after the consultation on 20 November 2008 to launch the review proceedings. The papers were only issued in this Court on 23 December 2008.
10. When the deficiencies in the applicants' application for condonation were alluded to in the answering papers, the applicants attempted to remedy the situation by providing additional information in reply. It is well established that an applicant must make out his/her case in the founding papers and will not be permitted to adduce supporting facts in a replying affidavit except in exceptional circumstances. Although the court has a discretion to permit the filing of additional affidavits, an applicant must make out at least a prima facie case in the founding affidavit and a totally defective application cannot be rectified in reply (see Poseidon Ships Agencies v African Coaling & Another 1980 (1) SA 313 (D&C) at 315D-316A and Ferreira v Premier free State & Others 2000 (1) SA 241 (O) at 254B-C ).
11. The replying affidavit deposed to by Phaladi, in any event, does not assist the applicants for a number of reasons. Reference has been made above to the fact that it was clear from the founding affidavit that the opinion furnished by Whyte predated the consultation on 4 November 2008. This was contradicted in the replying affidavit when it transpired that the opinion was dated 3 December 2008. As also appears above, Phaladi expressly stated that 'it was resolved that a review application should be filed ' at some stage after the consultation on 20 November 2008. In paragraph 56 of the replying affidavit, Phaladi denied that such decision was taken on 20 November 2008, stated that it was taken after that date, but still failed to take this Court into his confidence as to when such decision was taken. The high water mark of the explanation as to why the application was only launched more than a month after the consultation on 20 November 2008 is that December ' was a busy month for Ralehoko in that she had a number of disciplinary hearings to attend to and that she had to give proper and adequate consideration of (sic) the merits of launching the review application.' There is no explanation as to why Whyte, or another member of the firm of attorneys, could not have attended to the matter.
12. Suffice it to say that the 'explanation' for the applicants' failure to launch the review application within the time period prescribed by section 145 of the Act is incomplete, unconvincing and inadequate. In these circumstances and in light of the decision by the Labour Appeal Court in NUM v Council for Mineral Technology, supra, the applicants' prospects of success are immaterial and the application for review ought to be dismissed.
13. Even if regard is had to the merits of Kader's case, it does not appear to me that her prospects of success are such that she ought to be granted condonation. The events leading to her dismissal are set out below.
14. Kader holds a BSc degree with Biochemistry and Microbiology as majors, a BSc-Honours degree in Biochemistry, a Diploma in Medical Technology and a BA-degree (Psychology). She joined Eskom as a trainee technician in the Radiation Protection Group at Koeberg in October 1998. It was anticipated that she would first qualify as a Radiation Protection Monitor, then as a Radiation Protection Technician and that she would eventually become a physicist.
15. Koeberg, by reason of the fact that it is a nuclear power plant, is subject to stringent Atomic Energy Protocols and Nuclear Regulations. Persons such as Kader who are employed as trainee technicians or as Radiation Protection Technicians must comply with the regulations of the National Nuclear Regulator of South Africa and, in particular, are required to complete what is known as the 'KSH-010 Standard'. The KSH-010 standard, as it applies to Radiation Protection Technicians, requires satisfactory completion of 15 selfstudy theory modules (also referred to as Plato Modules) and certain specific 'on the job training'.
16. An employee cannot properly assume the functions of a Radiation Protection Technician until such time as he or she has complied with KSH-010. More importantly though, the National Nuclear Regulator requires that this standard be complied with, failing which Eskom could have its atomic licence revoked.
17. Training of the Trainee Technicians is undertaken in-house and typically approximately 10% of a normal work week is devoted to training. According to the evidence, the Radiation Protection Monitor training is uncomplicated. The position requires a matric certificate as minimum qualification and the training can easily be completed in a period of approximately 5 to 6 months. The Radiation Protection training (which includes Radiation Protection Monitor training) requires approximately 2 years to complete on a part-time basis.
18. By November 1999, just more than a year after Kader had joined Koeberg, she had failed to submit any reports in respect of her training or to write the Radiation Protection Monitor's examination. She was given a deadline to complete the examination by January 2000. She eventually sat the examination on 25 January 2000, but failed. Kader subsequently completed the Radiation Protection Monitor's course some time later during 2000.
19. In 2001 Kader completed only 1 out of the 15 Plato Theory Modules towards meeting the KSH-010 standard. By August 2004, more than 5 years after her appointment, she had failed to progress with her training to qualify as Radiation Protection Technician and on 8 August 2004 she was informed that she was required to complete the training by 31 December 2005, some 17 months later.
20. Kader failed to comply with the aforesaid deadline and, at her request, it was extended to the end of March 2006. At that stage, Mr Tertius Karsten ('Karsten'), a senior physicist at Koeberg, conducted a performance appraisal of Kader in a formal meeting. It was pointed out to Kader that her failure to meet the KSH-010 standard was regarded as a performance issue, because it was part of her performance contract. Karsten also indicated to her that if she failed to meet the requirements, corrective actions could follow, which could include the termination of her services. Kader was further instructed to submit a training plan by 1 June 2006, which she failed to do.
21. On 13 June 2006 Kader was informed in writing that she would be provided with a final opportunity to meet her performance requirements. She would be placed on a Performance Enhancement Contract for the period July to September 2006 in terms whereof she would, inter alia, be required to attend a monthly performance review session. The contract was aimed at enabling Kader to complete 9 out of the 15 examinations which were required to meet the KH-010 standard and 15 out of 30 radiation protection certificates. She was informed that if she failed to satisfy the requirements of the contract, particularly those relating to her training requirements, corrective measures inclusive of the termination of her services would be initiated.
22. On 28 June 2006 Kader objected to being placed on the Performance Enhancement Contract, inasmuch as the rating she had obtained in her performance appraisal was in excess of that set for such contract. It was then decided that Kader would be issued with a letter which would refer to a contract to measure her progress on training, certain milestones and an objective measurement as to how she was progressing. The contract provided that Kader would spend 35% of her time on theoretical training, 35% on practical training and the remaining 30% of her time on routine work. She would be required to pass certain examinations and to complete the 'on the job' training assignments to performance level 3. The total time which Kader would spend on training was subsequently increased from 70% to 80%.
23. Kader completed some of the 'on the job' training but none of the theoretical training examinations. By 30 September 2006 she achieved a performance rating of 1.27 out of 5 which is considered to be extremely poor. Eskom decided to place her on a Performance Enhancement Programme.
24. On 27 November 2006 Kader and her representative approached Mr Mabaso ('Mabaso'), the Nuclear Services Manager, in order to discuss her concerns around her training. She maintained that she could not be placed on a Performance Enhancement Programme until such time as she had completed her training and argued that such programme did not apply to trainees. In an effort to assist Kader, Mabaso agreed that Kader would compile her own training programme and set her own deadlines in order to complete her training.
25. By 31 January 2007 Kader had failed to provide a training programme in terms of the aforesaid agreement she had reached with Mabaso. She finally e-mailed a copy of her proposed programme on 9 February 2007. The deadline set in terms of her proposal was 30 June 2007, which she considered to be realistic.
26. On 2 April 2007 Kader attended another performance appraisal meeting with Karsten and Ms Ata ('Ata'), the Radiation Protection Manager, who was her direct superior. Kader had failed to complete 11 out of the 15 Plato modules and a significant portion of her 'on the job' training. Kader raised a number of excuses in an attempt to justify her failure to perform, including the alleged non-availability of coaches. In an attempt to address this issue, it was agreed that Kader would arrange training with coaches in advance and that she would be required to enter into written agreements with the coaches. The deadline for Kader to achieve her targets was extended until mid-July 2007.
27. By letter dated 19 April 2007 Ata informed Kader that a failure to complete her training could result in the possible termination of her services.
28. On 10 May 2007 Karsten engaged Kader in formal performance appraisal discussions. By the next day, 11 May 2007, it had become clear that Kader had not made any significant progress in achieving her own deadlines and Karsten addressed an e-mail to her pointing out that this was her last opportunity to complete her training.
29. On 12 July 2007 Mabaso, Karsten, Kader and her representative met in order to assess the extent to which she had fulfilled the requirements which had been agreed to at the meeting in April 2007. By this time, Kader had completed only 4 out of the 15 Plato theory modules. Kader's attention was drawn to the letter by Ata which pointed out the consequences of her failure to achieve the desired standards. Kader admitted that the completion of the Plato modules had been a long standing requirement and that the course work depended on self-study, as opposed to input or support by others.
30. On 16 July 2007 Kader was informed in writing of the termination of her services.
31. Mr Arendse submitted that Eskom had not followed its own protocols in dismissing Kader and, in particular that Eskom had not followed its own Performance Enhancement Programme. So, for example, Eskom had not notified Kader that the meeting on 12 July 2007 was to be a final review meeting; the Performance Enhancement Programme would only have expired at the end of that month and it was accordingly inappropriate to hold a final review meeting on 12 July; Eskom was required, in terms of the Performance Enhancement Programme, to consider redeploying or transferring Kader, or to demote her with her consent, but Eskom apparently failed to do so and opted for termination of her services without considering alternatives.
32. Mr Arendse conceded that Kader had been afforded opportunities to achieve the goals that had been set, but submitted that her failures had been condoned. Inasmuch as Eskom had failed to apply its protocols in terms of the Performance Enhancement Programme, Mr Arendse submitted that Kader's dismissal was procedurally unfair and that this Court should set aside the arbitration award and should order Kader's reinstatement so that Eskom could apply the protocols prescribed by the Performance Enhancement Programme and could consider alternatives to dismissal.
33. Kader holds a number of degrees and is clearly an intelligent woman. The evidence is that persons with a matric certificate are able to pass the required KSH-010 course. In the absence of any indication that Kader is intellectually challenged, the only reasonable inference that can be drawn from her failure to achieve the required KSH-010 standard in a period of 9 years, is that she did not apply herself or lacked the motivation to do so.
34. There is no doubt that Kader was aware that she was required to achieve the KSH-010 standard as part and parcel of the performance standard which Eskom required and was obliged to enforce. On the totality of the evidence, there is likewise no doubt that she was given a fair opportunity to meet the required standard. Indeed, she had been given every opportunity of meeting the targets which had been set for her, inclusive of the targets she had set for herself. Kader complained that coaches were unwilling to assist her, but when it was agreed that she would approach coaches in advance and enter into specific training agreements with them, she failed to do so without providing any reason for her conduct in this regard.
35. The process followed by Eskom appears to have been more than fair. Kader was counselled and warned on numerous occasions. She was given a fair hearing on 12 July 2007 and was assisted by her representative. The procedures prescribed by the Performance Enhancement Programme had in fat been complied with over a number of years and by 12 July 2007 it was clear that Kader would not achieve the required standard of performance.
36. Given the stringent requirements which Eskom is required to comply with at Koeberg, it does not appear to me to have been unreasonable or unfair to opt for Kader's eventual dismissal rather than to consider her demotion or transfer. If she were to have been demoted or transferred, her clear lack of motivation and application in her job would simply be carried over to the next position. In the final analysis, Kader was the author of her own misfortune.
37. The Constitutional Court in Sidumo v Rustenburg Platinum Mines Limited (2007) 28ILJ 2405 (CC) at 2439E-G and the Labour Appeal court in Fidelity Cash Management Services (Pty) Ltd v CCMA & Others (2008) 29 ILJ 964 (LAC) at 995D-997E confirmed that the test to be applied in determining whether or not a decision of an arbitrator or commissioner in terms of the Act is reviewable, is whether the decision reached is 'one that a reasonable decision maker could not reach.' The test is an objective one which must be applied with reference to all of the evidence which was before the commissioner or arbitrator and the issues which he/she had to determine.
38. In evaluating whether or not an arbitration award which was made was one which a reasonable decision-maker could not reach on the totality of the evidence proffered, this Court must not examine or analyse the arbitration award minutely, as one would an eloquent judgment of the Supreme Court of Appeal or the Constitutional Court. Arbitration awards must be seen and judged for what they are - awards made by arbitrators who are not judges. (see Ellerine Holdings Limited y CCMA & Others (2008) 29 ILJ 2899 (LC) at 2906D). It must also be borne in mind that the fact that a particular aspect of the evidence has not been mentioned in an award, does not mean that it was not considered.
39. The award in the instant case is exceptional. It runs to 47 pages in single spacing. Tthe Commissioner has provided a detailed summary of the evidence of each of the witnesses who testified during the course of the proceedings, as well as of the arguments that were advanced. Thereafter, the Commissioner provided a detailed analysis of the evidence and argument against the background of the issues in dispute, made certain findings of fact and provided his reasons for doing so. The award constitutes an impressive piece of work. It is not apparent from the award that the Commissioner committed any misdirection or gross irregularity. The award is certainly one which a reasonable decision-maker could reach on the totality of the evidence before the Commissioner.
40. Given these circumstances, it is clear that the applicants' application for condonation of their failure to launch the review application herein timeously, must fail. It is accordingly not necessary for me to deal with the application for condonation of the applicants' failure to file the supplementary affidavit timeously.
41. In the result, the following Order is hereby made:
41.1. The applicant's application for condonation of the launching of this application outside of the time limits prescribed by section 145 of the Labour Relations Act, No 66 of 1995, is dismissed, with costs.
A M DE SWARDT, A J
8 June 2010
For Applicant: Adv N Arendse S C (pro bono), instructed by Ms T Ralehoko, of Cheadle Thompson & Haysom
For first respondents: Mr Jose Jorge of Perrot Van Niekerk Woodhouse & Matyolo Inc
Date of hearing: 2 June 2010
Date of Judgment: 9 June 2010