South Africa: Johannesburg Labour Court, Johannesburg

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no: JR 2529/11

In the matter between:

POPCRU obo S MATHABA                                                                                         Applicant

and

R LYSTER N.O.                                                                                               First Respondent

MINISTER OF CORRECTIONAL SERVICES                                            Second Respondent

GPSSBC                                                                                                         Third Respondent

Heard: 2 June 2016

Delivered:  7 June 2016

JUDGMENT

VAN NIEKERK J

[1] This is an opposed application in which the applicant seeks to review and set aside an arbitration award issued by the first respondent (the arbitrator) on 26 July 2011. In his award, the arbitrator ruled that he had no jurisdiction to entertain the applicant’s dispute.

[2] The review application was filed a week late. The reason proffered by the applicant is that counsel’s opinion had to be sought, that counsel and the applicant’s legal adviser were absent during the school holidays in September 2011. The applicant also asserts that it has reasonable prospects of success in that the arbitrator materially misconceived the nature of the question placed before him, his authority to deal with that question and that he committed material mistakes of fact and law.

[3] The delay is not excessive, and the explanation proffered for it is not unreasonable. In terms of the test to be applied, that leaves a consideration of the applicant’s prospects of success. The applicant was employed by the Department of correctional services. In August 2007 he was charged, together with two other members of these unit for dereliction of duty after a prisoner escaped during August 2007. In terms of the disciplinary code, the applicant consented to a demotion as an alternative to dismissal, and with effect from 12 September 2008, he was demoted to a lower rank. The applicant’s colleagues were not given the option of demotion as an alternative to dismissal. In a later challenge to the sanction of dismissal meted out against them, the dispute between them and the second respondent was settled on the basis that the sanction of dismissal in each case was substituted with a final written warning On 2 October 2009, more than a year after the demotion but after the reinstatement of the applicant’s colleagues, the applicant referred an unfair labour practice to the third respondent, the bargaining council. There was no explanation for the delay in referring the dispute, nor was there any formal application for condonation.

[4] In the proceedings under review, a number of preliminary points were taken. The second respondent contended that the dispute arose on 1 April 2008, and that the referral was dated October 2009, thus being out of time. The second point was a jurisdictional point to the effect that the applicant, on his own version, had consented to demotion and could not now be heard to say that he wished to be placed back in his prior rank. The arbitrator upheld the latter point and agreed that there was no dispute between the parties because the applicant had consented to demotion. To the extent that the applicant wish to challenge the process and overturn the agreement that resulted in his demotion on the basis that it was brought about by force or duress, the bargaining council does not have jurisdiction to deal with the matter such as that which ought to be pursued in a civil court. The arbitrator recorded that in any event, and there had been no allegation at any stage in the proceedings that the applicant had consented to his demotion under any form of duress or that he was not in his proper centres at the time. On the contrary, he, with the assistance of his union, chose to invoke the terms of the disciplinary code that permitted him to consent to a demotion as an alternative to dismissal.

[5] The grounds for review assume that the threshold to be met is one of reasonableness. In effect, the applicant submits that the arbitrator committed a material error of law and that he reached conclusion that no reasonable decision maker could have reached on the available evidence. Given that the decision made by the arbitrator amounted to one that he had no jurisdiction to entertain the applicant’s claim, this is not the applicable threshold. In a matter such as this, it is well-established that the basis for review is one of correctness. In my view, the applicant has no prospects of success if only because this is not the case that it has made out on review. In any event, even if I would to afford the founding affidavit a generous interpretation, it seems to me that on a prima facie basis, the arbitrator was correct in coming to the decision that he did. That being so, the applicant has limited or no prospects of success and condonation for the late filing of the review application ought to be refused. In so far as the court is required to have regard to the respective prejudice to the parties, the award under review was issued almost 5 years ago. The incident that gave rise to the proceedings under review occurred nine years ago. Applications for review are intended to be initiated and prosecuted with due diligence – indeed, the code of practice records that a review application is akin to an urgent application. In my view, the statutory purpose of the expeditious resolution of labour disputes would be severely undermined should condonation be granted in the present circumstances.

I make the following order:

1.    Condonation for the late filing of the review application is refused.

2.    The review application is dismissed.

ANDRÉ VAN NIEKERK

JUDGE OF THE LABOUR COURT

REPRESENTATION

For the applicant: J Nysschens, Grosskopf Attorneys.

For the respondent: Adv.  MS Mphahlele, instructed by the State attorney Pretoria.