THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable
case no: C597/2021

In the matter between:

SUSANNA MAGDALENA STEYN	Applicant

and

COMMISSIONER D J DU PLESSIS				        First Respondent

SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL (WESTERN CAPE DIVISION)	Second Respondent

KANNALAND LOCAL MUNICIPLAITY	Third Respondent

Heard:	29 June 2023
Date of Judgment:  This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 10h00 on 13 July 2023

JUDGMENT

WHYTE, AJ
Introduction

[1]	The applicant seeks the review and set aside on an arbitration award made by the first respondent in which he found that her dismissal by the third respondent was fair. The applicant also seeks an order of substitution to the effect that he dismissal was substantively unfair and that she ought to be reinstated into the third respondent’s employment.

[2]	The applicant’s application for review was filed late and she has applied for condonation.

[3]	The respondents have not opposed the application.

Condonation

[4]	The extent of the delay is ten weeks. This is not an inconsiderable period of delay.

[5]	It is trite that an applicant for condonation must demonstrate that there is a reasonable explanation for the delay and that the main matter enjoys prima facie prospects of success. Both grounds must be established and the absence of a reasonable explanation will be fatal to the application even where the prospects of success are good. The test is not however an inflexible one and ultimately condonation will be granted where it is in the interests of justice to do so.

[6]	The explanation for the delay is set out in the applicant’s founding affidavit. Whilst the explanation is lacking in detail, I am of the view that it is sufficient to establish that the delay in prosecuting the review in a timeous fashion was almost exclusively due to failings on the part of the applicants’ representatives, rather than through any act or omission on her part. Whilst it is correct that the failings of a party’s legal representatives should not invariably be seen as an excuse, this is not a case where their failings should be imputed to the applicant.

[7]	Further, I am satisfied, for the reasons set out more fully below, that the prospects of success in the matter are compelling. In the light hereof, I am inclined to grant condonation.

The merits of the review

[8]	The nub of the complaint brought by the third respondent at the applicant’s disciplinary hearing was that she had acted dishonestly be adding signatures to a memorandum for the purpose of misleading the third respondent’s management into re-grading her post with retrospective effect. It was contended that the applicant was not entitled to this re-grading and had taken advantage of the third respondent’s parlous administrative state in order to secure authorisations to which she ordinarily would not have been entitled.

[9]	In his award, the first respondent agreed, finding that the document on which the applicant had relied upon to secure the re-grading was not authentic, or that she had otherwise secured an authorisation to a higher grade to which she was not entitled.

[10]	On this basis, the first respondent concluded that the applicant was guilty of dishonesty and not ‘mere negligence’ and was appropriately dismissed for that reason.

[11]	In my view, these conclusions are not supported by the evidence and are not those that could have been reached by a reasonable arbitrating commissioner. In particular, the first respondent appears to have misunderstood the gravamen of the charges preferred against the applicant, namely that the third respondent was required to demonstrate that the applicant had acted dishonestly, firstly by “applying” (aka forging) a signature to a memorandum which had been purposefully drafted with a view to deceiving the third respondent’s management.

[12]	There was however no clear evidence before the first respondent that this was indeed the case. More particularly, there was no reason to dispute the authenticity of the memorandum of 27 September 2016 without clear evidence that it had been approved or falsified in a dishonesty fashion. To the contrary, the evidence of the applicant and her witness Nqeketo was clear as to the circumstances under which the memorandum had been produced and the reasons why the applicant’s version was consistent with what the third respondent was seeking to achieve.

[13]	This being the case, the award is not one that a reasonable arbitrating commissioner could make and stands to be reviewed and set aside.

Substitution

[14]	Whilst I am mindful of the fact that the third respondent did not oppose the proceedings and will not have had an opportunity to address the Court on the question of substitution, it seems to me that it would be pointless to remit the matter back the second respondent bargaining council.

[15]	The only plausible finding that could have been made on the charges preferred was one that the applicant was not guilty of the misconduct in question. That being the case, there was no reason not to grant her the primary relief of reinstatement. This particularly so as there is no evidence in the record to the effect that reinstatement would not have been possible due to reasons of practicality.

Costs

[16]	The matter was not opposed by the third respondent and in the light of the order that I intend to make, there will be an ongoing employment relationship. I accordingly make no order as to costs.

[17]	In the premise, I make the following order: 

Order

1.	Condonation in respect of the late filing of the applicant’s review is granted;

2.	The arbitration award dated 9 July 2021 under the second respondent’s case reference WCP012012 is reviewed and set aside;

3.	The award is replaced by one in the following terms; 

3.1	The applicant’s dismissal is substantively unfair.
3.2	The respondent is directed to reinstate the applicant into its employment, on the same terms and conditions of employment, with no loss of benefits, and with retrospective effect to the date of her dismissal.
3.3	The applicant is to be reinstated and paid all back pay due to her as a consequence of the order of reinstatement by no later than 1 October 2023.

4.	There is no order as to costs.

J Whyte
Acting Judge of the Labour Court of South Africa

Appearances
For the Applicant:	Mr F van der Merwe 
Instructed by:	Le Roux Lamprecht Inc.
For the Respondents:	No appearances