THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG …

1 THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG JUDGMENT Reportable/Not Reportable Case no: JR 1374/11 In the matter between: LUCKY SAKHUMUZI ZUNGO Applicant and COMMISSIONER MANTSHULE First Respondent COMMISSION FOR conciliation , MEDIATION AND ARBITRATION Second Respondent JDG GROUP LIMITED Third Respondent Heard: 6 July 2016 Delivered: 29 July 2016 Summary: Review of CCMA condonation ruling. Item 4(3) of Code of Good Practice: Dismissal, Schedule 8 to LRA considered employer s failure to remind employee of right to refer matter to a council or the CCMA or to any dispute resolution procedures established in terms of a collective agreement although item 4(3) may not constitute a substantive provision of our law, it is not entirely 2 meaningless where employer fails to remind employee this will be taken into account when assessing procedural fairness however this can only be assessed if dispute proceeds to arbitration there can be no automatic right to condonation if there has been such a failure.

2 Employee informed of right to appeal dismissal but not reminded of right to refer matter to CCMA no evidence placed before CCMA Commissioner to suggest that employer s failure to remind Applicant of right to refer dispute to CCMA had been a reason for delayed referral to CCMA. HELD that condonation ruling is one that a reasonable decision-maker could make no basis to review and set aside review application dismissed, with no order as to costs. _____ JUDGMENT _____ FERREIRA, AJ [1] Mr Lucky Sakhumuzi Zungo ( Applicant ) was dismissed by his employer, JDG Group Limited ( Third Respondent ), on 22 December 2010 for having breached the Company s Promise To Pay (PTP) rules, which rules related to the management of the employer s debtors.

3 [2] Although the employer did inform Applicant that he could appeal his dismissal within seven days, the employee was not reminded of his right to refer the matter to the Commission for conciliation , Mediation and Arbitration ( CCMA ), as contained in item 4(3) of the Code of Good Practice: [3] According to Applicant himself, he accepted his dismissal at the time. Being unemployed, Applicant naturally began looking for a new job and attended his first job interview at the end of January 2011. On Applicant s own version, when he disclosed during that interview that he had been dismissed for misconduct, his 1 Schedule 8 to the LABOUR Relations Act 66 of 1995.

4 3 prospective employer was no longer interested in hiring him. The same thing happened when he attended his second job interview at the end of February [4] At the beginning of March 2011, during Mr Zungo s third job interview, he once again disclosed that he had been dismissed for misconduct. The interviewer then told Applicant that he could challenge his dismissal if it had been unfair. [5] According to Applicant, for the remainder of the month of March 2011, he undertook research on the internet concerning the notion to pursue an unfair dismissal claim against Third Respondent and he generally prepared his referral.

5 On 25 March 2011 Applicant finally referred his CCMA dispute, more than three months after the date of his dismissal. Given the fact that the referral was 66 days late, the referral was accompanied by an application for condonation. [6] Although Applicant s condonation application was opposed by Third Respondent on affidavit, Third Respondent did not attend the CCMA hearing held on 21 April 2011, when Applicant argued his condonation application. [7] The resultant condonation ruling of First Respondent, whereby she refused to grant condonation to Applicant, is the subject matter of these review proceedings. Applicant has, inter alia, submitted that First Respondent committed a gross irregularity in failing to properly apply her mind to the evidence before her.

6 This COURT must, accordingly, consider the totality of the evidence that was before First Respondent and then decide whether her condonation ruling is one that a reasonable decision-maker could make. [8] Applicant s complaints raised against the condonation ruling may be summarised as follows:3 the Commissioner failed to consider whether Applicant s rights were fully explained to him at the disciplinary proceedings; the Commissioner failed to take into account that Applicant s delay was partly the result of Third Respondent not responding to Applicant on 25 2 Paragraphs and of Applicant s Founding Affidavit.

7 3 Paragraph of Applicant s Founding Affidavit. 4 March 2011, despite a Mr Govender of Third Respondent having apparently undertaken to do so the previous day; the Commissioner failed to take into account that Third Respondent would suffer no prejudice should Applicant s condonation application be granted; and the Commissioner failed to take into account that the delay of 66 days was not material when weighed against all of the other factors listed above. This COURT s consideration of First Respondent s condonation ruling [9] If one reads the condonation ruling, it is apparent that this is a well-reasoned ruling and, based on the totality of the evidence that was before First Respondent, the resultant decision made by the Commissioner is certainly one that a reasonable decision-maker could make.

8 [10] It is clear that First Respondent considered the degree of lateness, the reasons advanced for the late referral, the prospects of success and the balance of prejudice to both affected parties. [11] First Respondent concluded, as does this COURT , that Applicant only approached the CCMA after he had gone for various job interviews and had realised that he would not be able to get re-employment in the financial services sector unless he expunged his blemished employment record. This conclusion is a reasonable one to make based on Applicant s own explanation of what transpired during the period between his acceptance of the dismissal on 22 December 2010 and his unfair dismissal referral on 25 March 2011.

9 [12] First Respondent correctly reasoned that Applicant had failed to justify the excessive delay for his late referral and this COURT does not agree with Applicant s submission that a delay of 66 days was not material. [13] First Respondent also correctly reasoned that Applicant could not demonstrate the existence of any reasonable prospects of success. In his condonation application, the Applicant merely stated the following convoluted and essentially unhelpful statement under the heading prospects of success: 5 There is no valid reason that supports dismissal as a fair, valid and suitable, because no evidence was led to support the statement made by chairperson in support of his reasons for dismissal.

10 [14] First Respondent correctly reasoned that any prejudice likely to be suffered by the Applicant as a result of the failure of his condonation application would be outweighed by the other deficiencies of the condonation application and by the prejudice to Third Respondent if the dispute was allowed to proceed despite the unreasonable delay on the part of Applicant. There can be no doubt that Third Respondent would indeed be prejudiced if the dispute was allowed to proceed in the circumstances and it is incredulous and without merit for Applicant to have argued to this COURT that Third Respondent would suffer no prejudice should condonation be granted.