Mbhele v SA Bank Note Company (Pty) Ltd (JS 844/11) [2013] ZALCJHB 29; (2013) 34 ILJ 2889 (LC) (15 March 2013) per Van Niekerk J.
LRA 191(6) allows the CCMA director to refer disputes to the labour court. Not all labour disputes are automatically adjudicated by the LC. In fact most of them are arbitrated by the CCMA or bargaining councils. But provision is made in the LRA 191(6) for a party to apply to the director of the CCMA to refer certain disputes to the LC. In ruling on the application the director must consider various factors including questions of law, the complexity of the dispute and the public interest. But once a favourable decision is made the director is obliged to refer the dispute to the LC. In this matter the employer took the unusual step of filing a statement of case justifying the reasons for dismissing the former CEO. The CEO applied unsuccessfully to the LC to strike out various allegations in that statement. Amongst others the CEO sought to limit the employer’s reasons for dismissal to those dealt with by the person who chaired the disciplinary inquiry.
Extract from Labour Relations Act, 1995 (LRA)
191 Disputes about unfair dismissals and unfair labour practices
. . . . .
(6) Despite subsection (5)(a) or (5A), the director must refer the dispute to the Labour Court, if the director decides, on application by any party to the dispute, that to be appropriate after considering—
(a) the reason for dismissal;
(b) whether there are questions of law raised by the dispute;
(c) the complexity of the dispute;
(d) whether there are conflicting arbitration awards that need to be resolved;
(e) the public interest.
(7) When considering whether the dispute should be referred to the Labour Court, the director must give the parties to the dispute and the commissioner who attempted to conciliate the dispute, an opportunity to make representations.
(8) The director must notify the parties of the decision and refer the dispute—
(a) to the Commission for arbitration; or
(b) to the Labour Court for adjudication.
(9) The director’s decision is final and binding.
(10) No person may apply to any court of law to review the director’s decision until the dispute has been arbitrated or adjudicated, as the case may be.
Quotations from judgment (without footnotes)
“[1] Before the court are a number of interlocutory applications, the primary application being an application to strike out a number of averments contained in the respondent’s statement of case filed on 27 October 2011. The applicant has applied, in so far as it is necessary, for condonation for the late filing of the application to strike out. The respondent opposes that application, and has filed an application in terms of Rule 30A of the Uniform Rules of Court for an order to the effect that the applicant should withdraw his application to strike out.
[2] The background facts material to these proceedings are that the applicant was dismissed after a disciplinary enquiry conducted in December 2010. The applicant disputed the fairness of his dismissal, and in terms of a ruling made under s 191(6) of the Labour Relations Act, 66 of 1995 (the LRA), the dispute has been referred to this court for determination. In the statement of case filed by the respondent (the substantive proceedings, unusually, were initiated by the respondent), reference is made to forensic reports prepared by Ernst and Young. The preamble to paragraph 67 of the statement of case states “The investigation revealed the following…” and proceeds to describe, in four subparagraphs, more precisely the results of the investigation. The preamble to paragraph 70 of the statement of claim states “The allegations against the respondent stemmed from the findings of the investigation. However, the following issues are also relevant to these proceedings…’In nine subparagraphs, the respondent proceeds to describe issues that arose during the applicant’s employment and which it contends are the basis for the allegations of misconduct made against him.
[3] The applicant contends that certain of the averments made are frivolous, vexatious and irrelevant because the respondent did not pursue charges of misconduct in relation to the matters that form the subject matter of the paragraphs concerned, or because the chairperson of the disciplinary hearing did not deal with them, or find him guilty of that misconduct.
[4] Reduced to its essence, the applicant’s complaint is that any averments of misconduct that fall outside of the scope of the chairperson’s adverse findings are not relevant to the pending trial.
[5] Condonation for the late filing of the strike out application was sought in the answering affidavit to the Rule 30A application. The strike-out application is brought in terms of Rule 23(2) of the Uniform Rules, read with Rule 11 of the Rules of this court. The application was lodges on 15 August 2012, almost ten months after the respondent’s statement of case was filed, and almost eight months after the applicant’s response to the statement of claim was filed. Rule 23(2) requires that an application to strike out be brought ‘within the period allowed for any subsequent pleading’. The respondent contends that condonation ought to be refused, since it is inter alia sought after the fact in an attempt to purge an irregular step, and because no justifiable basis has been established for condoning the applicant’s failure to comply with the time-period within which strike-out applications must be brought.
[6] Although the issue of condonation was dealt with at some length in the applicant’s heads of argument, at the hearing of the application Mr Halgryn SC, who appeared for the applicant, contended that it was not necessary for the applicant to seek condonation, and that the applicant remained entitled to seek to strike out the paragraphs concerned at any stage. He equated the relief sought by the applicant to that which applies in the case of an exception, and submitted that despite the prescribed time limit, there was no bar to the applicant raising his objections either at this stage, or indeed at the trial.
[7] In my view, the present application can be disposed of on the question of relevance. Adv Gauntlett SC, who appeared for the respondent, submitted that even if at trial, the respondent was precluded from the traversing factual material that is the subject of the impugned paragraphs for the purposes of discharging its onus to establish acts of misconduct on the part of the applicant, they were relevant in relation to the question of sanction, and in particular, to the appropriateness of dismissal as a sanction for any misconduct established.
[8] The applicable approach in this regard is that established by the Constitutional Court in Sidumo & another v Rustenburg Platinum Mines & others 2008 (2) BCLR 158 (CC). Navsa AJ said the following:
‘[78] In approaching the dismissal dispute impartially a Commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The Commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long service record. This is not an exhaustive list.
[79] To sum up. In terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.’ [Emphasis added]
[4] What this requires is that the commissioner takes seriously the reason for the employer establishing any rule that might have been transgressed, and the reason for prescribing the penalty of dismissal for a breach of that rule. The commissioner must seek to understand the reason for the rule and its importance and significance. The commissioner is further required to undertake a balanced and equitable assessment of all of the relevant factors, remaining impartial throughout and not elevating the interests of one party over the other.
[5] Given the s 191(6) ruling, this is [sic] value judgment that this court will be required to exercise in due course. Issues of trust and confidence ordinarily assume a degree of significance and form an integral element of the assessment that must necessarily be performed. In a case such as the present, where the applicant is employed as a senior executive (indeed, he was the respondent’s chief executive officer) the outcome of the forensic audits, any conduct that the respondent may consider to have been indicated and which might serve to compromise considerations of trust and confidence, will almost inevitably be relevant to the determination of an appropriate sanction for any misconduct found to have been established.
[6] In these circumstances, it is not necessary for me decide whether any application for condonation for the late filing of the strike out application is necessary, nor is it necessary for me decide whether for the purposes of establishing any act of misconduct for the purposes of justifying the substantive fairness of the applicant’s dismissal, the respondent is necessarily bound by the parameters of the chairperson’s recommendation. It is also not necessary for me to make any ruling in the Rule 30 A application.
[7] In relation to costs, there is no reason why cots should not follow the result. Both parties engaged senior counsel, and in my view, the costs of two counsel are warranted. For these reasons, I make the following order:
- The application to strike out is dismissed with costs, such costs to include the engagement of two counsel”.