SUMMARY:

The applicant brought an application to review and set aside a condonation ruling. The commissioner found that no reasonable explanation for the delay had been proffered. Interpreting the provisions of Section 191(1)(b)(ii) of the Labour Relations Act, the 90-day period commences to run from an act or omission alleged to be an unfair labour practice and not from the date the parties failed to achieve internal resolution of the act or omission (dispute). A party seeking condonation must provide a detailed explanation for the delay as opposed to an excuse for the wrong interpretation of the legal provision. Applying the wrong legal interpretation and/or strategy does not amount to a proper and reasonable explanation.

The granting and refusal of condonation involve an exercise of true discretion. A Court of review may only interfere with the exercise of discretion if (a) wrong principles have been applied; (b) the exercise is capricious; (c) the exercise is tainted by mala fides; or (d) it has not been judiciously exercised. The review application had not been launched outside the prescribed six-week period. Condonation was not required in order to acquire jurisdictional powers. The Court dismissed the application and made no order as to costs.

BACKGROUND FACTS:

The facts relevant to the review application are as follows:

• The applicant was an employee of TUT and also a member of NTEU. The applicant applied for two promotional posts but was shortlisted for only one of them.
• Around February 2017, the applicant discovered that the post for which he was not shortlisted had been filled by another employee, in violation of the applicable procedures and requirements. This discovery led the applicant to lodge a formal grievance in April 2017.
• According to the applicable policy, the grievance process consists of three steps. Initially, at the first step, the application did not yield a satisfactory outcome. Consequently, the applicant escalated the grievance to the second step, where he alleged that the chairperson ruled in his favour, but TUT failed to implement the ruling.
• In response to the lack of implementation, the applicant proceeded to the third and final step. At this stage, a ruling was made that required TUT to provide reasons for not shortlisting the applicant for the relevant post and mandated the re-advertisement of the position internally within 20 days of the ruling, which was issued on 23 February 2019.
• Despite this ruling, TUT once again failed to implement it, prompting the applicant to refer a dispute to the CCMA, alleging an unfair labour practice in relation to promotion. This referral was made within 90 days of TUT's failure to implement the step 3 ruling.
• TUT contested the jurisdiction of the commissioner, arguing that the referral was made beyond the statutory 90-day period. In response to this challenge, the applicant received a formal ruling directing him to seek condonation due to the late referral.
• Subsequently, the applicant initiated an application for condonation, which led to the contentious ruling.

PRIMARY GROUNDS OF REVIEW

The primary grounds for review presented in the Labour Court were as follows:

1. Error of Law Regarding Section 191 (1)(b)(ii) Application: The applicant asserted that the commissioner committed an error of law by misinterpreting the provisions of Section 191 (1)(b)(ii) of the Labour Relations Act. According to the applicant, when these provisions are correctly applied, the 90-day prescribed period should commence from the date when the applicant became aware of TUT's failure or refusal to implement the findings from step 3 of the grievance process. The applicant argued that condonation was unnecessary under these circumstances.
2. Alternative Argument on Gross Irregularity: In the alternative, the applicant and their union contended that the commissioner had committed a significant irregularity in the exercise of their statutory discretion. This irregularity, they argued, stemmed from the commissioner's failure to consider material facts that could have explained the delay. Additionally, it was claimed that the commissioner neglected to assess the applicant's prospects of success in the matter.

These were the primary grounds upon which the review in the Labour Court was based, with a focus on the incorrect interpretation of Section 191 (1)(b)(ii) of the Labour Relations Act and the alleged gross irregularities in the commissioner's decision-making process.

LABOUR COURT’S EVALUATION:

Is the review application launched out of time (in the Labour Court)?

The Labour Court determined that the review application submitted to the Labour Court fell within the prescribed six-week period. Consequently, the court concluded that no condonation was necessary, and the review application was not considered to be delayed.

Did the applicant require condonation or not (at CCMA)?

The applicant and their union contended that, according to their interpretation of Section 191(1)(b)(ii) of the LRA, the 90-day period for initiating a dispute commenced from the date when the applicant became aware of TUT's refusal to implement the findings from step 3 of the grievance process.

However, the Labour Court disagreed with this contention, asserting that at the step 3 stage, what occurred was not the birth of a new dispute but rather the failure to resolve an existing dispute. It signified a deadlock where parties were unable to make progress in resolving a pre-existing dispute. Ordinarily, at this stage, another mechanism should have been employed to break the deadlock.

Furthermore, the court clarified that not every perceived unfair treatment of an employee constitutes an unfair labour practice under the LRA, as the LRA accommodates the constitutional right to strike. Thus, treating every work grievance as an unfair labour practice could hinder collective bargaining and impede power dynamics.

The applicant's complaint regarding TUT's conduct related to his promotion, and based on his own account, he became aware of this conduct in February 2017. Section 186(2)(a) of the LRA defines an unfair labour practice as involving unfair conduct by the employer concerning promotion. In this case, the act or conduct complained of was the failure to shortlist the applicant, which initiated the cause of action.

Logically, if the unfair labour act or conduct occurred when the applicant was not shortlisted, it predates the filling of the position and cannot happen once an employee discovers the post has been filled. Section 191(1)(b)(ii) of the LRA allows the 90 days to begin either from the date of the act or omission or from the date the employee becomes aware of it. If the act or omission was indeed TUT's failure to shortlist the applicant, it remained unclear from the applicant's submissions when TUT shortlisted the employees.

The Labour Court applied the principle of deemed knowledge or awareness, similar to Section 12(2) of the Prescription Act, stating that knowledge means possessing sufficient facts to suspect that there is fault. It found that the date when the applicant could have reasonably launched an inquiry into whether he was shortlisted for the other post was the starting point, and this was much earlier than February 2017.

Despite this, the applicant claimed to have become aware only in February 2017 when the post was filled. According to the second part of Section 191(1)(b)(ii), the 90-day period started running in February 2017, requiring the applicant to refer the dispute around May 2017.

By following the directive to apply for condonation, the applicant pre-emptively acknowledged the lateness of the referral. He never argued that the referral was not late; otherwise, he would have resisted applying for condonation.

Furthermore, the applicant was not obliged to go through the internal grievance process to resolve the dispute. If he saw value in the grievance process, he could have engaged in it within the prescribed 90 days. It remained unexplained why he took two months after discovering the issue to initiate the internal grievance process.

The Labour Court emphasized that the CCMA's jurisdiction to resolve a dispute was not nullified by the possibility of pursuing internal remedies. There was nothing in the LRA preventing the applicant and his union from timely referring the dispute to the CCMA.

In conclusion, the Labour Court determined that the applicant required condonation since he referred the dispute two years after becoming aware of his non-appointment.

Did the commissioner commit an error of law?

When a commissioner grants or refuses condonation, it entails an exercise of genuine discretion. Section 191(2) of the LRA stipulates that if an employee can demonstrate good cause, the Commission may allow the employee to refer the dispute even after the relevant time limit has lapsed.

In the context of labour disputes, a delay of two years demands a thorough and adequate explanation. Utilizing an incorrect legal strategy can never be considered a reasonable explanation.

The Labour Appeal Court decisively determined that when an explanation is inadequate, the prospects of success are irrelevant. The Labour Court affirmed that the commissioner applied this well-established principle correctly and found no fault in her exercise of discretion in this regard.

Furthermore, the Labour Court emphasized that when an explanation is required, it must pertain to the delay, and it must be made in good faith. Offering an excuse is distinct from providing an explanation. The applicant offered an excuse and relied on their incorrect interpretation of Section 191(1)(b)(ii) of the LRA. However, ignorance of the law is not a valid excuse. Parties are obligated to explain the delay factually, accounting for each day of the delay.

The Labour Court upheld the commissioner's judgment that the applicant failed to present a proper and reasonable explanation and deemed it a decision that any reasonable decision-maker could have reached.

FINDING BY THE LABOUR COURT

The Labour Court found that the irresistible conclusion to reach is that the review application was not filed beyond the allowable time limit. Additionally, the applicant required condonation, and he failed to furnish a comprehensive and accurate account of the excessively long two-year delay in processing what is essentially a labour dispute. Consequently, the application for review was destined to fail, leading to the dismissal of the review application by the Labour Court.

CONCLUSION

This judgement delved into the critical question of when an unfair labour practice should be brought to light and firmly established that it should be initiated when the act or omission giving rise to it occurs. The Labour Court elucidated several key principles:

• Firstly, the exhaustion of internal remedies is not a mandatory prerequisite, challenging the misconception that such avenues must be pursued before initiating an unfair labour practice claim.
• Secondly, the Labour Court emphasized the importance of providing a comprehensive and detailed explanation for any delay, emphasized that a general excuse is insufficient, and every segment of the delay, down to each day, must be meticulously accounted for.
• Thirdly, it was made unequivocally clear that the principle of exhaustion does not find automatic applicability in our legal framework, and particularly not within the realm of labour law. Each case stands on its own merits.
• Moreover, the Labour Court underscored that ignorance of the law cannot be cited as a valid excuse, especially when attempting to elucidate a period of delay in initiating an unfair labour practice claim.
• Lastly, it is emphatically stated that the mere failure of an employer to address a grievance or internal issue, such as a failure to make an appointment, does not inherently amount to an unfair labour practice.

This comprehensive analysis establishes a clear framework for understanding the timing and prerequisites for initiating unfair labour practice claims within labour law.

Link to Judgement of SAFLII: https://www.saflii.org/za/cases/ZALCJHB/2022/226.html