IN THE LABOUR COURT OF LESOTHO LC/REV/99/10
HELD AT MASERU
In the matter between:
AMANDA `MAPELAELO SHALE APPLICANT
LESOTHO FUNERAL SERVICES 1ST RESPONDENT
DIRECTORATE OF DISPUTE PREVENTION 2ND RESPONDENT
Practice and Procedure - Review of an arbitral award - Condonation - The Arbitrator refusing to condone an unfair dismissal claim brought outside the prescribed period - Review sought on the grounds that the Arbitrator acted irregularly by indicating, inter alia, that there are strong prospects of success but not strong enough to warrant grant of condonation because the reasons for the delay were unsatisfactory - Principles regulating condonation restated - Court finds Arbitrator to have considered principles regulating condonation - Application for review therefore dismissed.
1. This is an application to review and set aside the arbitration award in A0 638/10 dated 7th October, 2010 in terms of which applicant’s condonation application was refused by the second respondent. The applicant is a former employee of Lesotho Funeral Services, the 1st respondent herein, and was stationed in Maseru in its Transport Section.
2. She was dismissed on 28th September, 2009 by a letter bearing the same date which she alleged she only received on 8th October, 2009 following a disciplinary enquiry in which she was charged with theft of monies belonging to the 1st respondent. She was found guilty as charged and advised by the Disciplinary Panel that she had a right to lodge an appeal against this decision to one of the Company’s Directors in either Leribe or Mohale’s Hoek, and not in Maseru where the decision to dismiss her had taken place.
3. She queried this on the basis that she was answerable to the Director in Maseru. Hence, she lodged her appeal in Maseru initially on 13th October, 2009, but was advised by 1st respondent’s Human Resources Section to follow the procedure given to her by the Disciplinary Panel. She wrote again on 11th November, 2009, and the 1st respondent reiterated its appeals procedure as previously stated. The applicant then decided to approach the Directorate of Dispute Prevention and Resolution (DDPR) challenging the substantive and procedural fairness of her dismissal.
4. Having been dismissed on 28th September, 2009, she only instituted her claim before the DDPR on 14th July, 2010, about ten (10) months after her dismissal. Her excuse for the delay was that she had been trying to pursue an internal appeal to the Managing Director, Maseru, who she felt was the appropriate arbiter as opposed to the Directors based in Leribe or Mohaleshoek. As it is, the claim was filed outside the statutorily prescribed period of six months either taking the date of the purported dismissal or the date on which the applicant alleges to have received the notification of the dismissal. Despite this delay, applicant’s unfair dismissal claim before the DDPR was not accompanied by a condonation application.
GROUNDS OF REVIEW
5. It is common cause that it is the learned Arbitrator who raised concern about the absence of a condonation application and advised the applicant to file one. It is applicant’s case that it was irregular for the learned Arbitrator to have raised the question of prescription mero motu when the respondent initially had no problems with it. The applicant raised a series of review grounds including that the learned Arbitrator failed to take into consideration that correspondence between the parties interrupted the statutory prescription period, explaining the delay.
6. She further challenged the award on the ground that the learned Arbitrator failed to apply his mind to the case that was before him in that he rightly indicated in his award that the prospects were strong but said they were not strong enough to justify condonation for the late filing because the explanation for the delay was unsatisfactory. He also argued that the learned Arbitrator wrongly adopted a piece-meal approach in the determination of the condonation application when the factors relating to condonation are interrelated. He prayed that the matter be remitted to the DDPR for a proper consideration of the condonation application.
7. In reaction, 1st respondent’s Counsel argued that there was no irregularity in the learned Arbitrator raising the issue of prescription on his own accord as he has a duty to direct parties. He further argued that the points raised by applicant’s Counsel were grounds of appeal and not review when this Court can only entertain review applications from the DDPR and not appeals. As far as he was concerned, the delay was caused by applicant’s failure to follow the procedure prescribed by the employer. She decided not to comply despite being reminded thereof and insisted she wanted to lodge her appeal with the 1st respondent’s Director in Maseru. Counsel argued that her failure to refer her claim to the DDPR timeously was her own making. He submitted that it was not true that any negotiation was going on as the 1st respondent stated its unwavering position as far back as November, 2009.
PRINCIPLES GOVERNING CONDONATION
8. The test applicable in an application for condonation for the breach of the rules of Court or an arbitration forum has been widely traversed and is well established in our jurisprudence. In terms of principles regulating the grant or refusal of condonation, the Court or the Arbitrator has a discretion which is to be exercised judicially after taking into account all the facts before it. Condonation before the DDPR is regulated by Section 227 of the Labour Code (Amendment) Act, 2000. The Sectionprovides that an unfair dismissal claim must be instituted before the DDPR within six months of the date of dismissal. Notwithstanding this provision, the DDPR has a discretion to condone a late referral on good cause shown in terms of Subsection (2) thereof.
9. The concept of good cause has been explained in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532 B-E per Holmes JA. This is a classical case on the issue. The Court had this to say aboutthe factors that have to be taken into account when considering a condonation application:
In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success and the importance of the case…
The Court went further emphasise that“respondent’s interests in finality must not be overlooked.”
Herbstein & Van Winsen in The Civil Practice of the Supreme Court of South Africa (4th ed.,) 1997 at pp 897 - 898 added to these factors the question of prejudice to the respondent; the convenience of the Court and the avoidance of unnecessary delay in the administration of justice.
10. These factors were succinctly captured in Foster v Stewart Scott Inc., (1997) 18 ILJ 367 (LAC). The following are the factors to take into consideration in assessing whether or not to grant condonation:
a) the degree of lateness or non-compliance with the prescribed timeframe;
b) the explanation for the lateness or the failure to comply with timeframes;
c) prospects of success or bona fide defence in the main case;
d) the importance of the case;
e) the respondent’s interest in the finality of the judgment;
f) the convenience of the Court; and
g) avoidance of unnecessary delay in the administration of justice.
There is no hard and fast rule in considering a condonation application. It depends on the circumstances of each and every case. As put by Holmes JA., in Melane (supra) “any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts.”
11. These factors are not individually decisive but are interrelated and must be weighed against each other. In weighing these factors for instance, a good explanation for the delay may assist the applicant in compensating for weak prospects. Similarly strong prospects of success may compensate the inadequate explanation and the long delay. In Chemical Energy Paper, Printing and Allied Workers’ Union, Keetso & 211 Others v CTP JS 215 /2010 despite having found the delay significant and the applicant’s explanation weak, the Court granted condonation on the ground that there were reasonable prospects of success. It is critical that all the factors be taken into consideration cumulatively in determining a condonation application and be weighed one against the other because as pointed out in Melane’s case (supra) “they are not individually decisive.”
12. This is because strong prospects of success may, depending on the circumstances of each case, compensate the inadequate explanation and the long delay. Logically, where there are no prospects of success there would be no point in granting condonation, no matter how good the explanation for the delay. In such circumstances a condonation application should be refused.
THE COURT’S EVALUATION
13. It is common cause that there was no condonation application before the learned Arbitrator, and he on his own accord raised the issue of prescription. It is one of applicant’s grounds of review that it was irregular for him to have raised the issue of prescription mero motu. As it is prescription is a question of law and the Court or the arbitration forum has a right to raise it on its own. Thus the Court or the DDPR cannot look the other way when rules are being breached. The learned Arbitrator had a duty to uphold the law and ensure that the rules regulating the DDPR are observed, and he duly undertook this duty. There was therefore no irregularity on his part in raising the issue of prescription. This ground of review therefore falls off.
14. On the condonation application, the learned Arbitrator found that the applicant’s explanation for the delay was unsatisfactory and that the prejudice was self-imposed. He therefore dismissed the condonation application. He however, remarked at para. 21 of his awardvis a` visa prospects of success that “l cannot ignore the fact that although a party may be given a hearing, found guilty and duly dismissed, but that the procedural requirements such as she alleged, may not have been met. In my opinion, the alleged prospects show that Applicant has a valid claim in the main action. l am influenced by the decision of the court in Loti Brick (Pty) Ltd v Mphofu & Others 1995 - 96, LLR 46 (sic)where the court stated that in order to demonstrate prospects of success, a party need only to state averments that show that they have a case. However, strong as the prospects seem, (emphasis mine)they are not strong enough to justify condonation of a late filing of a matter where the Applicant has failed to satisfactorily justify the degree of delay.”
15. It is applicant’s case that the fact that the learned Arbitrator indicated that there were strong prospects, he ought to have granted the condonation application. When exercising review functions the Court is concerned with the legality of the decision and not with its merits - Hira v Booysen 1992 (4) SA 69 (A) cited with approval in the Judicial Service Commission and Others v Abiel Mokorosi Chobokoane C of A (CIV) 17/2003. This Court echoed this principle in Global Garments v Mosemoli Morojele LC/REV/354/06 and highlighted the point that a“review does not re - open the merits of the decision of the trier of facts. It deals with the regularity of the proceedings and the legality of the process.”
16. DDPR awards are not appealable before the Labour Court. Thus even if the Court feels that it could have come to a different conclusion, as long as the Arbitrator is found to have exercised his discretion judiciously or applied his or her mind to the case before him or her, the Court cannot interfere. According to the case of Shidiack v Union Government (Minister of the Interior) 1912 AD 642 at 651-2, Courts can only interfere where the Arbitrator acted mala fide or from improper motives, or when he or she has not applied his or her mind to the matter before him or her or failed to exercise a discretion conferred on him or her at all.
17. The grant of condonation is an indulgence. The Court’s power to grant relief should not be exercised arbitrarily and upon the mere asking, but with a proper judicial discretion and upon sufficient and satisfactory grounds shown by the applicant. It is necessary in a condonation application for the applicant to show not merely that he or she has strong prospects of success on the merits but to give good reasons why he or she should receive such an indulgence, that is, that he or she acted expeditiously when he or she discovered her delay and advance an acceptable explanation for such a delay.
18. Internal appeals do indeed interrupt the running of prescription as enunciated by this Court in Ts`epang Tsakatsi v the DDPR and Lesotho Electricity Company LC/REV/36/08. The decision of SACCAWU v Edgars Stores LTD and Another (1997) 18 ILJ 1064 was cited with approval in the judgment. This is a matter in which the Court held that the dispute concerning the fairness or otherwise of the dismissal did not arise until the internal review procedure had been finalised. A question then arises: can we say that applicant’s delay in instituting proceedings before the DDPR was due to exhaustion of internal remedies by way of an internal appeal? The answer is no because the applicant blatantly refused to follow the procedure that she had been advised to follow by the employer, and her appeal was a non-starter. As rightly pointed out by 1st respondent’s Counsel, as far back as October, 2009 the employer reiterated to the applicant what their proper procedure was.
19. We feel if the applicant considered the procedure unfair or irrational, she could have taken legal steps to challenge it whilst pursuing an unfair dismissal claim, instead of engaging in an incessant correspondence with the employer when she could see that the employer was adamant on the procedure it was recommending. She was insistent that she will appeal to the Director of the 1st respondent in Maseru, even when she was told that the right procedure was to either appeal to the Director based in Leribe or Mohaleshoek. The 1st respondent replied to her on 15th October, 2009 reminding her of the procedure recommended to her by the disciplinary panel. She wrote again and on 18th November, 2009 they reiterated their previous response. The Union issued a letter of demand on 28th June, 2010 and DDPR proceedings were instituted on 14th July, 2010. It is not explained what transpired between 15th October, 2009 and 28th June, 2010 when the letter of demand was finally issued.
20. In Carter v Commission for Conciliation, Mediation & Arbitration and Others (2010) 31 ILJ 2876 (LC) at 2883, at para  the Court had this to say on factors to be considered in condonation applications, that;
… in light of current jurisprudence, it seems that in condonation applications where the explanation for one or more significant periods of delay is absent or completely inadequate this may constitute a sufficient reason for refusing condonation, but even in such instances, adjudicators in exercising their discretion are not precluded from still considering the prospects of success.
The various factors for condonation must be put on a scale and weighed one against the other. The learned Arbitrator was therefore enjoined to essentially consider the degree of the delay, the explanation thereof and prospects of success.
21. An assessment of the record and the award reveals that the learned Arbitrator did consider the main essentials of a condonation application. As aforementioned, it is necessary in a condonation application for the applicant to show not merely that he or she has strong prospects of success on the merits but to give good reasons why he or she should be granted condonation for the breach of the Court’s or an Arbitration forum Rules. In his evaluation, the applicant had failed to give satisfactory reasons for her delay which the learned Arbitrator felt outweighed her prospects of success. In our evaluation he applied his mind to the case that was before him and arrived at the outcome he deemed appropriate in the circumstances. Judicial review is concerned not with the decision, but with the decision-making process.
22. The concept of judicial review is aptly captured in the case of Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and Another 1988 (3) SA 132 at 152, the Court held that in order to establish review grounds it must be shown that the presiding officer in the Court a quofailed to apply his or her mind to the relevant issues in accordance with the ‘behests of the statute and the tenets of natural justice.’ The Court pointed out that such failure may be shown by proof,inter alia, that the decision was arrived at either arbitrarily, capriciously, mala fide, as a result of unwarranted adherence to a fixed principle, in order to further an ulterior or improper purpose, that the presiding officer misconceived the nature of the discretion conferred upon him or her and took into account irrelevant considerations or ignored relevant ones. The applicant must prove that the decision of the officer presiding in the lower Court was so grossly unreasonable as to warrant the inference that he had failed to apply his mind to the matter as aforestated. As far as we are concerned the learned Arbitrator applied his mind to the condonation application that was before him.
23. The applicant contended that since the learned Arbitrator indicated in his award that applicant’s claim bore prospects of success, he ought to have granted the condonation application. A question arises: does it necessarily follow? The answer is in the negative. It is trite that even if prospects of success were held to be strong, this fact alone is not sufficient to grant condonation. In NUM v Council for Mine Technology (1999) 3 BLLR, 209 at 211 the Court held that “a case with a long period of delay, coupled with an unacceptable explanation far outweighs the prospects of success.”
24. There is plethora ofauthority in support of this principle - See Molapo Mothunts`ane and Others v Kopano Selomo and Another C of A (CIV) 16/1992; Teba and Others v Lesotho Highlands Development Authority LAC/CIV/A/06/09 at p. 10(LESLII); Lesotho Wholesalers & Catering Workers` Union and 33 Others v Metcash Lesotho and Another LC 44/99; Chemical Energy Paper Printing, Wood and Allied Workers’ Union v Metro Box t/a M.B Glass (2005) 26 ILJ 92 at pp 94-96; Paper Printing, Wood & Allied Workers’ v Keycraft (1989) 10 ILJ 272 at 273 E.
25. Applicant’s Counsel prayed that the DDPR award in A0 638/10 be reviewed and set aside and further that the matter be remitted to the DDPR to be heard afresh. Having found no irregularity in the arbitration process, the review application is bound to fail.
The Court therefore comes to the following conclusion:-
a) That the review application is dismissed;
b) The DDPR award in A0 638/10 stands; and
c) There is no order as to costs.
PRESIDENT OF THE LABOUR COURT (a.i)
M. THAKALEKOALA I CONCUR
L. RAMASHAMOLE I CONCUR
For the applicant: Adv., P.M. Mosuoe
For the 1st respondent: Adv., T. Mosotho
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