Case Number: PSES 01/99 034 GP
Province: Eastern Cape
Applicant: MR T J LETSOARA
Respondent: Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 28 February 2001
Arbitrator: MUHAMMED DOLLIE
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : 01/99 034 GP
In the arbitration between:
MR TJ LETSOARA APPLICANT
DEPARTMENT OF EDUCATION RESPONDENT
1 . HEARING AND REPRESENTATIONS:
The applicant was represented by Adv. Prinsloo from the SAOU and the respondent were represented by Mr Jeff Thipe. The arbitration was conducted at the ELRC offices in Centurion.
2 . ISSUE AND POWERS:
.1 The issue to be decided was a point in limene raised by the respondent that the condonation application of the applicant was granted in its absence.
.2 My powers are to control the enquiry and make a final and binding ruling on the application of the Respondent.
3 . BACKGROUND TO THE CASE:
.1 The applicant is alleging that an unfair labour practice has been occasioned on him with regards to a promotional post. The matter was referred to the ELRC and set down for conciliation on the 5th of May 1999. A certificate of non resolution was subsequently issued to the applicant by the conciliating commissioner. The matter was the referred to the arbitrator, however, due to the late referral, a condonation application was also made.
.2 Condonation was granted in the absence of the respondent party.
.3 The respondent claims that it was not informed about the condonation application and seeks an order, setting aside the ruling.
4 . ARGUMENT FOR THE RESPONDENT:
.1 The respondent is challenging the condonation ruling as it claim that it was not afforded the opportunity to respond thereto As soon as the respondent became aware of the ruling the respondent challenged the ruling at the ELRC and cited material defects in the application for condonation that would impact upon the bona fides of the Applicant.
.2 The secretary of the council responded to the respondents’ request to rescind/review the condonation ruling and was informed in a letter, dated the 23rd of February 2000, that the respondent was informed, as the ELRC had requested information from the respondent to which no response was forthcoming.
.3 Further, the ELRC indicated that neither ir nor the arbitrator had the power to rescind the award and such an application should be made by way of Judicial Review to the High Court. The ELRC went on further and stated that:
“...I urge you to carefully consider the political implications of taking this matter on review, particularly since you will have every opportunity to present your case at the arbitration.”
.4 On the basis of that letter, the respondent brought its argument for having the condonation ruling addressed to the arbitration and is in fact claiming that the ELRC is responsible for the delay in the proceedings.
.5 On the merits of its application to have the condonation ruing set aside, the respondent argues that it has better prospects of success and further, the applicant misled the commissioner who decided the condonation application, by stating that he (the applicant) was not represented at conciliation and therefore did not know of his rights to have the matter referred to arbitration within a specific time period.
.6 Further, the respondent is arguing that the conciliation process is defective and should be set aside, due to the fact that the applicant did not declare a dispute at the end of the grievance process.
5 . ARGUMENT FOR THE APPLICANT:
.1 In response to the conciliation process, the applicant argues that it is off the record and without prejudice. Furthermore the fact that the applicant was represented at conciliation is not material in itself.
.2 In response to the argument that the respondent was not informed of the condonation application, the applicant had brought to the attention of the hearing a letter from the ELRC, addressed to the respondent, stating that it required further information on the application.
.3 The letter addressed to by the applicant, wan not dated, neither was there any proof as to the manner of its transmission to the Respondent.
6 . DETERMINATION
.1 With regard to the conciliation process being challenged, the respondent had an opportunity to address any jurisdictional points at the time of the conciliation hearing. There is no argument from the respondent that this was attempted and the commissioner conciliating at the time, failed to afford the respondent and opportunity to make argument.
.2 This attempt to have the conciliation set aside at arbitration is fraught with two major obstacles. Firstly I do not have the jurisdiction to hear such an application and secondly, the respondent is not entirely without blame in this argument and any attempt to have the process set aside will be considered in light of the doctrine of the respondent’s “unclean hands”.
.3 See the case of Fidelity Guards Holdings (Pty) Ltd. and Epstein NO and others (2000) 9 LC 1.14.1 in this regard.
.4 On the condonation ruling being set aside, whether the respondent was afforded an opportunity to respond to the condonation application is a factual case. The letter addressed to this hearing by the applicant from the ELRC, is incomplete and does not put the question beyond doubt. The letter is not dated neither is there any indication as to how it was transmitted.
.5 When the respondent became aware of the condonation ruling, it approached the ELRC to have the same rescinded. The ELRC response, as addressed in the argument of the respondent, does not limit the right of the respondent to have the matter reviewed, it places a caution on the respondent. Further, the applicant did not serve notice on the respondent that a condonation application was being made. From the constitution of the ELRC and any practices of the ELRC in this regards, there is no requirement that such an application be served on the respondent. I would deem it fair that such applications are served on the other parties to dispute.
.6 The fact that the respondent relied on the ELRC response, dated 23rd of February 2000, cannot be accepted. The ELRC does not have the power to grant me jurisdiction to review a decision of another commissioner in making a ruling.
.7 The respondent would therefore have two options. To approach the Labour Court to have the condonation ruling reviewed or to approach the commissioner through the ELRC to have the decision rescinded and to give the respondent an opportunity to make its argument.
.8 I have also determined that such an application must be made forthwith by the respondent to avoid any further prejudice to the applicant by delaying the process of resolution of his dispute. Failure by the respondent to lodge its application by no later than two weeks after this award will result in the matter being set down for final and binding arbitration by the ELRC.
DATED: 28 FEBRUARY 2001
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 01/99 034 GP
APPLICANT MR T J LETSOARA
RESPONDENT DEPARTMENT OF EDUCATION
ARBITRATOR MUHAMMED DOLLIE
DATE OF ARBITRATION 12 AND 14 FEBRUARY 2001
APPLICANT ADV PRINSLOO (SAOU)
RESPONDENT MR JEFF THIPE
DATE OF AWARD 28 FEBRUARY 2001