LABOUR LAW – LABOUR ACT 11 OF 2007 – SECTION 89 (2) – APPEAL – ARBITRATORS AWARD – APPLICATION FOR CONDONATION. Uushona v Walvis Bay Cargo Terminal NALCMD 649 (13 October 2023)

Facts

The first respondent employed the applicant since 2 October 2017. He was charged with misconduct of assault on a fellow female employee, was found guilty following a disciplinary hearing, and was dismissed from employment on 23 February 2021. He referred a dispute of unfair dismissal to the Labour Commissioner on 10 April 2021. The matter went for arbitration and the arbitrator delivered her arbitration award on 28 June 2022.

The arbitration award reads as follows:

1. 1. ‘The termination of the applicant’s contract of employment with the respondent is confirmed.
   2. The applicant’s claim is herewith dismissed.
   3. There shall be no order as to costs.’

In terms of s 89(2) of the Labour Act 11 of 2007 (‘the Act’), the applicant, if dissatisfied with the arbitration award, was required to note an appeal within 30 days of the award being served on him.

The applicant became aware of the arbitration award on the date it was delivered and consequently, his appeal should have been noted by no later than 28 July 2022. The applicant noted an appeal, however, the appeal was only noted on 22 September 2022. Thus, the noting of appeal was about 56 days late, prompting the present condonation application.

Application for condonation

The applicant seeks an order in the following terms:

1. 1. Condoning the late noting of the appeal against the arbitration award handed down on 28 June 20022 by the Arbitrator, under case number CRWB 133-21;
   2. Reinstating the appeal noted on the 14^th of September 2022 under the case number HC-MD-LAB-APP-AAA-2022/00060;
   3. Extending the period for a further 90 days from the date this order is made in the event the appeal is not prosecuted within 90 days as prescribed by Rule 17()25 of the Labour Court Rules;
   4. Ordering the 2nd and 3rd Respondents to release the complete record of arbitration proceedings under case number: CRWB 133-21;
   5. Costs of suit, only if opposed; and
   6. Further and alternative relief.’

The applicant was deposed to the founding affidavit. According to him, on 16 February 2021, he was served with a notice of a disciplinary hearing for having allegedly physically shoved and assaulted a work colleague. He appeared before the disciplinary committee on 23 February 2021 and was dismissed the same day. He appealed internally, but his appeal was unsuccessful. He referred a dispute of unfair dismissal to the Labour Commissioner’s Office and on 10 March 2022, the matter proceeded to arbitration. On 28 June 2022, the arbitrator delivered the arbitration award which was brought to his attention the same day.

Issues for determination

Whether or not the court should grant condonation for the late noting of the appeal against the arbitration award, given the applicant’s explanation for the delay and the prospects of success on appeal.

Discussion

[18] It is trite that the law regarding condonation is settled. Condonation is not to be had merely for the asking. In considering such application, the court ought to consider two factors, namely; (a) an acceptable explanation for the delay or non-compliance. The explanation must be full, detailed and accurate; and (b) prospects of success on appeal. There is some interplay between these two factors, namely that, good prospects of success may lead to the granting of the condonation application even if the explanation is not entirely satisfactory. However, if there are no prospects of success, no matter how good the explanation for the delay might be, condonation must be refused.

[19] It is common cause between the parties that the 30-day period within which the applicant ought to have noted his appeal lapsed on 28 July 2022. The applicant’s explanation for the delay is principally and he requires a lawyer to note the intended appeal on his behalf. He approached NATAU who promised to assist in securing a lawyer. They did not revert. When he followed up with NATAU on 21 July 2022, NATAU advised that they could not secure a lawyer and that he should find his lawyer. Thereafter, on 9 August 2022, the applicant approached Legal Aid and applied for legal aid. He was informed on 25 August 2022 that the application was successful. After that, after the events that followed, as explained by the applicant, the appeal was noted on 14 September 2022. From the explanation, it appears that the applicant was aware at all material times that the appeal must be noted within 30 days. Given such awareness, it is not clear why the applicant only followed up with NATAU, on 21 July 2022, just about a week before the expiry of the 30 days. Another defect in the explanation is the fact that there is no evidence put forth confirming the events attributed to the union’s representative. Notwithstanding the defects in the applicant’s explanation, I am of the view that, in the circumstances, the explanation furnished by the applicant is, at the very least, adequate though not entirely satisfactory. That is not the end of the enquiry. The applicant is also required to show that he has reasonable prospects of success in the appeal.

[20]  As regards the prospects of success, the gist of the applicant’s argument is that the conclusion reached by the arbitrator that the applicant’s failure to challenge the evidence of the first respondent, means that the first respondent is correct and she has no other reason but to accept it, is perverse because the arbitrator did not analyse and evaluate the evidence to come to such a conclusion. Further, the arbitrator erred in finding that the applicant was guilty of assault in the absence of the video footage.

[21] The court in Small v Smith 1954 (3) SA 434 (SWA) at 438, held as follows:

‘It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his case or defence as concerns that witness and if need be to inform him, if he has not been given notice thereof, other witnesses will contradict him, to give him a fair warning and an opportunity of explaining the contradiction and defending his character. It is grossly unfair and improper to let a witness’ evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved. Once a witness’ evidence on a point in dispute is left unchallenged in cross-examination … the party calling that witness is normally entitled to assume in the absence of notice to the contrary that the witness’s testimony is accepted as correct.’ (My emphasis).

Conclusion

[22] It is important for a party to put its case fully to the witness during cross-examination as failure to do so results in the unchallenged witness’ testimony being accepted as correct. I am therefore, in agreement with the submission of the first respondent that in the absence of the facts being contested during cross-examination, the arbitrator may, in law, accept them as true. Further, the applicant cannot argue that an adverse finding of the credibility of the witnesses and their description of the events must have been made in the circumstances where their evidence was left uncontested. I am further not persuaded by the applicant’s argument that the arbitrator was perverse in her finding that the applicant was guilty of assault in the absence of video footage. This aspect becomes a non-issue in light of the witnesses’ testimony having gone uncontested.

[23] In addition to the above, the applicant in his ‘summary of the dispute’ submitted to the Labour Commissioner, it is indicated that the applicant did not beat the colleague but that he only shoved her a little and that she did not fall or get injured. The applicant has not explained how this description of the shoving of the colleague fits in with his version as put forth in the present condonation application.

[24] In my opinion, the applicant has not established that he has reasonable prospects of success on appeal. It, therefore, follows that the condonation application stands to be dismissed. Having reached the aforegoing conclusion, it is not necessary to deal with the remainder of the relief sought in the applicant’s notice of motion.

Therefore, the following orders were made;

1. 1. The applicant’s condonation for the late noting of the appeal is dismissed.
   2. There is no order as to costs.
   3. The matter is removed from the roll and regarded as finalised.