IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG CASE NO J3833/98
In the matter between:
MAGALIES WATER BOARD Applicant
LA GRANGE, R NO
THE COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Second Respondent
THULARE, PIET Third Respondent
On 25 November 1997, the Applicant dismissed the Third Respondent for alleged
The fairness of that dismissal was disputed and notwithstanding the fact that it was dated
26 November 1997, the form 7.11 in terms of which that dispute was referred to the Second
Respondent for conciliation in terms of section 135 of the Labour Relations Act 1995 (“the Act”),
was received by it only on 29 December 1997.
Section 191(1) of the Act requires any such referral to be made within a period of thirty days
of the date of dismissal, subject to condonation by the Commission of late referral on good cause
shown. The fact that the referral in question was received by the Second Respondent some four
days late, is not in dispute.
On 27 January 1998 the Commissioner presiding at the conciliation meeting convened
between the parties that day issued a Certificate of Outcome recording that the dispute remained
unresolved. It is common cause that neither the Applicant, nor the Third Respondent nor the
Commissioner himself, raised the issue that the referral to the Second Respondent was out of
time and that no application for condonation of that late referral was made by or on behalf of the
.On 10 February 1998 a request for arbitration in terms of section 136 of the Act was made
on behalf of the Third Respondent by his Trade Union and the arbitration was held before the First
Respondent in his capacity as a Commissioner of the Second Respondent on 14 July and 21
August 1998. Once again, at no stage of the arbitration hearing was the issue of the late referral
of the dispute to the Second Respondent for conciliation raised by either party or by the
Commissioner and as before, no application for condonation was made.
On 5 October 1998 the First Respondent issued his award, in terms of which the dismissal
of the Third Respondent was declared to be substantively unfair and the Applicant was ordered to
reinstate him retrospectively to 1 July 1998 and to pay him his remuneration for the intervening
period, subject to his reporting for work within fourteen days and acknowledging receipt of a final
written warning for unauthorised absence from his workplace.
The first of three applications now before this court, was launched by the Applicant on 2
December 1998. It sought therein the review and setting aside of the First Respondent’s
arbitration award on two main grounds, firstly that neither he nor the Second Respondent had the
necessary jurisdiction to conciliate and arbitrate the dispute in the face of its late referral to the
Second Respondent and secondly that in any event, the award could not stand in the face of a
number of alleged derelictions on the part of the First Respondent to which, as far as is
necessary, I will make further reference later in this judgment.
The application was opposed by the Third Respondent who, in the face of the first of the
grounds of review referred to, made application to the Second Respondent on 21 February 2000
for condonation of the late referral to it of his dispute with the Applicant. The application for the
review of the arbitration award was, by agreement, postponed sine die pending the determination
by the Second Respondent of that condonation application.
On 7 June 2000, the Second Respondent informed the Third Respondent’s attorneys in
writing that condonation of the late referral for conciliation could not be considered as “the
commission’s functions are functus officio”. What will be required, they were told, was a “consent
to nullifying the process, or applying to the Labour Court to set aside the Certificate of Outcome
(and all subsequent processes) in order for it to consider the condonation application”.
. On 14 August 2000, the Third Respondent launched the second of the applications above
referred to, in this instance an application to set aside the Second Respondent’s refusal to
consider the application for condonation of the late referral in question. This was not opposed by
the Applicant which however early in October 2000 unsuccessfully attempted to amend the relief
sought by it in the first application by the addition of a prayer to the effect that the Certificate of
Outcome be set aside by this court.
. The third application, launched by the Applicant on 23 October 2000, sought, in effect,
condonation of its omission to include, in its original review application, an application for the
review of the Certificate of Outcome issued under the auspices of the Second Respondent and
permission to raise “as a ground for review in this matter, the issue of such certificate in terms of
section 135(5)”. That application was opposed by the Third Respondent on the grounds that the
second review application was an adequate response thereto and should be determined before
the merits of the first and third applications were considered by this court. There is agreement
between the parties that this is the sequence which should be followed and I will deal first
therefore with that application in which, as stated, the Third Respondent seeks the review and
setting aside of the Second Respondent’s refusal to entertain his application for condonation of
the late referral to it of his dispute with the Applicant.
. This court was required to deal with an issue virtually on all fours with that now under
Fidelity Guards Holdings (Pty) Ltd v Epstein and Others (2000) 21ILJ 2009 (LC)
The Applicant in that matter contended that the arbitrating Commissioner had lacked jurisdiction to
entertain the dispute in question because the dispute had been referred for conciliation outside
the time limit prescribed by the Act and the late submission had not been condoned. The court
perceived “a pernicious practice” whereby an employer, faced with a late referral of a dispute with
it for conciliation in terms of the Act:
“… elects not to raise any complaint, anticipating that at the conciliation hearing no question of
condonation will arise. The employer fails to conciliate on the merits of the dispute, allows a
certificate that the dispute remains unresolved to be issued without demur and engages in the
arbitration that follows, again without raising any question about the time when the dispute was
referred. Then, if unsuccessful in the arbitration, the employer approaches the Labour Court …
contending that the arbitrator had no jurisdiction in the first place …. Obviously this practice which
is unconscionable and borders on fraud, frustrates the purposes of the Act. The question which
arises is whether it is nonetheless permissible because the jurisdiction of the arbitrator flows from
a timeous referral. An Applicant who is out of time should, after all, know his rights, apply for
condonation, remedy the situation and, if he fails to do so, has no one else to blame but himself.
The employer and his advisers cannot be blamed for taking advantage of the Applicant’s
ignorance or oversight. For the reasons that follow I find myself in respectful disagreement with
those cases in which it has been said that the arbitrator’s decision is dependent upon a timeous
referral. The jurisdictional fact to my mind is the section 135(5) Certificate … As I read the section
the Commission is enjoined by the Act to arbitrate the dispute at the request of the employee if a
Commissioner has certified that the dispute remains unresolved. It is that certification which
constitutes the necessary jurisdictional fact. It confers jurisdiction. The Commissioner who issues
the certificate performs an administrative act which has important consequences. Once he or she
has so acted, then, to my mind, unless the administrative act is reviewed and the certificate set
aside, the Commissioner is obliged to proceed with the arbitration. The section could not make
this clearer. It uses the imperative form ‘must’ to describe the duty to arbitrate the dispute”.
. An appeal against that decision to the Labour Appeal Court was dismissed in
Fidelity Guards Holdings (Pty) Ltd v Epstein NO and Others (2000) 21ILJ 2382 (LAC),
Zondo JP, at 2387, said this
“In my view the language employed by the legislator in s191 is such that, where a dispute about
the fairness of a dismissal has been referred to the CCMA or a Council for Conciliation, and the
Council or Commissioner has issued a certificate in terms of s191(5) stating that such dispute
remains unresolved or where a period of thirty days has lapsed since the Council or the CCMA
received the referral for conciliation and the dispute remains unresolved, the Council or the
CCMA, as the case may be, has jurisdiction to arbitrate the dispute. That the dispute may have
been referred to the CCMA or Council for Conciliation outside the statutory period of thirty days
and no application for condonation was made or one was made but no decision on it was made
does not affect the jurisdiction to arbitrate as long as the Certificate of Outcome has not been set
aside. It is the setting aside of the Certificate of Outcome that would render the CCMA or the
Council to be without jurisdiction to arbitrate”.
. The most recent pronouncement on the issue is to be found in
Transport & General Workers Union and Others v Coin Security Group (Pty) Ltd (2001)
in which Basson J at 990 said the following:
“Section 157(4)(b) of the LRA declares that the Certificate of Outcome of dispute constitutes
‘sufficient proof’ of the fact that an attempt has been made to resolve the dispute through
conciliation. In casu such certificate had indeed been issued in terms of s136(1)(a) of the LRA.
Further the Respondent has not sought an order to review and set aside the Certificate of
Outcome in casu on the basis of an alleged defective referral. The Respondent also did not raise
the issue of a defective referral at the conciliation proceedings before the CCMA. The
Respondent therefore failed to raise its objections timeously. It is clear that such certificate
remains valid until it is set aside by a competent court. It is therefore not open to attack the
validity of the conciliation proceedings at the stage of the hearing of the dismissal dispute in the
. The Appeal Court, in Fidelity Guards, left open the issue of the stage at which any
challenge to the validity of the Certificate of Outcome must be mounted but did not expressly
disassociate itself with the following remarks of Pillemer AJ in the court a quo on that issue
“The certificate has a whole range of consequences under various sections of the Act. If its
validity is to be challenged, that challenge must itself be timeous i.e. within a reasonable time,
which, given the nature of the process and the consequences of the issue of the certificate of non-
resolution will inevitably be a short period and take place before further steps occur relying upon
its issue. This is particularly so if the further steps take place with full participation and without
. That is precisely what occurred in the present case. The attack upon the validity of the
Certificate of Outcome of 27 January 1998 was raised by the Applicant for the first time in its first
application for the review of the Third Respondent’s award.
. In the light of this convoluted set of background facts and the authorities to which I have
referred, it seems to me that the application with which I am now dealing, namely that of the Third
Respondent for the review of the Second Respondent’s refusal to consider his application for
condonation of the late filing of his referral, serves no purpose. The passivity of the Applicant in
the ensuing process of dispute resolution which culminated in the issue of the First Respondent’s
award, renders that application unnecessary. Its subsequent challenge to the arbitrator’s
jurisdiction, premised upon the technical invalidity of the Certificate of Outcome, is precisely the
type of practice classified by Pillemer AJ in the Fidelity Guards case in this court, is
unconscionable, bordering on fraud and frustrating the purposes of the Act.
. For all of these reasons, I can find no basis to interfere with the Second Respondent’s
rejection of the Third Respondent’s application to it for condonation or with its express view that it
was “functus officio” and the Third Respondent’s application to this court for the review of that
decision is therefore dismissed. It will follow that the First Respondent’s jurisdiction to arbitrate
the dispute on the basis of that certificate, is not open to question and that if his award is
reviewable, that can only be upon the second of the grounds submitted in the Applicant’s first
review application, that is to say, inter alia, that his determination was irrational and not justifiable
in relation to the reasons given therefor. I accordingly turn now to that issue.
. The Third Respondent was charged with, and was found guilty of, contravening sections 7
and 32 of the Applicant’s Disciplinary Code and Procedure, the first relating to “unauthorised
absence from workstation whilst on duty” and the second to “intimidation of other employees”.
The Code incorporate guidelines relating to offences and maximum penalties, in terms of which
the first of the offences referred to is classified as “serious misconduct” and is normally proceeded
by a written warning, followed by a final written warning before a disciplinary hearing is conducted,
whilst the second is classified as a “dismissible offence” warranting an immediate disciplinary
. The fact that the Third Respondent was absent from his workplace without permission,
authorisation or proper explanation from 17 November 1997 to 24 November 1997 was not
disputed, nor was it in issue that when he returned to work on 24 November 1997 he made no
attempt to explain his absence and that it was only when he was confronted with that alleged
misconduct that he contended that he was ill and undertook to produce a doctor’s certificate,
which however, he failed to do.
. At the time of his dismissal, the Third Respondent had received a number of final written
warnings relating to different aspects of the Applicant’s disciplinary code. These, the most recent
of which was dated 27 August 1997, (the Applicant having been dismissed on 25 November 1997)
related variously to charges of insubordination, abandoning his job and wilful damage to property.
He also carried several warnings relating to inadequate work performance, work attendance and
. In the course of his award, the First Respondent comprehensively examined the evidence
presented by both sides in the arbitration. He concluded that the Third Respondent’s account of
his absence was unconvincing and that it “seems more plausible that he did not obtain or attempt
to acquire authorisation for leaving his workstation”. He was, it was found, aware of the necessity
for him to have done so.
. The First Respondent then proceeded to consider, with commendably careful analysis,
whether breach of the rule in the instance in question justified the Third Respondent’s dismissal.
That analysis extends over three pages and twelve paragraphs of the award. He concluded that
in all the circumstances of the matter as reviewed by him on the basis of the evidence before him,
the Third Respondent’s misconduct did not constitute a dismissible offence and that he was
compelled in the circumstances to order reinstatement.
. The graveman of the Applicant’s complaint in that regard is the First Respondent’s finding
that, although not in his opinion appropriate in this matter, breach of the disciplinary rule in
question could, in a proper case, justify fair dismissal. He found moreover that the final written
warning of 27 August 1997 was valid and binding and was issued in connection with their related
offence. Whilst the Third Respondent’s misconduct in the circumstances was “serious cause for
concern” and indicated difficulty “in accepting authority of management in the workplace” the First
Respondent, inexplicably in the view of the Applicant, nevertheless determined his dismissal to be
. The First Respondent’s finding that on the evidence before him, the Third Respondent had
in fact been ill as alleged by him was vigorously challenged in the pleadings and in the course of
argument. But the fact that remains is that there is nothing, in his analysis and reasoning in
relation to the evidential material before him, that supports the contention that in reaching his
conclusions, he did not properly apply his mind to that evidence or that, specifically in relation to
the eventual supporting evidence of the doctor’s certificate, and the mitigating factors diminishing,
in the First Respondent’s view, “the seriousness of the infraction”, his conclusion were not
justifiable. Justifiability does not mean that another forum or another adjudicator might not, on that
evidence, have reached a different conclusion. That is the applicable principle in appeal, as
opposed to review, proceedings.
. It is apparent from his overall approach to the matter, that the First Respondent was
sensitive to and adopted the principle enunciated in
J D Group v De Beer (1996) 17ILJ 1103(LAC)
in which the court cited with approval, the following principle:
“… the purpose of our law is not to provide for the punishment of wrongdoers … but rather to
correct behaviour and thereby, whenever reasonably possible, ensure the continuation of the
That view was endorsed by Cheadle et al in Current Labour Law, JUTA (1993) where, at page
10, the following is stated
“… although dismissal may be an appropriate disciplinary measure in certain circumstances, the
aim of a disciplinary system in the workplace should be to correct the behaviour of employees
rather than simply to dismiss them”.
. That this was the approach adopted and conclusion reached by the First Respondent is
evidenced in these comments in paragraph 31 of his award
“In this sense I would view the pattern of his behaviour as that which would be equivalent to
someone who has disregarded procedures and/or instructions to the point where a final warning is
in order to the effect that a failure to obey a further rule or instruction could result in dismissal,
coupled with a period of suspension without pay. Clearly, if Mr Thulare wishes to remain
employed by the Board for any length of time and to avoid further serious disciplinary action he
will need to alter his approach towards managerial authority and compliance with workplace
. In the result, the Third Respondent was reinstated with partial, and not full, retrospective
effect and with a final written warning relating to his unauthorised absence and his disregard of
rules and regulations. There is in my view nothing in the substance and/or the conclusions
reached in the First Respondent’s award to that effect which would render it vulnerable or open to
challenge in terms of section 145 of the Act.
. For these reasons I make the following order:
The application for the review and setting aside of the First Respondent’s award in the
Second Respondent’s case number GA23280 dated 14 October 1998, is dismissed.
2 The Applicant is ordered to pay the Third Respondent’s costs.
B M JAMMY
Acting Judge of the Labour Court
21 November 2001
el, instructed by Snyman Van Der Heever Heyns
on, instructed by Cheadle Thompson & Haysom.