Winni v Commission for Conciliation, Mediation and Arbitration and Others

Citation: [2026] ZALCCT 46

Court: Labour Court of South Africa, Cape Town

A. Nature of Proceedings

This was an unopposed application brought before the Labour Court of South Africa, Cape Town, for the review and setting aside of an arbitration award wherein the second respondent (the arbitrator) refused an application for condonation made by the Applicant.

B. Material Facts

1. The Applicant referred a dispute to the First Respondent on 27 June 2024, alleging dismissal on that same date for reasons unknown to her.

2. The matter was scheduled for conciliation/arbitration ("con/arb") on 26 July 2024. No objection having been received, Commissioner Reagan Jacobs proceeded in default.

3. During evidence, it emerged that the actual date of dismissal was 15 January 2024, not 27 June 2024 as averred. Commissioner Jacobs accordingly ruled on 2 August 2024 that the referral was filed outside the time prescribed by section 191(1)(b)(ii) of the Labour Relations Act 66 of 1995 ("the LRA") and directed the Applicant to apply for condonation.

4. The Applicant applied for condonation on 8 August 2024. An *in limine* hearing on the papers was scheduled for 7 October 2024.

5. The Applicant contended:

   - (a) She was dismissed on 6 December 2023 and referred the matter on 27 June 2024, rendering the referral approximately six months late;

   - (b) She remained in contact with her employer and was led to believe she would be recalled;

   - (c) She possessed prospects of success, having been dismissed without fair reason or procedure;

   - (d) She remained unemployed and thus unable to meet her responsibilities as a breadwinner;

   - (e) The Third Respondent contended she had signed an independent contractor's agreement, which she disputed, averring the signature had been copied and pasted.

6. The employer opposed, contending there was no dismissal but rather that the Applicant was an independent contractor whose contract terminated on 31 January 2024, and that audio evidence proved she understood the terms of her appointment.

C. The Arbitrator's Award

At paragraph [8], the arbitrator relied upon *McCann Worldgroup SA (Pty) Ltd v Landman and others* [JR 48/19] [2020] ZALCJHB 194, endorsing the principle that:

> "where there is a delay with no reasonable, satisfactory and acceptable explanation for such delay, condonation may be refused without considering prospects of success, to grant condonation where the delay is not explained, may not serve the interests of justice, that the expeditious resolution of labour disputes is another fundamental consideration..."

The arbitrator concluded:

- It was more probable than not that the applicant had committed the misconduct complained of, constituting dishonesty;

- The delay was excessive and the reasons proffered were neither comprehensive nor persuasive;

- Because the Applicant was legally represented, a greater onus rested upon her to ensure timeous referral;

- Strangely, whilst acknowledging a dispute of fact, he indicated that "on the papers the respondent's version is more probable" (paragraph [10]);

- Most concerningly, he found the referral was only made on 8 August 2024, which he regarded as indicative of the Applicant's lack of urgency (paragraph [11]).

D. Grounds of Review and Applicable Legal Principles

1. **Jurisdictional Determination *De Novo***: As held in *Moses v Commission for Conciliation, Mediation and Arbitration and Others* (2019) 40 ILJ 2371 (LC) at paragraphs 11 and 12, citing *SA Rugby Players' Association and Others v SA Rugby (Pty) Ltd and Others* (2008) 29 ILJ 2218 LAC at paragraph 39 and *Phaka and Others v Bracks NO and Others* (2015) 36 ILJ 1541 (LAC) at paragraphs 29 and 31:

> "When the jurisdiction of an arbitrator is in question, the issue for determination is whether he or she objectively had jurisdiction in law and fact because a finding that the arbitrator had jurisdiction, because he or she might reasonably have assumed as much, 'is wholly untenable in principle'... The Court must decide the issue of jurisdiction *de novo* on the basis of the record filed in the review proceedings."

2. Test for Interference with Discretionary Decisions

In Parliament of the Republic of South Africa v CCMA and Others (C646/16) [2018] ZALCCT 12 at paragraph 13, it was held:

This Court accepts that when considering applications for condonation, Commissioners enjoy a wide discretion, and the Courts should be cautious when interfering with decision arrived at by Commissioners in the light of that wide discretion. The applicable test before the Court can interfere with a Commissioner's discretionary decision is whether or not it can be said that the discretion was exercised 'capriciously, or upon a wrong principle, or in a biased manner, or for insubstantial reasons. Thus, the test is whether the Commissioner committed a misdirection, an irregularity, or failed to exercise his or her discretion, or exercised it improperly or unfairly.'"

3. Further Guidance on Discretion

Cowley v Anglo Platinum and Others [2016] JOL 35884 (LC) at paragraph 21 provides:

"When a Commissioner is endowed with a discretion this court will be very slow to interfere with the exercise of that discretion. The commissioner's exercise of discretion would be upset on the review if the applicant shows, *inter alia*, that the Commissioner committed a misdirection or irregularity, or that he or she acted capriciously, or on the wrong principle or in bad faith or unfairly or that the exercise seeing the discretion the Commissioner reached a decision that a reasonable decision-maker could not reach. If it is clear that the commissioner exercised such discretion judiciously and fairly after taking into consideration all the relevant facts, this court will not interfere with the exercise of such discretion."

E. Court's Evaluation and Findings

1. Factual Errors by Arbitrator

At paragraph [15], the Court noted:

"It is apparent that the arbitrator did not have the full facts available to him or perhaps did not have the First Respondent's file before him when he made the condonation ruling. He makes no reference to the fact that a con/arb was scheduled and held on 26 July 2024 nor of the jurisdictional ruling made on 2 August 2024 by Commissioner Jacobs."

2. Incorrect Finding on Urgency

The Court held at paragraph [16]

 "His finding therefore that the Applicant had no urgency is patently incorrect on the facts before this Court and thus before him. The referral was made on 27 June 2024 on an incorrect dismissal date of 27 June 2024. This is a layperson's error, and the correct consideration would have been to assess whether a reason is given for the late referral... She only received the ruling from Commissioner Jacobs on 2 August 2024 and applied for condonation on 8 August 2024. That is neither an unreasonable nor excessive delay."

3. Prospects of Success

The Court found at paragraph [17]:

"Once again, the arbitrator clearly did not consider the uncontested evidence of the Applicant that was led before Commissioner Jacobs. His findings on prospects are therefore incorrect. The Applicant does have prospects of success; the employer has not addressed any of the other factors relevant to the consideration of whether condonation ought to be granted."

4. Applicable Factors for Condonation

Citing SAMWU obo Shongwe and Others v Moloi N.O. and Others [2021] 5 BLLR 464 (LAC) at paragraph 26 and Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC), the Court restated at paragraphs [18]–[19] that:

"The grant or refuse of condonation is a discretionary power that has to be exercised with circumspection and only in exceptional circumstances because of a litigant's constitutional rights in terms of section 34 of the Constitution of the Republic of South Africa, 1996... to have any dispute that can be resolved by application of law decided in a fair public hearing before a Court... The factors a Court must consider are the length of the delay; the explanation for, or cause for, the delay; the prospects of success for the party seeking condonation; the importance of the issue(s) that the matter raises; the prejudice to the other party or parties in granting or not granting the relief requested and not considering the merits of the dispute; the effect of the delay on the administration of justice; the litigant's rights in terms of section 34 of the Constitution... and ultimately the interests of justice."

F. Disposition

The Court, being satisfied that the arbitrator failed to exercise his discretion judiciously and fairly after taking into consideration all relevant facts, and that there was "no material connection between the arbitrator's findings and the evidence and the result" (paragraph [21]), granted the following order:

1. The condonation ruling issued by the Second Respondent is reviewed and set aside;

2. The Applicant is granted condonation for the late filing of the referral to the First Respondent;

3. The First Respondent is directed to reschedule the matter for arbitration before a Commissioner other than the Second Respondent;

4. There is no order as to costs.