Lekgotho Phillip v Mamba Security Services

The applicant was dismissed from his employment with the first respondent in December 2020 for misconduct. His trade union, TAWUSA, referred an unfair dismissal dispute to the CCMA. After a certificate of outcome was issued, the applicant failed to refer the dispute to arbitration within the 90-day period required by section 136(1)(b) of the Labour Relations Act. The request for arbitration was served on the first respondent on 6 May 2021, approximately 17 days late (though the commissioner found it was actually 118 days late when filed with the CCMA). TAWUSA applied for condonation on behalf of the applicant, explaining that a union office bearer had forgotten to make the request timeously. The commissioner refused to condone the late request. The applicant brought an unopposed review application to set aside this ruling.

• Whether the commissioner's refusal to condone the late request for arbitration was reviewable under section 145 of the Labour Relations Act
• Whether the commissioner's decision was reasonable in applying the test for condonation
• Whether new factual allegations raised for the first time in the review application could be considered by the Court
• The proper approach to review proceedings as distinguished from appeals
• Whether negligence by a trade union representative justified condonation of delay

The review application was dismissed. There was no order as to costs.

A review court may only interfere with a CCMA ruling on condonation if it is shown to be unreasonable in the Sidumo sense—that is, so unreasonable that no reasonable decision-maker could have reached it. The reasonableness of a condonation ruling must be assessed based solely on the evidentiary material that was before the commissioner at the time the decision was made. New factual allegations that introduce an entirely new basis for delay cannot be raised for the first time in the review application and 'read into' the original condonation application. A review concerns the process and reasonableness of the decision, not its correctness, and does not permit the court to substitute its own findings merely because it might have reached a different conclusion. Where a commissioner reasonably finds that both a party and their representative bear responsibility for ensuring compliance with statutory time limits, and properly applies the legal test for condonation, the decision falls within the range of reasonable outcomes and is not reviewable.

The Court observed obiter that to the extent the applicant's union may have mishandled the applicant's case (though no finding was made that it did), the applicant was entitled to pursue a claim against the union, citing Food and Allied Workers Union v Ngcobo N.O. The Court also noted that the unopposed nature of a review application does not entitle the applicant to relief as a matter of course—the applicant retains the duty to establish reviewability on recognized legal grounds. The Court emphasized that it is not often that the Labour Court will interfere with arbitration awards or rulings given the high threshold established by the reasonableness test.

This case reinforces important principles in South African labour law regarding: (1) the high threshold for reviewing CCMA decisions under the Sidumo standard of reasonableness; (2) the fundamental distinction between review and appeal proceedings; (3) the prohibition against introducing new factual material at the review stage that was not before the original decision-maker; (4) the limits of the principle established in Cape Peninsula University of Technology v Kabengele regarding the interpretation of pleadings; and (5) the principle from PPWAWU v AF Dreyer that there are limits to relying on a representative's negligence as justification for condonation, even where the party is personally innocent. The case provides guidance on condonation applications in the context of late arbitration requests and emphasizes that both parties and their representatives bear responsibility for complying with statutory time limits.