NUMSA obo Isaac Maphoto v Diale Ntsoane N.O. and Others

The applicant, Isaac Maphoto, was employed by Otraco Southern Africa (Pty) Ltd as a Tyre Service Man and was also a NUMSA shop steward. On 20 February 2017, he sent a WhatsApp text message to the Regional Manager, Mr Louw, calling him a liar. This arose after Louw had assured the applicant that a meeting with a safety officer would not be a disciplinary process and the applicant's presence was not required, but the safety officer subsequently received a verbal warning from that meeting. The applicant was charged with serious misconduct for behaving in a disrespectful manner toward his Regional Manager by falsely accusing him of lying, rendering the working relationship irreparable. He was dismissed on 11 July 2017 after a disciplinary hearing which he did not attend. At the time of dismissal, the applicant was already sitting on a valid final written warning. On 12 October 2018, a MIBCO commissioner found the dismissal to be substantively fair. The applicant filed a review application on 11 February 2019, which was approximately two months late.

• Whether the commissioner committed a gross irregularity in finding the dismissal substantively fair
• Whether the commissioner failed to properly apply his mind to the evidence
• Whether the commissioner reached an unreasonable conclusion
• Whether the commissioner failed to appreciate the context in which the applicant called his manager a liar
• Whether dismissal was an appropriate sanction given that the prescribed sanction was a written warning
• Whether condonation should be granted for the late filing of the review application
• What are the requirements for condonation in review applications

1. The application for condonation for the late filing of the application for review is refused. 2. The application for review is dismissed. 3. No order as to costs.

In condonation applications for late filing of review applications, more stringent requirements apply than in ordinary condonation applications: the explanation for delay must be compelling and prospects of success must be strong. Without prospects of success, no matter how good the explanation for delay, a condonation application should be refused. Where an employee is sitting on a valid final written warning at the time of committing further misconduct, there is no room for the implementation of progressive discipline, which negatively impacts the prospects of success of any challenge to dismissal for that misconduct. Review applications occur after parties have already been heard and findings made, so considerations of justice, fairness and expedition require that challenges to such findings must not be delayed and must be completed as soon as possible.

The Court noted that even though the condonation application was unopposed, condonation is not for the taking and the Court must independently consider all relevant factors including the explanation for delay, reasons for delay, degree of delay, and prospects of success. The Court observed that these factors are interrelated and not individually decisive, requiring an objective conspectus of all facts. The Court also made an observation regarding costs under Section 162 of the LRA, noting the broad discretion to make appropriate cost orders in accordance with law and fairness, and concluded that in this case the interests of justice would be best served by each party bearing its own costs.

This case reinforces the stringent requirements for condonation applications in the context of review proceedings in labour matters. It demonstrates that courts apply more rigorous standards to late review applications than to ordinary condonation applications, requiring both compelling explanations for delay and strong prospects of success. The case also illustrates the principle that where an employee is already on a final written warning, progressive discipline is generally not available, which impacts the prospects of success in challenging a dismissal for further misconduct. The judgment emphasizes that condonation is not automatic even when unopposed, and courts must independently assess all relevant factors, particularly prospects of success.