Enzo Panelbeaters CC v Nair (JA70/99) [2000] ZALAC 16 (29 June 2000)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2000
>>
[2000] ZALAC 16
|

|

Enzo Panelbeaters CC v Nair (JA70/99) [2000] ZALAC 16 (29 June 2000)

IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO: JA 70/99
In
the matter between:
ENZO
PANELBEATERS CC Appellant
and
SHEREEN
CECILIA NAIR Respondent
JUDGMENT
NUGENT
AJA:
[1] This
appeal relates to an arbitration award that was made in terms of
s.191
of the
Labour Relations Act 1995
. The award declared that the
respondent had been unfairly dismissed, and ordered the appellant to
pay compensation to her in the
sum of R30 000, which was the
equivalent of twelve months’ remuneration. The award was made an
order of the Labour Court on 17
December 1998. The appellant
applied to the Labour Court to rescind that order, and in a separate
application, it applied to set
aside the arbitrator’s award. Both
those applications were dismissed. The appellant now appeals against
both decisions, with
leave granted on petition to the Judge
President.
[2] In
order to appreciate the nature of the issues that arise in this
appeal, it is necessary to outline the circumstances in which
the
applications to the court a quo arose.
[3] The
respondent was employed by the appellant until 15 January 1997, when
her employment terminated in circumstances which are
in dispute.
Alleging that she was unfairly dismissed, the respondent referred the
dispute to the Commission for Conciliation, Mediation
and
Arbitration, as provided for in
s.191
of the Act, and in due course
an arbitrator was appointed to resolve the dispute.
[4] The
arbitrator who was first appointed allocated 16 July 1998 for the
conduct of the arbitration. On that day the appellant failed
to
appear, and the arbitration was postponed. A second arbitrator was
appointed, who allocated 7 August 1998 for the conduct of
the
arbitration. Again the appellant failed to appear, and the
arbitration proceeded in its absence. The respondent gave evidence
before the arbitrator. She said that on 15 January 1997 she had been
ill, and her husband had telephoned a certain Mr Bester, who
performed managerial functions for the appellant, and advised him
that she would not be at work that day. A little later, Mr Bester
telephoned the respondent at her home, and asked her why she was not
at work. She asked him whether her husband had telephoned to
inform
him that she was ill, and Mr Bester replied in the affirmative, but
asked why she had not telephoned herself. He then said
that she
should not return to work, and she would be paid until the end of the
month. When she asked whether she was being dismissed,
he replied in
the affirmative. She subsequently received a cheque for the moneys
that were due to her until the end of the month.
[5] On
the basis of that evidence the arbitrator found that the respondent
had been unfairly dismissed, and he awarded her compensation
in the
sum of R35 080,65, which was the equivalent of her remuneration from
1 June 1997 to the date of the arbitration. He calculated
the
compensation from 1 June 1997 because he considered that her delay in
pursuing her remedies until then had been unreasonable.
[6] On
8 September 1998 the appellant wrote to the arbitrator, explaining
why it had not been represented at the arbitration, and
requesting
him to “rescind” his award. Shortly thereafter, on 22 September
1998, the appellant’s attorneys filed an application
to the Labour
Court to set aside the award. That application was not pursued,
because shortly after it had been filed, the arbitrator
wrote to the
appellant’s attorneys, informing him that he intended to “rescind”
his award, because he had misinterpreted his
powers in relation to
the amount of compensation that he was entitled to award, and that he
had scheduled a rehearing of the matter
for 5 October 1998.
[7] I
should interpose at this stage to observe that, generally, once an
arbitrator has made an award, he or she is functus officio,
and may
not thereafter “rescind” the award other than in the
circumstances provided for in
s.144
of the Act, unless with the
parties’ consent. It is not necessary in the present case to
consider whether the provisions of that
section entitled the
arbitrator to withdraw his award, for neither party has sought to
rely upon the original award. On the contrary,
the appellant, who
was the party adversely affected, expressly asked the arbitrator to
withdraw the award, and the respondent raised
no objection. The
arbitrator duly withdrew his award on 5 October 1998, without
objection from any of the parties, and proceeded
to hear the matter
afresh.
[8] On
that occasion the appellant’s representatives and the respondent
were present. At that hearing the respondent repeated
her earlier
evidence, and the owner of the appellant and Mr Bester, also gave
evidence. They said that Mr Bester had indeed telephoned
the
respondent on the day in question, and had asked her why she was not
at work. Mr Bester said that he told her that if she needed
the
rest of the month off, the appellant would pay her until then. He
said that when she asked to be paid the moneys that were
due to her,
he assumed that she was thereby resigning, and he denied that she was
dismissed. The arbitrator disbelieved that evidence,
and found that
the respondent had indeed been dismissed, in the manner which she had
described in her evidence. He concluded that
her dismissal had been
unfair, both substantively and procedurally, and he awarded
compensation to her in the sum of R30 000, which
was the equvalent of
twelve months’ remuneration.
[9] On
21 October 1998 the respondent filed an application to the Labour
Court for the award to be made an order of that court. On
6 November
1998 the applicant filed an application to the Labour Court for an
order reviewing and setting aside the award.
[10] The
appellant did not oppose the application by the respondent to have
the award made an order of court. According to the appellant,
it was
advised by an unnamed labour consultant that it was not necessary for
it to do so, in view of the fact that the appellant
had filed an
application to review the award. The appellant also alleged that
when it received a notice from the Registrar informing
it that the
application had been set down on the unopposed roll, its labour
consultant telephoned the Registrar and advised him that
the award
was the subject of an application for review, whereupon the Registrar
told the labour consultant that the matter would
be removed from the
roll.
[11] In
fact, the matter came before the Labour Court on 17 December 1998.
Needless to say, the appellant was not present to oppose
it, and the
award was made an order of court.
[12] That
prompted the appellant to bring an application to rescind the order.
That application, and the application that had been
brought earlier
to set aside the award, were heard simultaneously by De Villiers AJ,
and her decisions are the subject of this appeal.
The learned judge
was of the view that there were no proper grounds to rescind the
order that had been made on 17 December 1998,
more particularly
because the appellant had not shown good cause for its failure to
oppose the granting of that order, and she dismissed
that
application. Having dismissed that application, she apparently
considered the application to set aside the award to be academic,
and
she dismissed that application too, without considering its merits.
[13] Because
of the view which I have taken of the matter, it is not necessary to
consider whether the learned judge correctly found
that the appellant
had not shown good cause for failing to oppose the granting of the
order that was made on 17 December 1998.
The appellant’s counsel
accepted, in my view correctly, that unless there was merit in the
application to set aside the underlying
award, then the application
to rescind the order was in any event bound to fail, irrespective of
whether the appellant had shown
good cause for its default, and the
matter was argued on that basis.
[14] In
argument before us, three grounds were advanced for setting aside the
award. Firstly, it was submitted that the arbitrator,
having
withdrawn his earlier award, should not have heard the matter again,
for to do so created not only a reasonable apprehension
that he might
be biased against the appellant, bearing in mind the terms of his
earlier award, and it also created an actual risk
that he would not
have an open mind on the matter. In my view there is no merit in
that submission. At no stage before, or during,
the arbitration did
the appellant even suggest to the arbitrator that he should recuse
himself, or that the appellant feared that
he might not bring an open
mind to bear on the matter. In my view it is not open to the
appellant to contend only in retrospect
that it entertained the
alleged apprehension that is now sought to be relied on.
[15] The
second ground which was relied upon for setting aside the award was
that the appellant’s witnesses had not been placed
under oath at
the time they gave their evidence. If that was an irregularity, it
can hardly be said to have caused prejudice to
the appellant, and
there is no merit in that objection.
[16] Finally,
it was submitted that the arbitrator acted irregularly, in that he
inhibited the appellant from cross examining the
respondent. It must
be borne in mind that an arbitration that is conducted in terms of
the
Labour Relations Act is
not required to be conducted as if it was
an adversarial trial. An arbitrator has a discretion to conduct
the proceedings in a
manner that he considers appropriate in the
particular circumstances, in order to deal with the substantial
merits of the dispute
with the minimum of legal formalities
(s.138(1)
of the Act). While he or she is required to allow adequate
opportunity to the parties to properly present their respective cases
by presenting evidence, questioning witnesses, and advancing argument
(s.138(2))
, the extent to which this is allowed in any particular
case remains in the discretion of the arbitrator. The very nature of
such
an arbitration might often require the arbitrator to adopt an
inquisitorial role, particular if the parties are unrepresented.
Although
the record of the arbitration is somewhat incomplete, I can
find nothing to suggest that the arbitrator did not properly exercise
his discretion, and the allegations made by the appellant are so
generalised as not to establish, in my view, that the arbitrator
erred in any material respect. I might only add that the
probabilities were so overwhelmingly in favour of the respondent,
that
it is difficult to see what could have been elicited by any
greater latitude for cross-examination. In my view the appellant
has
not shown that the arbitrator acted irregularly.
[16] In
my view there are no proper grounds for setting aside the award. In
those circumstances there was also no basis for rescinding
the order
that was made by the court on 17 December 1998, irrespective of
whether the appellant had acceptable reasons for not opposing
that
application. Accordingly the court a quo correctly dismissed both
applications, and the appeals against both the decisions
must fail.
The respondent was not represented in this appeal, and it is
appropriate in those circumstances that no order should
be made in
relation to costs.
The
appeals against both the decisions that were made by the court a quo
are accordingly dismissed.
R.W. NUGENT
ACTING JUDGE OF
APPEAL
R.M.M. ZONDO
JUDGE
PRESIDENT
C.R.
NICHOLSON
JUDGE
OF APPEAL
For
the appellant: Adv. R Venter
Instructed by
Gavin
Joynt & Krynauw Attorneys, Pretoria.
For
the Respondent: In Person
Date
of Hearing: 22 June 2000
Date
of Judgment: 29 June 2000