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[2014] ZALAC 53
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Professional Transport Workers Union v Malema and Others (JA67/12) [2014] ZALAC 53 (7 October 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
no: JA 67/12
In the matter between:
PROFESSIONAL TRANSPORT
WORKERS UNION
Appellant
and
PAUL MALEMA
First Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION
Second Respondent
GERALDINE
DUNN
N.O.
Third Respondent
Heard:
21 February 2014
Delivered:
07 October 2014
Summary: Review of a
rescission ruling. Commissioner refusing to grant rescission of
arbitration award- commissioner not considering
good cause- Good
cause an independent ground for rescission in addition to grounds in
section 144 of the LRA. Rescission ruling
reviewable. Labour Court
correct in setting aside ruling. Labour Court not remitting matter
for arbitration but considering it.
Labour Court only considering
explanation for the delay- Labour Court incorrect in not considering
merit of the matter. Appeal
upheld- rescission ruling set aside.
CORAM:
Tlaletsi DJP, Ndlovu JA
et
Coppin AJA
JUDGMENT
TLALETSI
DJP
Introduction
[1]
The appellant is appealing against a
judgment of the Labour Court ( Molahlehi J) in a review application
brought in that court against
a ruling made by the third respondent
(the Commissioner), in which she dismissed with costs an application
for rescission of an
award granted in default against the appellant.
The commissioner was acting under the auspices of the second
respondent (the CCMA).
The appellant is in this Court with leave of
the court pursuant to a petition to this Court, after his application
for leave to
appeal was dismissed by the Labour Court with no order
as to costs.
Factual background
[2]
The
first respondent (the respondent) held the position of General
Secretary of the appellant, a trade union registered in terms
of the
Labour Relations Act (LRA).
[1]
He was also employed by the appellant. The appellant removed
the respondent from the position of General Secretary on the
ground
of allegations that he failed to ensure that the appellant, as a
trade union, complied with the provisions of the LRA. He,
however,
continued his relationship with the appellant as an employee.
[3]
It is common cause that the respondent was
subjected to a disciplinary process on allegations of misconduct. The
charges against
him were:
a.
A Refusal to obey reasonable instructions,
in that he refused to report for work on 28 April 2009.
b.
Absence without authority for 18 days.
c.
Threatening two office bearers in front of
other union officials.
d.
Fraudulent misrepresentation on Union
documents.
A practising attorney was
appointed to be the chairperson of the internal disciplinary inquiry.
The respondent was found guilty
of all these charges and the
chairperson of the disciplinary inquiry recommended that he be
dismissed from his employment. The
appellant accepted the
recommendation of the chairperson and the respondent was accordingly
dismissed.
[4]
Aggrieved by his dismissal, the respondent
referred a dispute of unfair dismissal to the CCMA. The dispute could
not be resolved
at conciliation and a certificate to that effect was
issued by the CCMA. The respondent referred the matter to arbitration
and
the matter was set down for 26 and 29 March 2010. It suffices at
this stage to mention that there was no appearance by either the
appellant or its legal representative. The arbitration nevertheless
proceeded in their absence. The respondent was called to present
his
case. He testified that his dismissal was unfair as he was
found guilty wrongly. He disputed his guilt against the charges
and
mentioned that he was not given an opportunity to present his case.
He arrived late at the inquiry and the chairperson failed
to postpone
the inquiry as required by the appellant’s disciplinary code.
His evidence was accepted as is and his dismissal
was found to have
been both procedurally and substantively unfair. The commissioner
made an award in the following terms:
‘
The
[appellant] is ordered to reinstate [the respondent] on the 1
st
May 2010, with retrospective effect.
The back pay in the
amount of 11 months x R12 000.00 = R132 000.00 should be paid to [the
respondent] within 30 days from the date
of service of the award.
No order as to costs is
hereby made.’
[5]
Aggrieved by the award, the appellant
brought an application for rescission of the award on the basis that
it was erroneously granted
in its absence. It was contended on behalf
of the appellant that it was not in wilful default as it had applied
for postponement
of the arbitration proceedings. The written
application for the postponement of the arbitration proceedings had
been prepared by
the appellant’s attorney and served on both
the respondent and the CCMA. The application for rescission was
dismissed with
costs in terms of a ruling issued by the commissioner
on 21 June 2010. It is this award which is the subject of the appeal.
[6]
Before dealing with the merits of the
appeal, there are two matters that need to be considered first. The
appellant has served and
filed an application for its failure to file
its Notice of Appeal within the prescribed period of 15 days. The
Notice of Appeal
is out of time by six days. The application is
vigorously opposed by the respondent. The reason for the delay is
that the appellant’s
attorney, after receiving an order
granting the appellant leave to appeal, was preoccupied with
obtaining instructions and making
sure that the record for the appeal
was prepared and delivered in accordance with the order of this Court
granting leave to appeal.
As a result of the attorney’s
preoccupation, he simply overlooked the fact that a Notice of Appeal
had to be filed. It was
submitted that the delay was due to a mistake
by an attorney, for which he apologises.
[7]
In opposing the application, the respondent
concedes that he is unable to dispute the reasons advanced by the
appellant for the
delay. He, however, contends that the reason
advanced is an indication that the appellant and its attorney lacked
seriousness in
prosecuting the appeal. He contends further that there
was no need for the attorney to obtain instructions on appeal since
they
had already applied for leave to appeal and had also petitioned
this Court for leave to appeal after its application was refused
by
the Labour Court. He further contends that the appellant does not
have good prospects of success on the merits of the appeal.
For these
reasons, he submitted, condonation for the late filing of the Notice
of Appeal should be refused and that the appeal,
consequently, be
dismissed.
[8]
In my view, the respondent’s
criticism of the appellant’s and its attorneys’ conduct
is understandable. However,
the delay, in the circumstances of this
case, is not excessive and the explanation therefor appears to be
bona fide
.
What remains to be considered is, whether the appellant has
reasonable prospects of success on the merits of the appeal.
[9]
The second application for condonation
relates to the appellant’s failure to serve and file a Power of
Attorney giving its
attorneys the authority and mandate to institute
and prosecute the appeal in accordance with Rule 6(1). The Power of
Attorney was
filed 17 days out of time. The reason advanced by the
appellant’s attorney for the delay is, simply, that they
overlooked
the fact that the Power of Attorney had to be filed,
because their attention and concentration was devoted to ensuring
that the
Notice of appeal, as well as the application for its late
filing had to be done in order to ensure that the appeal was
prosecuted.
It was submitted that the failure to file the power
of attorney was, therefore a
bona fide
mistake by the attorney, for which he apologises.
[10]
This application is also opposed by the
respondent. Although the respondent concedes that he does not have
knowledge of the facts
surrounding the failure to file the Power of
Attorney by the appellant’s attorney, he contends that the
attorney was grossly
negligent and inept in handling the matter. He
reiterates that the appellant does not have good prospects of success
and that he
would be prejudiced should condonation be granted,
because the matter would be unnecessarily prolonged. He prays that
condonation
for the late filing of the Power of Attorney should be
refused. It would appear that the appellant’s attorney devoted
his
attention to one aspect at a time and in the process, overlooked
compliance with other rules of this Court in preparation of the
appeal. The explanation seems to be that there was a mistake on the
part of the attorney and much cannot be said, or done about
it.
However, there has been compliance after 17 days, which, in my view,
is not excessive. It cannot be disputed that the attorney
did not sit
back and do nothing about the matter. He was busy during this period,
preparing the matter to be heard on appeal. Again,
the prospects of
success on the merits will play an important role, in deciding the
issue of condonation.
The Application for
Rescission
[11]
What follows are the undisputed facts
pertaining to failure by the appellant’s attorney to attend the
arbitration hearing
which was set down for 26 and 29 March 2010.
The appellant’s attorney had a prearranged
trip to Zambia. He was to fly out to Victoria Falls on 26 March 2010
and was scheduled
to return to Johannesburg on 29 March 2010. Acting
in terms of Rule 23 of the Rules for the Conduct of Proceedings in
the CCMA,
the attorney prepared an application for postponement of
the arbitration proceedings. The application was served on the
respondent
and filed with the CCMA per telefax 16 days prior to the
scheduled date of the arbitration. The telefax number used for
service
on the respondent’s attorneys was the same as that
reflected in the filing sheet of the replying affidavit.
[12]
According to the appellant’s
attorney, he telephoned the CCMA offices on numerous occasions on 23,
24 and 25 March 2010 to
ascertain the status of the application for
postponement and on all these occasions he was informed that the
“
CCMA system
”
was down and, as a result, they could not inform him of the status of
the application. He was further informed that it was
not possible to
check the files manually to ascertain the status of the application.
He thereafter assumed that the matter had
been postponed since his
reason for requiring the postponement was sound and further that the
application was not opposed by the
respondent.
[13]
The respondent opposed the application for
rescission. In his opposition, the respondent denied receipt of the
application for postponement.
This is surprising, because the
application was sent to the same fax number provided by the
respondent for acceptance of service
of documents. The
respondent contended further that even if such application was made
to the CCMA, the application itself
could not excuse the appellant
from attending the arbitration, unless there was a directive from the
CCMA excusing him from attending.
He further contended that the
appellant did not have any prospects of success on the merits.
[14]
In reply, the appellant contended that the
respondent’s averment that he did not receive the application
for postponement
was without merit, because it sent the application
for postponement to the same telefax number, that he used to serve
the
application for rescission of the default award, in the case of
the latter the respondent acknowledged receipt.
[15]
In refusing the application for rescission
the commissioner reasoned thus:
‘
The
applicant has submitted that the Commissioner erroneously proceeded
in the absence of the [appellant] and granted the default
award.
As I understand the
application before me, the [appellant] assumed that the application
for postponement of the two-day arbitration
was granted, without
having any substance for such a view. This has severely prejudiced
the applicant for rescission as there was
no such postponement
granted. The CCMA had arranged for a Commissioner to hear the matter
which was set down as early as the 28
th
January 2010 over
two days, 26
th
and 29
th
March 2010.
The [appellant] is
therefore unable to show that firstly the arbitrator committed any
error by proceeding with the arbitration.
Secondly, the [appellant]
was also unable to show as submitted in the founding affidavit that
the respondent was aware of the application
and agreement to same.
There was no compliance by the [appellant] with Rule 23 in terms of
which the [appellant] had sought the
application.
The [appellant] addressed
the prospects of success in the dismissal dispute by merely stating
that the dismissal was substantively
and procedurally fair. The
respondent’s opposing arguments addressed the substantive and
procedural aspects of the dismissal.
It is the duty of the
[appellant] to show that it has excellent merits in the dismissal
dispute but the [appellant] has failed
to do so.
I have considered that
the [appellant] failed to show any error on the part of the
arbitrator and that the [appellant’s] failure
to attend the
arbitration to argue for the postponement on behalf of Mr Kevin
Allardyce and merely assumed that its reasons were
adequate and
accepted by the CCMA. The [appellant] has failed to show good
prospects of success. The [appellant] had on an earlier
occasion
applied for postponement in adherence with the same rule.
In the absence of
compliance with CCMA Rule 23 dealing with postponement, I find that
the application for rescission is refused
as there was no error in
granting the default award. The [appellant] ignored the very rule in
terms of which the application was
made.’
The Review
application
[16]
The appellant sought to review the
rescission ruling by the commissioner on the ground that the decision
reached is not one that
a reasonable decision-maker could reach.
Reference was made to instances where the commissioner made incorrect
findings. The first
was the finding that the appellant could not show
that the respondent was aware of the application for rescission when,
in actual
fact, the appellant submitted proof that he served the
application on the respondent; Secondly, that the commissioner failed
to
deal with the application for postponement itself; Thirdly, that
the commissioner concluded that the appellant had no prospects
of
success in the dismissal dispute, which was incorrect, as the ruling
of the Chairperson was annexed to the replying affidavit,
which
should have alerted the commissioner that the respondent faced
serious allegations of gross misconduct and that the trust
relationship had been damaged; Fourthly, that the commissioner held
that the application for rescission was frivolous without setting
out
any basis for this conclusion.
[17]
The Labour Court made several
observations in its judgment. Those that I find most relevant in the
determination of this appeal,
given the grounds upon which the
judgment of the Labour Court below is challenged, are the following:
17.1
That it is generally accepted that unlike in the courts of law,
postponements in arbitration proceedings
are not readily granted
because of the need for speedy resolution of disputes as required by
the LRA. A strict approach is generally
adopted in the postponement
of arbitration hearings.
[2]
17.2 In
considering whether a postponement should be granted, the
commissioner had a discretion which should have
been judicially
exercised.
17.3
The [appellant] in
casu
was aware of the date of hearing and
did not seem to seek an indulgence from the commissioner, but
instructed him to postpone the
matter.
17.4
The reasons for seeking the postponement “are set out scantily
in the founding affidavit by the candidate
attorney.”
17.5
There are no reasons given why the attorney had to leave on the days
mentioned, or why he could not postpone
the Livingstone trip.
17.6 The
[appellant] has also not provided an explanation for not attending
the hearing.
The Labour Court held,
based on the above analysis, that there was no basis to
interfere with the exercise of the discretion
of the commissioner in
refusing to rescind the arbitration award, which had been granted
against the appellant by default.
[18]
The Labour Court went on to find that from
the reading of the arbitration award, the commissioner appears to
have focused his mind
only on the issue of “
erroneously
granted
” and not on “
good
cause
” and that that constituted
an irregularity, caused by the failure to apply his mind to an
important principle of law, resulting
in the appellant not being
given a fair hearing. For that reason, the Labour Court held,
the award stood to be reviewed.
Having found that the award was
reviewable, the Labour Court , nevertheless, found it unnecessary to
remit the matter to the CCMA
for consideration afresh, because doing
so, according to the Labour Court below, would be against the speedy
resolution of disputes
principle and further, that there is
sufficient material before the court to substitute the decision of
the commissioner.
[19]
The Labour Court, accordingly, proceeded to
consider whether the appellant had showed good cause in its
rescission application and
reasoned thus:
‘
It
should be apparent from the earlier discussion that the inevitable
and reasonable conclusion to draw is that the [appellant]
has failed
to show good cause. In other words the [appellant] has failed to
provide a satisfactory and reasonable explanation for
its
non-attendance at the arbitration hearing on the date which had been
set down by the first respondent. It needs to be pointed
out that the
contention of the [appellant] that attempts should have been made to
contact the [appellant] to attend the arbitration
proceedings has in
the circumstances of this case no merit and the consequences thereof
on the facts of this case would have dire
consequences for the CCMA.
Accordingly, the
applicant’s review application stands to fail. In the
circumstances of this case, I see no reason why costs
should not
follow the results.’
The Appeal
[20]
In this Court, it was contended on behalf
of the appellant that the Labour Court failed to appreciate that
“
good cause
”
constitutes, in this context, an independent ground on which to grant
rescission of a CCMA award; that the court
a
quo
misunderstood the correct legal
position when it held that “
good
cause
” was a concept infused into
each of the provisions of sec 144 (a), (b) and (c) of the LRA and
that when a party sought to
show that an award had been “
erroneously
sought or erroneously made
” in
terms of sec 144(a), the party had to show, in addition, that there
was good cause to rescind, and that the Labour Court
erred in failing
to consider the appellant’s prospects of success.
[21]
It was submitted on behalf of the
respondent that the Labour Court was correct in finding that there
was no basis to interfere with
the commissioner’s discretion in
refusing to grant the application for rescission; that the Labour
Court balanced the interests
of justice and correctly came to the
conclusion that there was sufficient material before it to consider
the issue of good cause
and, consequently, arrived at the inevitable
and reasonable decision that the appellant failed to show good cause
and, therefore,
the review application must fail. It was submitted
that the appeal should be dismissed with costs.
[22]
The central issue for determination in this
appeal is firstly, whether sec 144 of the LRA was properly
interpreted and applied in
the determination of the application for
rescission of the award of the commissioner, by both the commissioner
and the Labour Court.
Finally, whether on the facts and circumstances
of this case, rescission of the award ought to have been allowed, or
refused.
[23]
Section 144 of the LRA dealing with
rescission of arbitration awards by the CCMA commissioners provides
thus:
‘
144.
Variation and rescission of arbitration awards and rulings
Any commissioner who has
issued an arbitration award or ruling, or any other commissioner
appointed by the
director
for that purpose, may on that
commissioner’s own accord or, on the application of any
affected party, vary or rescind an
arbitration award or ruling -
(a)
erroneously sought or erroneously made in the absence of any party
affected by that
award;
(b)
in which there is an ambiguity, or an obvious error or omission, but
only to the extent
of that ambiguity, error or omission; or
(c)
granted as a result of a mistake common to the parties to the
proceedings.’
[24]
In
Shoprite
Checkers (Pty) Ltd v CCMA and Others,
[3]
this Court had the following to say in interpreting sec 144 of the
LRA:
‘
[33]
As there are circumstances which can be envisaged, such as in the
present case, and which fall outside the circumstances referred
to
section
144
of
the Act, in such cases, both logic and common sense would dictate
that a defaulting party should, as a matter of justice and
fairness
be afforded relief. It follows, that if one was to hold that
section
144
of
the Act does not allow for the rescission of an arbitration award in
circumstances where good cause is shown and that an applicant
who
seeks rescission of an arbitration award was compelled to bring the
application within the limited circumstances allowed by
the wording
of the section it could lead to unfairness and injustice. In my view,
this would be inconsistent with the spirit and
the primary object of
the Act referred to above. Furthermore
,
I am of the view that to interpret
section
144
of
the LRA 66 of 1995 so as to include “good cause” as a
ground for rescission is to give the Act an interpretation
that is in
line with the right provided for in
section
34
of
the Constitution of the Republic of South Africa, 1996 because, if
section
144
of
the LRA 66 of 1995 is not interpreted in that way, a party who can
show good cause for his default would be denied an opportunity
to
exercise his right provided for in
section
34
of
the Constitution of the Republic of South Africa, 1996, despite the
fact that he may not have been at fault for his default.
That could
be a grave injustice.
[38]
When the matter came before the Labour Court, Pillay J adopted the
approach that good cause is not a requirement in an application
for
the rescission of a decision of the CCMA and a commissioner was
obliged not to take it into account. As already shown above,
I take a
different view.
Section
144
must
be interpreted so as to also include good cause as a ground for the
rescission of a default arbitration award.
Accordingly,
a commissioner may rescind an arbitration award under
section
144
where
a party shows good cause for its default
.
In my view, this approach of interpreting the Act is in line with the
approach adopted by this Court in the
Queenstown
case,
supra
,
referred to above, particularly at paragraphs [17]–[24]
thereof. It, therefore, follows that the decision of the Labour
Court
is to be set aside.’ [own emphasis]
[25]
There is no doubt that what this Court did
in
Shoprite
was,
inter alia
,
to introduce “
good cause
”
as an independent ground for rescission in addition to the grounds
set out in sec 144 of the LRA. The Labour Court was therefore
correct
in its finding that the commissioner, in so far as she did not regard
good cause as a requirement for consideration in
the determination of
the rescission application brought by the appellant, failed to apply
her mind to an important principle of
law, which is an irregularity
in terms of sec 145 of the LRA. This finding answers the first
question in so far as it relates to
the commissioner. The award is
therefore reviewable as the Labour Court found. However, the matter
does not end there. One has
to consider whether the Labour Court
erred, or misdirected itself in considering whether the appellant had
shown good cause for
it to be granted rescission of the award,
granted in its absence. Put differently, since the Labour Court
stepped into the shoes
of the commissioner and considered whether the
appellant had made out a case on the material that was placed before
the commissioner,
we have to consider whether the Labour Court
misdirected itself in finding that the appellant had in any case not
make out a case
for good cause to be decided in its favour.
[26]
The
test for good cause in rescission applications, primarily, involves a
consideration of two factors, namely, the explanation
for the default
(whether the explanation is reasonable and
bona
fide
)
and whether the applicant had a
prima
facie
defence. In
MM
Steel Construction CC v Steel Engineering & Allied Workers Union
of SA and Others
,
[4]
it was held that while the absence of one of the two essential
elements would usually be fatal, they are not to be considered
mechanically and in isolation, but they are to be weighed together
with other relevant factors in determining whether it should
be fair
and just to grant the indulgence.
[27]
It is common cause that at the arbitration
held on 31 March 2010, the commissioner was satisfied that the
appellant had been served
with the notice of the date of the
arbitration. There was, however, no appearance on behalf of the
appellant. The commissioner
in these circumstances held that “
[i]n
the absence of any reasons, I continued and heard the [respondent’s]
version
”. The commissioner was,
however, not aware that a written application for a postponement had
been served and filed on behalf
of the appellant. The written
application for a postponement was not in the file that was presented
to the commissioner. She was
also not aware that the appellant’s
attorney had made several inquiries at the CCMA to establish the
outcome of the application
for a postponement and that he was advised
that the system was down and that it was not possible to check
manually. There was therefore
no application for a postponement for
consideration before the commissioner even though it had been served
and filed. These factors
should have, in my view, played an important
role when an application for rescission was considered by the
commissioner.
[28]
The Labour Court was correct in finding
that the commissioner focussed her mind only on the issue of
“
erroneously granted
”,
and did not consider whether “good cause” had been shown
for the application for rescission to be granted.
In doing so, the
commissioner committed an irregularity, by failing to apply her mind
to an important principle of law.
[29]
In consideration of good cause, the Labour
Court limited its inquiry to the reason for non-attendance at the
arbitration proceedings
and held that the appellant had failed to
provide a satisfactory and reasonable explanation for its
non-attendance and as such
failed to show good cause. The appellant’s
explanation for non-attendance at the arbitration is, simply, that
the attorney
was under a
bona fide
but mistaken belief that the arbitration had been postponed as a
result of the application for a postponement in terms of Rule
23 of
the CCMA Rules. The belief that the application had been granted was
based on the fact that the attorney did not receive
any opposition to
its application for a postponement, although it was properly served
on the respondent’s attorneys. Furthermore,
the attorney had on
a previous occasion made a similar application and was granted a
postponement. The appellant and its attorney
therefore, acted under
the genuine belief that since the application was unopposed, it was
sufficient to have the matter removed
from the roll and accordingly
dispensed with the need for any appearance on the scheduled day, as
happened on a previous occasion.
It is perhaps because of this
genuine belief on the part of the attorney that the appellant was not
advised to arrange for someone
to attend the arbitration.
[30]
It
is clear from the explanation given by the appellant that the blame
for non-attendance should be attributed to its attorney.
I am,
however, not convinced that the attorney in the circumstances of this
case adopted the attitude of not asking for an indulgence,
but
instructing the commissioner to grant the postponement and that the
postponement was there for the taking and deliberately
stayed away
from the arbitration. His explanation that he had on a previous
occasion followed the same procedure and was granted
the postponement
was not disputed. The attorney’s explanation on the facts of
this case is in my view
bona
fide
and reasonable. Even if the attorney was somehow negligent, I am not
of the view that the appellant should be penalised for its
attorney’s
negligence.
[5]
There is no
evidence that the appellant was aware of the circumstances relating
to its attorney and that it was supposed to arrange
for an appearance
in the absence of its attorney. The entire process was driven by the
attorney and it was the attorney, and not
the appellant, who was not
available to attend the arbitration. It was submitted on behalf of
the respondent that failure by the
appellant’s attorney to
attend the arbitration was wilful. I agree that if literally
interpreted failure to attend was indeed
wilful. However, it should
not be seen as wanton disregard for the rules or as disrespect for
the CCMA. The failure is excusable,
because of the circumstances
under which it occurred.
[31]
The Labour Court did not consider the
second element of good cause, namely, whether the appellant had
reasonable prospects on the
merits of the dispute. To this end, the
Labour Court erred as it did not apply the test for good cause as set
out by this Court
in
MM Steel
Construction Co
decision referred to
above.
[32]
Much was said about the fact that the
appellant had not set out in detail in its founding affidavit in the
rescission application
why it contended that it had good prospects of
success. The respondent, in his answering affidavit, disputed that
the appellant
had good prospects of success and pleaded his innocence
in respect of the charges against him. He accused the chairperson of
the
inquiry of procedural unfairness, in that he failed to make
rulings on several points
in limine
which
he took against the appellant. In
reply, the appellant attached copies of detailed rulings made by the
chairperson on the point
in limine
and
in respect of the disciplinary inquiry against the respondent.
[33]
It is clear from the detailed ruling by the
chairperson that he considered the circumstances relating to the
respondent’s
non-attendance at the disciplinary inquiry and
came to a conclusion that he needed to proceed with the inquiry in
his absence.
He considered the evidence presented on behalf of the
appellant on the charges of misconduct and found the employee guilty.
He
further found the misconduct charges to be so serious that the
employment relationship was irreparably damaged and that dismissal
would be the only appropriate sanction for each of the charges. I am
therefore of the view that the appellant has shown that the
respondent was dismissed pursuant to a disciplinary process and as
such there are good prospects of success. The question whether
the
conclusion by the chairperson that the dismissal was fair is an issue
that can be properly and fairly be determined at an arbitration
hearing where the versions of both parties are to be considered.
[34]
It is in my view clear from the conduct of
the appellant that it wanted to pursue its dispute with the
respondent to finality. It
is also in the interest of all the parties
that the matter be decided fairly. I am satisfied that on the
material on record the
appellant has shown good cause for rescission
of the arbitration award granted by default. The applications for
condonation for
the late filing of the Power of Attorney as well as
the Notice of Appeal should be granted. It would be in accordance
with the
requirements of the law and fairness that each party pay its
costs.
[35]
In the result, the following order is made:
a)
The applications for the condonation for
the late filing of the Power of Attorney as well as the Notice of
Appeal are granted.
b)
The appeal succeeds and the order of the
Labour Court is set aside and replaced with the following order:
1)
The arbitration award is reviewed and set
aside.
2)
The application for rescission is granted.
3)
Each party is to pay its costs.
c)
Each party is to pay its costs of the
appeal.
______________
Tlaletsi DJP
Ndlovu JA
et
Coppin AJA concur in the judgment of Tlaletsi DJP.
APPEARANCES:
FOR THE APPELLANT: Mr C E
Watt-Pringle SC
Instructed by Allardyce &
Partners
FOR THE RESPONDENT: Mr S
M Matime
Instructed
by T G Mohoje Attorneys
[1]
Act
66 of 1995.
[2]
The
court referred with approval what the court said in
Nestle
SA (Pty) Ltd v CCMA and Others
(2008) JOL 21846(LC)
at para 25.
[3]
[2007]
10 BLLR 917
(LAC) at paras 33 and 38. .
[4]
(1994)
15 ILJ 1310 (LAC) at 1311J-1312A.
[5]
Saloojee
and Another v Minister of Community Development
1965 (2) SA 135
(A) at 141B-H;
Waverley
Blankets Ltd v Ndima and Others
;
Waverley
Blankets Ltd v Sithukuza and Others
(1999) 20 ILJ 2564 (LAC) para 10;
Superb
Meat Supply CC v Maritz
(2004) 25 ILJ 96 (LAC) para 16 and
Queenstown
Fuel Distributors CC v Labuschagne NO and Others
(2000) 21 ILJ 166 (LAC) 174 E-F.