About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2017
>>
[2017] ZALAC 74
|
|
Computer Storage Services Africa (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (CA7/2016) [2017] ZALAC 74 (30 November 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: CA7/2016
In the matter between:
COMPUTER
STORAGE SERVICES AFRICA (PTY) LTD
Appellant
and
COMMISSION FOR CONCILIATION
MEDIATION
AND
ARBITRATION
First Respondent
JOHN
M SIAVHE
Second Respondent
MOHAU
NTAOPANE
Third Respondent
VERONA
BOWIE
Fourth Respondent
Heard:
28 November 2017
Delivered:
30 November 2017
Summary:
Employee
referred unfair suspension dispute to the CCMA for determination.
Arbitration award granted in default in the absence of
the employer.
Suspension found to be unfair and employee ordered to return to work.
Application for rescission of default judgment
refused. Award and
rescission ruling taken on review. Review application out of time.
Condonation for the late filing of the review
of rescission ruling
refused and review application dismissed with costs. On appeal the
decision of the Labour Court upheld. Appeal
dismissed with costs.
Coram:
Musi JA, Coppin JA and Savage AJA
JUDGMENT
SAVAGE AJA
Introduction
[1]
This
is an appeal against the judgment of the Labour Court (Van Niekerk
J), with the leave of that Court, in which the appellant’s
application to condone the late filing of its review application was
dismissed with costs, including the reasonable accommodation
and
travel costs of the fourth respondent’s attorney from
Johannesburg to Cape Town on 16 September 2015.
[2]
The
fourth respondent, Ms Verona Bowie, was employed in Johannesburg by
the appellant, Computer Storage Services Africa (Pty) Ltd.
She
referred an unfair suspension dispute to the first respondent, the
Commission for Conciliation Mediation and Arbitration (CCMA).
The
appellant failed to attend the ensuing arbitration hearing and the
arbitration proceeded in default in its absence. On 31 March
2014,
the second respondent (the first commissioner) issued a default
arbitration award in which it was found that the employee
had been
unfairly suspended without pay. The appellant was ordered to pay the
employee outstanding remuneration for the months
of January, February
and March 2014, with Ms Bowie reinstated for the month of April 2014.
[3]
The
appellant applied for the rescission of the default arbitration
award, which application was refused by the third respondent
(the
second commissioner) on 13 June 2014. The second commissioner found
that the appellant had not explained why it had not received
the
notice of set down; that its claim that the employee was a consultant
and that no employment relationship existed between the
parties was
without merit given the provisions of s200A of the Labour Relations
Act 66 of 1995 (the LRA); and that Ms Bowie would
be prejudiced if
rescission were to be granted given that she had been without salary
since 23 January 2014.
Judgment of the Labour Court
[4]
On
review to the Labour Court, the appellant sought the setting aside of
both the rescission ruling and default arbitration award.
The
application to review the default arbitration award was some 14 weeks
late. However, the appellant only sought condonation
for the 20-day
delay in filing its application to review the rescission ruling.
[5]
Mr
Corne Pretorius, an official of an employers’ organisation
representing the appellant, deposed to an affidavit in support
of the
appellant’s condonation application, with no confirmatory
affidavit filed by the Chief Executive Officer (CEO) of
the
appellant. Mr Pretorius explained the delay in launching the review
application on the basis that, following receipt of the
rescission
ruling, attempts were made to obtain proof from the CCMA that the
notice of set down had been received by the appellant,
but that,
“
despite
numerous telephonic requests during the month of July and August
2014
”,
the CCMA was unable to provide proof of registered postage. After Mr
Pretorius became aware that the six-week period within
which to file
a review application had lapsed, the appellant’s attorneys were
instructed to file the application which was
by then 20 days late,
when calculated from the date of the rescission ruling. Mr Pretorius
continued that the period of delay was
not severe in that the
appellant’s representative “
had
to be sure that there was proof of service
”;
the “
prospects
of success in the review application to have the rescission ruling
reviewed…are very good indeed
”
since Ms Bowie was never an employee and was not suspended; the
matter is of extreme importance to the appellant; and that
the
appellant would be severely prejudiced if condonation were not
granted.
[6]
In
its judgment, the Labour Court found that, although the official
appeared to have assumed it to be sufficient to seek condonation
only
in respect of the rescission application –
‘…
this
cannot be so, since the merits of review sought appear to canvass
both the rescission ruling and the default arbitration award.
To the
extent that the applicant has failed to apply for condonation for the
late filing of the review application in relation
to the default
arbitration award issued by the second respondent on 31 March
2014, this court
has no jurisdiction to entertain a review against that award
.’
[7]
Furthermore,
the application for condonation was supported only by the affidavit
of Mr Pretorius, in which it was denied that the
notice of set down
had been received, but with no confirmatory affidavit filed by the
appellant’s CEO. The Court stated that:
‘
One
might have expected, given the
[first
commissioner’s]
assertions
regarding service and the reference in the record to a successful fax
transmission, that the
[employer]
deal
with these, or at least provide some response or explanation beyond
the unsubstantiated assertion that the notice was not received
by the
CEO. But there is no reference to any of the methods of service
referred to by the commissioner, either in the form
of the
successfully transmitted fax referred to in the transcript or the
posting of the notice by fast mail to an address verified
as that of
the applicant. In the circumstances, it was incumbent on the employer
to place before the
[second
commissioner]
an
adequate and sufficient explanation for its assertion that it had not
received the notice…
’.
[8]
The
consultancy agreement on which the appellant relied was rejected as a
sham, with the Court stating that there was little doubt
that,
“
despite
the label and the content of the contract”,
an
employment relationship existed between the parties; and Ms Bowie was
an employee of the appellant. The application for condonation
was
refused.
[9]
As to
costs, the Labour Court found that the employer’s election to
institute proceedings in Cape Town, with the knowledge
that the
employee would be prejudiced in her opposition to the application,
was “
indicative
of an attitude on the part of the [employer] that pervades this
matter
”
and that there was no reason to deny the employee her costs,
including the travel and accommodation costs of her attorney
in
attending the hearing of the review application.
The appeal
[10]
This
appeal was first set down for hearing in Cape Town on 11 May 2017.
Prior to the hearing, the employee indicated that she was
unable to
afford the costs of litigating the matter in Cape Town and the appeal
was postponed
sine
die
with submissions sought from the parties as to why the review
application had been pursued by the appellant in Cape Town. The
matter was thereafter set down for hearing before this Court in
Johannesburg.
[11]
It
was contended for the appellant that the Labour Court erred in
finding that an application for condonation for the late filing
of
the review of the default award had not been made, and in dismissing
condonation for the late filing of the review application
in respect
of the rescission application. Ms Bowie opposed the appeal on the
basis that the Labour Court had correctly found that
there was no
application to condone the late filing of the review application made
by the employer and that the Court accordingly
lacked jurisdiction to
consider that application. As to the refusal to grant condonation in
respect of the late filing of the review
of the rescission ruling, it
was submitted that, with poor prospects of success and an inadequate
explanation for the delay, condonation
was correctly refused and the
matter dismissed with costs.
Evaluation
[12]
It is
trite that the Court holds a discretion as to whether to grant
condonation. The exercise of such discretion requires that
consideration be given to,
inter
alia
,
the extent of the delay; the reasons for the delay; the prospects of
success; the prejudice that the parties will suffer if condonation
is
granted or refused; and whether it is in the interests of justice to
grant condonation as sought.
[1]
[13]
The
appellant explained the 20-day delay in filing the application to
review the rescission ruling on its unsuccessful attempts
to obtain
proof from the CCMA that the notice of set down had been received by
the appellant. However, since the appellant’s
CEO denied that
the notice of set down had been received, the Labour Court correctly
found that this required some explanation
from the CEO. No
confirmatory affidavit from the CEO was placed before the Labour
Court in which the appellant’s fax and
mail receipt systems may
have been explained, the searches it had undertaken to determine
whether notice was received detailed
and in which it was confirmed
that the notice had not been received. Instead, Mr Pretorius stated
that the period of delay was
not severe, when the appellant’s
representative “
had
to be sure that there was proof of service
”.
[14]
Condonation
is not to be granted simply on the asking. A party seeking that
condonation be granted puts up an inadequate and poorly
motivated
affidavit in support of its application at its own peril. The
explanation provided by the appellant that it took more
than six
weeks for it to seek proof from the CCMA that the notice of set down
had not been served is inadequate. There is no reason
as to why more
expeditious steps could not have been taken to obtain the information
required and the Labour Court can hardly be
faulted for finding that
a more cogent case was required to be put up by the appellant to
explain properly, and in appropriate
detail, the reason for the delay
in filing the review application.
[15]
The
claim by Mr Pretorius that the “
prospects
of success in the review application to have the rescission ruling
reviewed…are very good indeed
”,
since Ms Bowie was never an employee and was not suspended from duty,
was properly considered by the Labour Court and rejected.
The
material before it bore out its finding that –
‘…
there
can be little doubt that despite the label and the content of the
contract in which the applicant relies, the reality in the
present
instance is one of employment. The
[appellant]
does
not address the merits of the
[employee’s]
referral,
i.e. that she was summarily suspended without pay after expressing
her dissatisfaction at the fact that a colleague had
received a
better offer offer from the
[appellant].’
[16]
Furthermore,
the Labour Court properly had regard to the fact that, were
condonation to be granted, it would be entitled to interfere
with the
second commissioner’s ruling only if the decision arrived at
was unreasonable to the extent that no reasonable decision-maker
could have come to the same decision on the available material. The
Court cannot be faulted for finding that, despite the fact
that the
delay in filing the application to review the rescission ruling was
not inordinate, it was not persuaded that the appellant
held any
prospects of success in the review application. The appellant’s
claim that the matter was of extreme importance
to it was not
substantiated. There was also no indication on what basis the
appellant would suffer the severe prejudice it complained
of if
condonation were not granted. For all of these reasons, it follows
that the appellant failed to make out a proper case to
justify the
grant of condonation in the matter and that in dismissing the
application for condonation, the Labour Court cannot
be faulted.
[17]
Since
no application served before the Labour Court seeking condonation to
be granted for the 14-week delay in filing the application
to review
the default arbitration award made by the first commissioner, the
Labour Court correctly found that it lacked jurisdiction
to determine
that review application.
[18]
Having
regard to considerations of law and fairness, there is no reason why
costs should not follow the result.
Order
[19]
In
the result, the following order is made:
1.
The
appeal is dismissed with costs.
________________
Savage AJA
Musi
JA and Coppin JA agree.
APPEARANCES:
FOR THE APPELLANT:
C de Kock
Instructed by
Carelse & Khan Attorneys
FOR THE FOURTH RESPONDENT:
R Saint
Instructed by Saint
Attorneys
[1]
South
African Post Office Ltd v Commission for Conciliation Mediation and
Arbitration and Others
[2012]
1 BLLR 30
(LAC); (2011) 32 ILJ 2442 (LAC);
NEHAWU
obo Mafokeng and Others v Charlotte Theron Children’s Home
[2004] 10 (BLLR) 979 (LAC).