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2002
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[2002] ZALCJHB 17
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Durand and Bowden (Pty) Ltd v Kleinot NO and Others (JR728/01) [2002] ZALCJHB 17 (7 February 2002)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NUMBER: JR 728/01
In
the matter between:
DURAND & BOWDEN
(PTY) LTD
First
applicant
and
COMMISSIONER KLEINOT
N.O.
First
respondent
COMMISSION
FOR CONCILIATION,
MEDIATION AND
ARBITRATION
Second
respondent
STEVEN MARK
RODWAY
Third
respondent
JUDGMENT
Landman
J:
1.
Steven Mark Rodway alleges that on 3 November 2000 he was
constructively dismissed. On 29 January 2001 the dispute about his
unfair dismissal was referred to the CCMA. As the referal was late an
application for the condonation of his late referral
was
lodged. On 21 February Mr Rodway’s employer, Durand and Bowden
(Pty) Ltd, filed its notice opposing the application for
condonation.
An answering affidavit was attached. This notice was out of time.
-2-
2.
In the meanwhile, on 12 February 2001, Mr Rodway received a notice
setting the matter down for conciliation on 27 March 2001.
When the
notice was received the CCMA case manager was contacted. Rodway’s
attorney Ms N Koulountis was informed that
condonation had been
granted. This intimation was erroneous.
3.
On 27 March 2001 the parties attended the CCMA for conciliation.
However, before any hearing could take place, the commissioner
handed
down a condonation ruling, which (at that time) was undated and
unsigned. The ruling makes it clear that it was decided
on the basis
of the founding and answering affidavits. The commissioner declined
to condone the late application.
4.
Ms Koulountis immediately requested that the ruling be
rescinded in terms of
s 144
(a) and (b) of the
Labour Relations Act
66 of 1995
.
The
parties argued the application for recission and condonation (should
the recission be granted). They supplemented this with
written
argument. The essence of Ms Koulountis’ argument was that
rule
19.7
of the Rules of the CCMA states that the: “Commission must
allocate a date for the hearing of an application once a replying
affidavit is delivered, or once the time limit for a replying
affidavit has lapsed, which occurs first”. The employer’s
opposing documents were out of time. Mr Rodway did not respond to
them. But a hearing should have been convened. One was not held.
This
deprived Mr Rodway of an opportunity to reply, which was irregular
and vitiated the ruling.
5.
The commissioner issued a ruling rescinding the refusal to condone
the late referral. She also condoned the late referral. The
commissioner concluded that as a condonation ruling has the same
effect as an award, both being final and binding,
s 144
, although it
does not mention condonation rulings, impliedly included them.
6.
A conciliation meeting took place on 12 June 2001. The dispute
remained unresolved. But the commissioner refused to issue a
certificate of outcome until the employer’s application for
review was decided.
7.
The employer seeks to review the recission of the ruling. The
employer relies on two grounds. The first is that
s 144
of the
LRA,
-3-
on
which the commissioner relied as her authority to rescind the ruling,
is not applicable as it deals with the recission of an
award.The
second is to the effect that, if the section applies, the ruling was
not given in the absence of one of the parties and
therefore
s 144
does not apply.
8.
Ms Koulountis submits that there is no substance in these grounds.
Section 144
, she submits, should be read with
rules 19
and
24
of the Rules. These provisions empower a commissioner to rescind an
arbitration award or ruling.
Rule 24.3
allows for the variation or
rescission of arbitration awards and rulings.
Rule 24.1
requires
applications for the variation or rescission of arbitration awards
and rulings to comply with the provisions of
rule 19.
According to
rule 19.9:
“any ruling made by a Commissioner in terms of Rules
which has the effect of a final order will be regarded as an
arbitration
award”.
9.
Ms Koulountis submits that various cases support this interpretation
and so does the proposed amendment to
s 114
of the LRA (Labour
Relations Amendment Bill no 22642 of 2001). She contended that in
Mtshali v Commission for Conciliation, Mediation and Arbitration &
Others
(1999) 20 ILJ 2400 (LC) specifically and unequivocally
states that in terms of
s 144
the CCMA is empowered to consider the
question of condonation afresh in the light of evidence and arguments
presented and to rescind
a condonation ruling. It was held that it is
not only entitled to do this, but is obliged to do so. See also
Balaram v Commission for Conciliation, Mediation and Arbitration &
Others
(2000) 21 ILJ 1777 (LC).
10.
It was also contended that the first ruling issued by the
commissioner was made in error and in the absence of the parties.
The
condonation ruling states that “both parties submitted
affidavits and a ruling was made on this basis”.
11.
I am in agreement that a ruling regarding condonation and an award
are both final and binding. Normally neither of these decisions
would
be capable of recission by their author. The authors are functus
offiicio. This is a substantive rule of law.
Section 30
of the
Arbitration Act 42 of 1965
, which does not apply to the CCMA, permits
an arbitrator to correct minor errors in the award. However, an
award
-4-
made
by an a CCMA commissioner may be rescinded in terms of
s 144
on
the grounds set out in that section. The legislature did not make
s
144
applicable to rulings on condonation.
Section 144
does not apply
to condonation rulings. Rather the legislature, which may be taken to
know the common law, was content that
the functus officio rule
should apply. A voidable ruling on condonation may only be set aside
by the Labour Court on review.See
Ruijgrok v Foshini (Pty) Ltd
(1999) 20 ILJ 635 (LC) at paragraph 20.
12.
Rulings on condonation are not awards. The court in
Mtshali v
Commission for Conciliation, Mediation and Arbitration & Others
(1999) 20 ILJ 2400 (LC) proceeded on the basis that a ruling on
condonation was an award. But it did so because the recission
ruling termed in the award a point in limine, took place immediately
after the award was rescinded and was recovered in the same
document.
Marcus AJ at 2404 A referred to this as:“the recission award”.
A ruling on condonation, though it shares
many of the attributes of
arbitration, is not arbitration in the sense in which the concept is
used in the LRA. Furthermore
it makes no difference whether the
condonation ruling is handed down at a conciliation session or during
arbitration proceedings.
Its fundamental nature remains the same.
13.
Rule 19(9)
which equates a ruling in terms of the rules with an award
cannot amend or vary the LRA. The rules may only deal with procedural
matters and not matters of substantive law.
Section 115
(2)(cA) (iii)
and (iv) of the LRA, which empowers the CCMA to make
rules, does not permit the rules to amend the Act
or the common law.
The rules validly deal with the procedure regarding the recission of
arbitration awards as
s 144
of the LRA caters for this. To the extent
that the Rules purport to permit a commissioner to rescind a final
condonation ruling
they are ultra vires. The right to rescind
the ruling
must
exist before a procedure can be put in place Cf
United Reflective
Converters (Pty) Ltd v Levine
1988 (4) SA 460
(W) at 463.
14.
In the premises the application should be granted. I should add that
I am disturbed about the expense which the parties
have
incurred in connection with a ruling which is undoubtedly
defective. But I have not been asked to review the first condonation
ruling and it would be
-5-
improper
for me to do so without Mr Rodway applying for it.
15.
I make the following order:
1. It is declared that
the first respondent’s undated ruling headed “Point in
Limine” purporting to rescind her
previous ruling refusing the
third respondent’s application for condonation, is of no force
or effect.
2. The ruling is set
aside.
3. It is declared that it
is incompetent for the second respondent validly to arbitrate upon
the dispute referred to it by the third
respondent on 29 January 2001
concerning his dismissal by applicant, until and if the ruling by
first respondent handed to applicant
and the third respondent
on 27 March 2001 refusing condonation has been set aside by a
competent court.
4. The third respondent
is ordered to pay the costs of this application.
Signed
and dated at PORT ELIZABETH this 7
th
Day of February 2002.
___________
AA
Landman
Judge
of the Labour Court of South Africa
Counsel and attorneys
for the Applicant instructed by SEESA.
Attorneys
for the 3
rd
Respondent:
Ms
Koulountis of
Jonker,
Smith, Bergh Inc.