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[2002] ZALCJHB 10
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MTN South Africa v Van Jaarsveld and Others (JR991/01) [2002] ZALCJHB 10 (25 June 2002)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NUMBER: JR991/01
In
the matter between:
MTN
SOUTH AFRICA
Applicant
and
RIAAN
VAN
JAARSVELD First
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION Second
Respondent
COMMISSIONER
ALRED
MATABANE Third
Respondent
J
U D G E M E N T
1.
On the 9
th
of November 2000 the Applicant employer
dismissed its employee, the First Respondent. The dismissal is
confirmed in an appeal
heard on the 23
rd
of December
2000. The First Respondent was not satisfied with the outcome
and referred the matter to the CCMA for conciliation.
When that
failed, the matter was referred to the CCMA for arbitration.
Communication of the hearing of the CCMA arbitration
was communicated
to the Applicant by telefax. The date for the
hearing was 16 March 2001. On the date of
the hearing, the
Applicant was not represented. The Commissioner who heard
the matter, the Third Respondent, concluded
that service had been
properly effected on the Applicant and dealt with the matter in the
absence of any representation.
The Third Respondent
heard the case put forward by the First Respondent and decided that
the dismissal was unfair. He ordered
consequent relief.
2.
When the award was drawn to the attention of the Applicant, and
application to rescind the award handed down on the 24
th
of March was launched. That application is before me.
3.
The basis for the rescission is essentially that although the telefax
communication may well have been received at the telefax
number of
the Applicant used by the officials of the CCMA, the notice did not
reach the desk of anyone who appreciated its significance
and could
react thereupon. It was contended by the Applicant to the Third
Respondent at the rescission application hearing
that the telefax
number used by the CCMA was the general fax of the Applicant’s
reception and not the fax in the Human Resources
Department. It
was further suggested that huge delays took place in identifying who
was the responsible person to give attention
to faxes which arrived
at the general office and that such difficulty was exacerbated by the
fact that the notice faxed to the
Applicant’s office had no
reference number on it which could easily identify to whom it should
be referred within the organisation
of the Applicant. The
Applicant’s organisation it is said is a large and bureaucratic
one.
4.
Rescission applications of this nature require the presiding officer
who is responsible for deciding them to give consideration
to whether
or not in truth the party who was in default at the time when
judgment was granted or an award handed down, was unaware
of the
hearing. If that fact is established, the explanation for
the unawareness must be considered and if the explanation
is
reasonable that provides the basis for the rescission of the award or
judgment as the case may be. The Third Respondent,
in
articulating the test which he employ expressed himself as follows:
“
The test in
matters of this nature has always been whether the Applicant in
failing to attend the hearing was in wilful default
and was
negligent.
”
No
criticism can be advanced of articulating the test in those terms,
although one may well quibble as to whether or not it correctly
articulates the whole test which is required.
5.
The Third Respondent goes on to identify the essence of the debate
which was conducted before him. He points, appropriately,
to
the fact that the Applicant expressed its grievance at the choice of
the general fax number and the omission of any reference
number on
the document which would have facilitated a speedy redirection to the
appropriate person. Axiomatically,
implicit in that
articulation of the Applicant’s compliant is the consequence
thereof that it did not come to the attention
of a person who could
responsibly deal with it.
6.
The Third Respondent then articulates himself as follows:
“
It is common
cause that the Respondent was dismissed on 9 November 2000. An
appeal hearing was held on 23 December 2000.
It is admitted by
the Applicant that the Respondent did mention in that appeal hearing
that the matter was already with the CCMA.
The Applicant
by its own admission decided not to take the Respondent’s word
seriously and concluded that because the Respondent
could not
“furnish them with documentation and because he also
participate fully in the appeal process” he was lying.
It took no steps to verify that aspect further with the Applicant or
the CCMA. The Respondent was under no obligation to
“furnish”
the Applicant with the CCMA documents in the appeal hearing.
Again the Applicant admits to having
received the letter dated the
14
th
of December 2000 from the Applicant’‘s
attorney in January 2001. In the letter the attorneys
clearly mentioned
that the matter had been referred to the CCMA for
arbitration already. Yet again the Applicant did nothing to
verify with
either the attorneys themselves or the CCMA the so-called
“validity of the information”. (
In
this passage of course, the reference to Applicant and Respondent is
as they were in the CCMA and not in this application
).
7.
In my view the criticism of the Third Respondent of the Applicant is
inappropriate. It appears
that he took
the view that once there was correspondence or an informal
communication that the matter would indeed come before
the CCMA at
some time, some obligation then arose on the part of the Applicant to
investigate why no service of documentation had
arrived. That
cannot be correct. No party who is threatened with litigation
can be burdened with the obligation to
verify whether or not that has
taken place. It is the very purpose of the initial service of
documentation initiating litigation,
which warrants imposing any kind
of obligation whatsoever on a party to litigation. In my view
the assumptions are implicit
in the Third Respondent’s
criticism are wholly invalid.
8.
The Third Respondent articulates himself further as follows:
“
Bu its own
admission again, the Applicant states that the letter in question was
too urgent and was received late due to the fax
number that was
used. It however did nothing to alert the relevant parties
about the delay it was experiencing as a consequence
of the fax
number that was being used. The Respondent and his
representative were therefore entitled to continue to
use that same
fax number and from which the Applicant had received and responded to
their correspondence. The question of
the delays were never
brought to the Respondent or his attorney’s attention, nor was
it brought to the CCMA’s attention.
I find therefore on
the facts that proper notice was served on the Respondent and its
failure to attend the hearing was caused
by its willful and negligent
conduct in its handling of its correspondence.
”
9.
In my view this passage illustrates yet again a misconceived approach
on the part of the Third Respondent. In the first
place, the
notion that the correspondence of the Applicant was dealt with in an
allegedly “
willful and negligent conduct
” is not
to be confused with the enquiring as to whether or not the reason for
the absence of the Applicant at the CCMA hearing
is the result of
willful neglect. Moreover, to construe the failure to take the
initiative to communicate to the First Respondent
or his
representative or to the CCMA’s officials, that the fax number
which they were using was less appropriate than another
fax number,
is not something which properly should be given weight in determining
that the Applicant has behaved willfully and
negligently.
Axiomatically, it is a nonsense to suggest that the CCMA should have
been informed when the very problem
was that the Applicant was
unaware that the CCMA was endeavouring to communicate with it.
The suggestion that the First Respondent
or his representatives
should have been told that the letter of the 14
th
of
December took a long time to reach the desk of the responsible person
via a particular fax number, is not something that can
be given
weight to determine that the absence of the Applicant at the hearing
was the result of any wilfulness or negligence.
10.
The Third Respondent then seeks to distinguish certain authorities in
the High Court and in this Court, which gave weight to
the fact that
parties who were absent at hearings, intended at all times to proceed
and defend the claims made against them.
He justifies the
distinctions between the cases illustrated by those authorities, and
the present by saying the following:
“
... (there) it
was held in favour of a party who would have at all times intended to
proceed or defend the relevant application
and it was found that the
reasons why it had not been present was that it had no knowledge of
the set down. The current
situation is the result of the
Applicant’s inept and reckless attitude towards this matter.
”
11.
It is not altogether plain to me whether the Third Respondent made a
finding that the Applicant in this matter did not have
an intention
to proceed and defend the relevant application or indeed made a
finding that they had such an intention, but notwithstanding
that
intention they had behaved in an inept and reckless attitude.
As there is no factual foundation for the former conclusion,
I am
inclined to interpret his remarks as meaning the latter. However,
his characterisation of the conduct of the Applicant
on these facts
as inept and reckless is wholly without foundation.
It is manifestly obvious from the Third
Respondent’s own
findings of fact that as a matter of fact the Applicant did not have
knowledge of the hearing. The
real enquiry should have been
into whether or not that genuine ignorance on the part of the
Applicant and its officials was attributable
to some factor that was
blameworthy. The high point of blameworthiness from the
prospective of the Third Respondent is that
they did not take the
trouble to initiate cheques when they had heard that litigation was
pending and that they did not alert the
First Respondent or his
representatives that there was an unavoidable delay if a particular
telefax number was used to communicate
with them.
12.
The test to be applied as to whether or not the Third Respondent
conducted himself appropriately is that which is set out in
Carephone
(Pty) Limited v Marcus N.O and Others
(1998) 19 ILJ 1425
(LAC)
in which it was stated that there must a rational
connection between the conclusions reached by the Commissioner and
the material
which is placed before him. In my view,
there is a clear absence of a rational connection between the
material considered
by the Third Respondent and the conclusion
reached by him. The problems which arose for consideration by
the Third Respondent
illustrate the dangerous practice of service by
telefax, provided for in the Labour Relations Act. It is
one thing
for parties who have formally communicated with each other
and aware that they are engaged in litigation, to furnish one another
a telefax number at which they will accept further service of
documentation. However, it is plainly clear that telefaxing
the
initial documentation, which sets in train the rest of the
pre-hearing steps which must be taken by litigating parties, and
which reasonably should put them on their guard to look out for
further communications in regard to the litigation, is not well
served by the method of telefaxing. It is plain from
anyone who attends the hearings of the Labour Court, that the
enormous growth in applications for rescission in circumstances where
the Respondent party claims that albeit on the face of it
a telefax
transmission was sent, it was not received or did not reach the
person responsible for giving it attention, leads to
the conclusion
that the provisions of the Act in this regard require
reconsideration. In my view, it is appropriate that
the Rules
Board for the Labour Courts gives its attention to this matter of
procedure.
13.
Having regard to the view which I have taken as set out above, it is
not necessary for me to entertain the contentions and counter
contentions on the other issues raised in the matter before me. It is
clear that the refusal of the rescission by the Third Respondent
must
be set aside.
14.
Accordingly, I make an order as follows:
14.1
The decision of the Third Respondent handed down on 29 June 2001
refusing rescission
of an award handed down by the Third Respondent
on 24 March 2001 in case number GA 118744 is set aside.
14.2
The First Respondent, at his election, may refer the matter afresh to
the CCMA for a hearing into whether or not his dismissal was fair or
unfair within ninety days of the date of this judgment.
14.3
There will be no costs order.
_________________________
ROLAND
SUTHERLAND
ACTING
JUDGE OF THE
LABOUR
COURT OF
SOUTH
AFRICA
25
June 2002