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[2005] ZALCJHB 5
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Northern Training Trust v Maake and Others (JR268/02) [2005] ZALCJHB 5 (2 December 2005)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NUMBER: JR268/ 02
In
the matter between:
Northern
Training Trust
Applicant
and
Josiah
Maake First
Respondent
Sita
Gesina Maria Du Toit
Second
Respondent
CCMA Third
Respondent
Judgment
CELE
AJ
Introduction
[1]
This is an application to review and set aside a ruling of the first
respondent who dismissed an application to rescind an arbitration
award issued by him in the absence of the applicant. The notice of
motion and founding affidavit state that the application to
review
the ruling is in terms of section 145 of the Labour Relations Act 66
of 1995.
Background
Facts:
[2]
The second respondent commenced employment with the applicant as from
11 March 1996 in terms of a written contract of employment.
She was
employed as a contract worker who would be remunerated at the rate of
R 32-00 per hour for secretarial related duties.
She had to submit a
monthly invoice on hours she would have worked. The memorandum of
agreement she made with the applicant described
the agreement of
employment as of an indefinite nature.
[3]
On 27 January 1999 the second respondent entered into another
contract of employment with the applicant. She was then appointed
as
a trainer consultant in terms of that memorandum of agreement, and
with effect from 1 February 1999 to 31 March 1999 Clause
7 of the
memorandum of agreement she made with the applicant, listed benefits
of permanent employees which she was specifically
excluded from.
[4]
The second respondent continued to work after 31 March 1999. On 22
June 1999 she wrote a memorandum and addressed it to the
applicant
wherein she was questioning her status, that is, whether she was
employed as a trainer consultant or as a contract worker.
She said
that she signed a contract of employment as a contract worker and not
a trainer consultant. The two positions differed
in terms of benefits
which the incumbents would be entitled to.
[5]
The applicant responded to the second respondent’s letter, with
a memorandum dated 28 June 1999. Her position was described
as one of
a trainer consultant. There was a reminder that she would be
completing another term of three months of the contract
of employment
on 30 June 1999. She was then advised to initiate the renewal of her
contract of employment for another three months,
if she wished to
continue to render her services with the applicant.
[6]
On 28 June 1999, the applicant issued a memorandum which it addressed
to Giyeni training centre. This was its training centre
and it is
where the second respondent was based. It was an invitation which was
extended to all contract workers of applicant to
apply for voluntary
severance packages. On 29 June 1999 the second respondent applied for
the voluntary severance package.
[7]
On 5 July 1999 the applicant wrote a letter which it addressed to the
second respondent. It informed her that her contract of
employment
had expired and that her last working day had been 30 June 1999. The
second respondent however, continued to report
for work until on one
day she come to work to find her office locked. She had no keys to
use in opening it.
[8]
A dismissal dispute then arose between the second respondent and the
applicant. Second respondent took the position that she
had become a
permanent employee of the applicant who was dismissed without a
hearing.
[9]
On 26 July 1999 the second respondent referred a dismissal dispute to
the third respondent for conciliation. The dispute was
about whether
there was employer / employee relationship and if so, whether the
termination of that relationship amounted to dismissal
and if so,
what the appropriate remedy was.
[10]
A conciliation meeting attended to by both parties took place on 13
September 1999. Attempts at resolving the dispute were
unsuccessful.
A certificate of outcome was issued to the second responded who then
referred the dispute for arbitration.
[11]
On 9 March 2000 both parties attended the arbitration proceedings
which were however postponed
sine die
,
without a hearing, at the instance of the second respondent.
[12]
On 25 August 2000 the third respondent issued an arbitration
notification with a date of hearing. This notice was to be sent
by
telefax to both parties. The date of the arbitration proceedings was
given as 22 September 2000 in the notice. The second respondent
received the fax notification and attended the arbitration
proceedings. The applicant did not attend those proceedings.
[13]
The second respondent was represented by an attorney at the
arbitration proceedings and she was called as a witness. At issue
was
the procedural and substantive fairness of her dismissal. The first
respondent was the arbitrator who, once proceedings were
concluded,
issued an award with the finding that the second respondent had
become a permanent employee of the applicant. He found
further that
the second respondent was dismissed by the applicant which dismissal
he found, was without a fair reason. He then
ordered the applicant to
compensate the second respondent, who had found work elsewhere, in
the sum of R 92 925=00. This amount
was said to have been calculated
at the rate of the applicant’s remuneration, given as R 63 00
per month, from the date of
dismissal to the date of the arbitration
proceedings.
[14]
On 10 May 2001 the applicant received, by way of a fax transmission,
a copy of the arbitration award with a demand calling
on it to meet
the claim or risk the execution of a writ. The applicant instructed
its attorneys to handle this matter. On 21 May
2001 attorneys of the
applicant wrote a letter addressed to the third respondent wherein a
request was made for proof of a notification
of set down of the
arbitration proceedings. A second latter with a similar request was
sent by the same attorneys on 13 June 2001.
The record of these
proceedings does not have any reply by the third respondent to the
two letters of the applicant.
[15]
On 5 July 2001 the applicant initiated an application for the
rescission of an arbitration award of 5 May 2001 which the applicant
received on 10 May 2001 through attorneys of the second respondent.
[16]
The application for rescission was done by way of notice of motion
accompanied by a supporting affidavit. The second respondent
opposed
this application which she did by filing and serving an opposing
affidavit. The hearing of the application was set down
for 22
September 2001. Both parties were represented by their attorneys. The
first respondent was again the arbitrator. Both attorneys
presented
their arguments whilst they relied on affidavits which the parties
had filed. At the heart of the dispute was the question
whether the
third respondent had notified the applicant of the date of set down
of the arbitration proceedings. The case of the
applicant was that no
such notice was either sent to or received by the applicant. The
second respondent’s version was to
the contrary.
[17]
The first respondent,
mero moto
,
called a case management officer, one Ms Sannah Seltatjile as a
witness. She was an officer of the third respondent whose names
appeared in a telefax message. She testified to the effect that she
was the officer who had sent notices of the arbitration proceedings
to the parties.
[18]
Ms Seltatjile was given two documents marked annexure D and E which
she was asked to describe. Annexure D, she said was the
notification
itself and she described annexure E as fax report. Her evidence on
annexure E was basically that there was an explanation
ex
facie
the annexure namely, that the
operation was completed with no errors. That to her, meant that the
fax had gone through to both
numbers. She said that she was satisfied
that the fax went to both destinations and she said the annexure had
both numbers of recipients
to which it said it was successfully
transmitted.
[19]
When Ms Seltatjile was asked by the applicants counsel, she said that
the notification showed only one fax number because it
would only
give the first number. That fax number was of the second respondent.
The fax number of the applicant was not reflected
on the
notification. When asked if she could think that the fax might not
have been transmitted to the other party, she said that,
if it was
not, it could show only one number. That concluded the hearing of the
rescission application proceedings.
[20]
On 28 October 2001 the first respondent issued a ruling for the
rescission application. He dismissed the application. It is
this
ruling which the applicant seeks to have reviewed and set aside. The
applicant has also filed an application to amend the
notice of motion
so as to include section 148 (1) (g) of the act as an alternative to
section 145 of the act. Counsel for the second
respondent adopted,
correctly so in my view, a rather pragmatic approach in not
strenuously opposing the application to amend.
In this respect, I am
guided by Mlambo J in
Transnet v Hospersa & Another (1999) 20
ILJ 1293 (LC)
when he said:
“…
.In
my view mis-characterization of the nature of the review is not
fatal. This court has to look beyond the legal label and consider
the
substance of the application. To look no further than the heading
would be unduly formalist”.
That
a review application based on section 145, is limited only to reviews
of arbitration awards, to the exclusion of rulings issued
by
commissioners in proceedings which are about dispute resolutions
during conciliation or arbitration proceedings, is now trite.
[21]
The application for the amendment of the notice of motion is
accordingly granted as prayed for.
The
arbitration award:
[22]
The first respondent articulated the question which he was called
upon to answer in the application before him as:
“
At
issue is whether or not the applicant had properly been notified by
the CCMA of the date on which the arbitration hearing was
to take
place, to wit, the 22
nd
September
2000”.
He
repeated the essence of what he perceived was the issue to be
resolved by him when he analysed the evidence before him. He then
concurred with the submission, made by the second respondent’s
representative that the fact that a notification had gone
through to
the other party, is sufficient proof of service and that once an
arbitrator is satisfied
ex facie
the faxination document that the notification has gone through, he is
at large to proceed with the hearing, in the absence of the
other
party. He found that there was sufficient service of relevant
notification upon the applicant and that its internal lack
of
communication should not prejudice the respondent. He then refused
the application to rescind the award.
The
review application
[23]
The application is made on the premise that the first respondent
erred and therefore committed a gross irregularity in finding
that
there had been sufficient service of the relevant notification upon
the applicant. The first respondent, it is further said,
erred in
finding that the applicant’s internal lack of communication
should not prejudice the respondent. It is said also
that the first
respondent did not allow himself to be guided by principles which are
applicable in a rescission application. And
therefore committed a
gross irregularity.
[24]
The second respondent submitted that there was overwhelming proof
that the notification of the arbitration hearing date was
properly
transmitted and received by the applicant’s office. She placed
reliance on admissions by the applicant that the
fax number allegedly
used was a correct number, that applicant had received a notice of
set down for conciliation proceeding through
the same fax number and
a concession by the applicant that the fax message may have gone
through to the office of the applicant.
She also relied on the
evidence tendered by Ms Seltatjile.
Analysis
[25]
Section 158 (1) (g) of the Act provides that:
“
(1)
The Labour Court may-
(a)………..
(g)
Subject to section 145, review the performance of any function
provided for in this Act on any grounds that are permissible
in law”.
[26]
Section 144 (a) of the Act gives the commissioner the power to
rescind an arbitration award erroneously made in the absence
of any
party affected by that award.
[27]
In
Northern Province
Local Government Association v CCMA &
Others (2001) 5 BCCR 539 (CC)
Sutherland AJ had this to say:
“
[46]
It seem to me that a Commissioner in considering whether or not a
notification of an arbitration hearing
has indeed been received by a
respondent, it is necessary to consider all the facts bearing
on that question. Axiomatically,
in deciding whether or not fax
transmission was received, proof that the fax was indeed sent creates
a probability in favour of
receipt, but does not logically constitute
conclusive evidence of such receipt.”
[28]
The enquiry in an application for the rescission of arbitration award
is consequently bipartite. The first leg is one which
is concerned
with whether or not the notice of set down was sent (for instance by
fax or registered post). Should evidence show
that the notice was
sent, a probability is then created that the notice sent was
received. The second leg to the enquiry is one
which concerns itself
with the reasons proffered by the applicant who failed to attend
arbitration proceedings. Such applicant
needs to prove that he or she
was not wilful in defaulting, that he or she has reasonable prospects
of being successful with his
or her case, should the award be set
aside. However, the applicant needs not necessary deal fully with the
merits of the case.
[29]
The two requirements of fairness and expedition should be balanced.
Where there is an apparent conflict between the two, fairness
should
be given precedence lest injustices are done. See
Foschini
Group (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration & others ( 2002) ILJ 1597 ( LC); Halcyon
Hotel ( Pty)
Ltd t/a Baraza v CCMA & Others (
2001) 8 BLLR 911
( LC).
[30]
In the present case, the first respondent concerned himself only with
the first stage of the probe and he made no attempt to
look further.
When he gave a background to the application, he said that at issue
was whether or not the applicant had properly
been notified by the
CCMA of the date on which the arbitration hearing was to take place.
[31]
He concluded the reasons for his ruling thus:
“
I
am more than satisfied on the basis of the fore-going that there was
sufficient service of relevant notification upon the applicant
and
its internal lack of communication should not prejudice the
respondent. I here under proceed to hand down my ruling:
Ruling:
In
view of the fore-going, the application fails”
[32]
In the founding affidavit of the applicant filed of record at the
CCMA, the applicant stated that he was not in wilful default,
that he
had a good and reasonable explanation for not attending the
arbitration proceedings and that he had excellent prospects
of
success on the merits of the matter. This was all evidence which was
properly available to the first respondent.
[33]
The test to apply in review application such as the present, was laid
down in
Carephone (Pty) Ltd v Marcus N.O. & Others (1998) 19
ILJ 1425 (LAC)
as:
“
Is
there a rational objective basis justifying the connection made by
the administrative decision – maker between the material
properly available to him and the conclusion he or she eventually
arrived at”
[34]
Chaskalson P in
Pharmaceutical Manufactures of South Africa in Re
ex parte President of the RSA
2002 (2) SA 674
then said;
“
[86]
The question whether a decision is rationally related to the purpose
for which the power was given calls for an objective enquiry.
Otherwise a decision that, viewed objectively, is in fact irrational,
might pass muster simply because the person who took it mistakenly
and in good faith believe it to be rational. Such a conclusion would
place form above substance and undermine an important constitutional
principle”.
[35]
The first respondent placed undue emphasis on the fact that the
transmission record showed a successful transmission of the
fax
message. That was by no means, proof of proper notification and
regard should have been had to the facts which the applicant
placed
before him.
[36]
I am informed by the decisions in
Cerephone
and
Pharmaceutical
Manufactures
supra, that the first respondents decision not to rescind his award
is reviewable as he misconceived the nature of the discretion
conferred on him by section 144 of the Act. He failed to take into
account all relevant considerations. He failed to apply his
mind to
the relevant issues and has thus committed a gross irregularity. (See
also
Hira & Other v Booysen &
Another
1992 (4) SA 69
(A).
Accordingly, I am satisfied that the arbitration award was
erroneously made in the absence of the applicant.
[37]
In the notice of motion and in the founding affidavit, the applicant
did not request this Court to rescind the award. The prayer
was only
for the review and setting aside of the rescission ruling. However,
in the heads of argument and during the hearing of
the application,
the applicant asked for the reviewing and setting aside of the award.
The second respondent submitted that the
applicant should be
restricted to the prayers as contained in the notice of motion. In
the notice of motion, the applicant did
ask though, for a further and
or alternative relief. It is in the interest of the parties and of
the administration of justice
that there should be speedy resolution
of this dispute. I believe I am entitled to adopt a practical come
near in this matter-
(See
Haleyon Hotel
case
supr
a).
Reference back of the matter to another commissioner, will accord
with the justice of this case
Orders:
1.
The rescission ruling issued by the first
respondent on 28 October 2001 in case number NP 9721 is hereby
reviewed and set aside
2.
The arbitration award issued by the first
respondent on 5 May 2001 in case number NP 9721 is hereby reviewed
and set aside.
3.
The matter is remitted to the third
respondent for arbitration proceedings to be started
denovo
before another commissioner.
4.
The second respondent is ordered to pay the
applicant’s costs.
___________________________
Cele
AJ
Date
of hearing
: 22 September 2005
Counsel
for the applicant :
Adv Grundlingh
Attorneys
for the applicant : Jourbert &
May Attorneys
Counsel
for respondent
: Johan Kotze
Attorneys
for the respondent : Kruger & Nagel Attorneys
Date
of Judgment
: 02 December 2005