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[2007] ZALCJHB 27
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Checkport SA (Pty) Ltd v Tsatsimpe No and Others (JR874/05) [2007] ZALCJHB 27 (22 February 2007)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR874/05
In
the matter between:
CHECKPORT
SA (PTY)
LTD Applicant
and
MAPALO
TSATSIMPE
N.O. First
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION Second
Respondent
GOVENDER,
YOSHAN Third
Respondent
JUDGMENT
FRANCIS
J
1.
This is an application to review a rescission ruling made by the
first respondent (the commissioner) in February 2006 under case
number GA13934/04 after she had refused to rescind a default
arbitration award.
2.
The application was opposed by the third respondent.
3.
It is common cause that the third respondent had referred an unfair
dismissal dispute to the second respondent (the CCMA) for
conciliation and arbitration. It is further common cause that
both parties were notified by the CCMA that the matter had
been
enrolled for a hearing on 25 July 2005. The applicant did not
attend the arbitration proceedings. The commissioner
went on
with the matter and issued a default arbitration award in favour of
the third respondent on 1 August 2005.
4.
When the default award came to the attention of the applicant, it
filed an application for rescission with the CCMA. The
third
respondent opposed the application.
5.
The commissioner issued a ruling in February 2006 in terms of which
she dismissed the rescission application. The commissioner
said
that she was required in terms of section 144 of the Labour Relations
Act 66 of 1995 (the Act) to decide whether the rescission
should be
granted or not. She said that any commissioner could consider a
rescission application. An award or ruling
could be rescinded
if erroneously made. In this case, both parties were properly
notified about the scheduled process.
Before the relevant
commissioner could proceed, she satisfied herself, on behalf of the
Commission, that the parties had been properly
notified. She
then went on with the process after satisfying herself that both
parties had been notified about the scheduled
process. The
employer did not attend and its explanation is that there was a
strike on the day of the process. The
commissioner said that
she had perused all the documents before her. The strikers
informed the employer on 08 July
2005 that they would be starting
their strike within 48 hours. The strike did not start on 25
July 2005. The employer
indicated in its rescission application
that the necessary arrangements had been made to ensure that
operations continue and that
its clients do not suffer.
According to it, everything ran smooth as if there was no strike.
It had a contingency plan.
The commissioner said that it was
her view that the contingency plan should have been expanded to its
CCMA matters. It should
have done the same with regard to
important processes like the Commission’s processes. It
was clear from the recision
application that the applicant knew that
it could be ask for a postponement. According to its rescission
application, it
chose not to apply for a postponement. The
commissioner did not accept the explanation that there was a strike
as a ground
to rescind this award. She did not grant the
rescission.
6.
The applicant was unhappy with the ruling and filed an application to
review and set aside the ruling. It was contended
that there is
no rational objective basis justifying the connection made by
the commissioner between the material available
to her and the
conclusion she eventually arrived at. The grounds of review
are:
6.1
The commissioner did not consider at all in her ruling the
applicant’s prospects of
success. It is necessary for the
applicant in a rescission application to display that it has
bona
fide
reasons for its default and prospects of success on the
merits. The ruling only deals with the default of the applicant
and
not with prospects of success.
6.2
The commissioner failed to appreciate and apply her mind to the fact
that David Masina who
was to attend the arbitration proceedings on
behalf of the applicant, was involved in negotiations with Union
Officials acting
on behalf of the striking workers on the day of the
arbitration proceedings. In addition the commissioner failed to
take
into account that key witnesses, who would be required in the
matter, could not be released on the day of the arbitration
proceedings
as they were filling in for employees already on strike.
6.3
The commissioner failed to take into account that the strike was
still ongoing on the day
of the arbitration proceedings.
7.
The applicant indicated in its rescission application that the
rescission application was made in terms of section 144(a) of
the
Act. Section 144(a) of the Act reads as follows:
“
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;”
It
is similar to the provisions of section 165 of the Act that deals
with rescission applications of judgments or orders of the
Labour
Court. Both provisions of the Act do not require a party to
show good cause. The requirement for good cause
was introduced
by Rule 16A(2)(d) of the Rules of the Labour Court that only applies
to judgements or orders of the Labour Court.
The CCMA rules do
not have a similar Rule 16A(2)(d) provision.
8.
A default award would have been made erroneously if there was for
example no proper notice to the absent party; where the CCMA
did not
have jurisdiction in the matter; or the commissioner could legally
not make the default award; or if the commissioner was
unaware of
facts, if known to him or her, would have precluded him or her from
making the default award. So where for instance
a party attends
the offices of the CCMA and is struck down by a vehicle at the doors
of the CCMA and is unable to attend the hearing
but this fact was
brought to the attention of the CCMA before the default award was
made, the commissioner would have been obliged
to postpone the
matter. If he were to proceed with the matter despite this
knowledge, the default award would have been made
erroneously in the
absence of the other party. If he was unaware of the incident
and went on with the matter and issued a
default award, the
defaulting party can have the default award rescinded on the basis
that had such facts been placed before the
commissioner in the first
place, the commissioner would not have proceeded with the matter. The
default award would have been made
erroneously.
9.
The CCMA and its commissioners derive their powers mainly from the
Act. They do not have inherent powers and must always
act
within the confines of the Act or relevant statutes. They can
rescind awards made erroneously in the absence of a party.
Where such an application is made, the commissioner is enjoined to
ascertain whether the default award was made erroneously in
the
absence of another party.
10.
It is clear from the facts presented before the commissioner that the
applicant had been notified by the CCMA that the matter
had been set
down for arbitration. The third respondent’s attorney
reminded the applicant that the matter had been
set down for
arbitration and that they should hold a pre-trial meeting. The
applicant simply failed to attend the arbitration
hearing. It
did not apply for a postponement. The CCMA rules make provision
for a party to apply for a postponement
either before the hearing or
on the day of the hearing. There is simply no explanation given
why no application was made
for a postponement.
11.
It is clear from the facts of this case that the applicant has
treated the CCMA with disdain. It has undermined the authority
of the CCMA. This is unacceptable. It did not bother
informing the CCMA that it would not be able to attend the CCMA
hearing for whatever reasons. The impression that one is left
with is that it adopted the misguided attitude that it would
apply
for a rescission and that the rescission application would as a
matter of course be granted.
12.
Counsel for the applicant was asked why it was contended that the
default award was made erroneously in the absence of the applicant.
He submitted that it was made erroneously in that the applicant was
denied the right to be heard or the
audi
alteram partem
principle was not
applied. There is no substance in these contentions. The
applicant was notified that the matter was
set down for a hearing.
The applicant in embarking on the course of action that it took,
denied itself the right to be heard.
13.
The rescission application was made in terms of section 144(a) of the
Act. The applicant had to show that the award was
made
erroneously in its absence. It had failed to place facts before
the commissioner indicating that the default award was
made
erroneously in its absence. There was no duty on the part of
the commissioner to have considered the prospects of success.
Even if there was, the applicant would still have to indicate that
the award was made erroneously in its absence. It has
failed to
do so. Its conduct bothers on contempt for the CCMA.
14.
The commissioner has not committed any irregularity and the
application stands to be dismissed.
15.
It is a pity that the third respondent did not seek punitive costs on
the highest possible scale. This is one matter that
would have
warranted such a cost order. There is no reason why costs
should not follow the result. The costs are limited
to a party
and party scale.
16.
In the circumstances I make the following order:
16.1
The review application is dismissed with costs.
________________
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR
APPLICANT
: C ASCOR
INSTRUCTED BY FLUXMANS INCORPORATED
FOR
THIRD RESPONDENT
:
G J
ROSSOUW INSTRUCTED BY ALAN C KNIGHT ATTORNEYS
DATE
OF HEARING
: 20
FEBRUARY 2007
DATE
OF JUDGMENT
: 22
FEBRUARY 2007