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[2008] ZALCJHB 28
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Cash Paymaster Services (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (JR983/06) [2008] ZALCJHB 28 (12 March 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO. JR 983/06
In
the matter between:
CASH
PAYMASTER SERVICES (PTY) LTD
Applicant
and
COMMISSION FOR
CONCILIATION,
MEDIATION
AND
ARBITRATION First
Respondent
HAROLD
MATSEPE
N.O Second
Respondent
ALWYN
JACOBUS DE
WAAL Third
Respondent
JUDGMENT
A
VAN NIEKERK, AJ
Introduction
1
.
This is an unopposed application to review
and set aside a ruling by the Second Respondent (the Commissioner)
when on 16 March 2006,
he refused to dismiss a dispute referred to
the First Respondent (the CCMA) rather than reschedule the matter for
an arbitration
hearing on a future date.
2
.
In brief, the background facts are that the
Third Respondent (De Waal) was employed by the Applicant (the
Company) until February
2005, when he was dismissed for misconduct.
He referred a dispute to the CCMA. The dispute remained unresolved
and was ultimately
set down for arbitration on 2 February 2006. By
consent, the matter was postponed and was again set down for
arbitration on 16
March 2006. Neither De Waal or his legal
representative attended the proceedings. Prior to the arbitration
hearing, De Waal’s
attorney, addressed a letter to the CCMA
requesting that the arbitration proceedings be postponed. A copy of
this letter had not
been sent to the Applicant, nor had the
Applicant’s consent to the proposed postponement been sought.
Despite
the Company’s contention that the referral should be
dismissed, the Commissioner, as I noted above, issued a ruling
requiring the dispute to be rescheduled, and ordered that the De Waal
pay the wasted costs of the day.
3
.
In his ruling, the Commissioner records
that the letter referred to above was received from De Waal’s
attorney on 23 February
2006, and that the reason for his
unavailability was explained in that letter. Although the
Commissioner notes that
De Waal’s attorney did not follow the
correct procedures in terms of the CCMA’s rules, he noted that
the request had
been timeously made, and that rescheduling the matter
would avoid severe injustice on the part of the Applicant (who had
relied
on his attorney under the circumstances) and that this would
permit both parties “equal chance of presenting their case
before
me”.
4
.
In these proceedings, the Company contends
that a party requesting a postponement of CCMA proceedings must
inform the other party
of its intention and that in the absence of
confirmation that a postponement has been granted, is required to
attend the proceedings
and renew the request for a postponement. The
Company avers that section 138(5) of the Act confers no discretion on
a Commissioner
and compels a Commissioner to dismiss a matter where a
referring party, properly notified of the proceedings, fails to
attend.
5
.
The Company’s argument overlooks the
plain wording of section 138(5). That section provides that if a
party fails to appear
at arbitration proceedings, and that party had
referred the dispute to the CCMA, the Commissioner
may
dismiss the matter. This formulation
clearly confers a discretion on a Commissioner either to dismiss a
matter, or, as the Commissioner
did in this instance to postpone a
matter for hearing on a later date. The section does not compel a
Commissioner to dismiss a
matter in all instances where an Applicant
fails to attend or to be represented at arbitration proceedings.
6
.
In the present matter, De Waal’s
attorney had not complied with the Rules relating to applications for
postponement, nor had
the attorney done the company the courtesy of
forwarding a copy of the letter addressed to the CCMA, requesting a
postponement.
However, I am not persuaded that in electing to
reschedule the arbitration on the basis of the letter addressed to
the CCMA, the
Commissioner can be said to have reached a conclusion
to which no reasonable Commissioner could reach. While parties to
proceedings
in the CCMA should comply with the relevant rules, their
failure to do so is not always fatal. An appropriate admonition by a
Commissioner
may be a reasonable response in the circumstances, for
example, an order that a party failing to comply strictly with the
Rules,
pay the wasted costs (as was the case here).
7
.
I accordingly make the following order:
1
.
The application to review and set aside the
Second Respondent’s ruling is dismissed;
2
.
The matter is remitted to the CCMA for
arbitration of the dismissal dispute between the Applicant and the
Third Respondent;
and
3
.
There is no order as to costs.
_________________________________
ANDRE
VAN NIEKERK,
Acting
Judge of the Labour Court
Date
of Hearing:. 4 March 2008
Date
of Judgment: 12 March 2008
APPEARANCES
For
the Applicant:. Fluxmans Inc
Ref:
BM/bm/90103/4589