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[2008] ZALCJHB 62
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Score Supermarket Kwa Thema v Commission for Conciliation Mediation And Arbitration and Others (JR4152/06) [2008] ZALCJHB 62 (5 June 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
No: JR 152/06
In
the matter between:
SCORE
SUPERMARKET KWA THEMA
APPLICANT
And
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
FIRST
RESPONDENT
D
T MASOTE NO
SECOND
RESPONDET
M
TSATSIMET
THIRD
RESPONDENT
M
RAFEE N O
FOURTH
RESPONDENT
SACCAWU
FIFTH
RESPONDENT
M
MABENA
SIXTH
RESPONDENT
JUDGMENT
MOLAHLEHI
J
INTRODUCTION
[1] The applicant in this
matter seeks an order to review and set aside:
(a)
the arbitration award dated 10 November
2004, including its variation which was issued by the second
respondent on the 26
th
January 2005 under case number GA 33536-04,
(b)
The ruling issued by the third and
fourth respondents respectively dated August 2005 and October 2005.
[2]
The applicant further raised the issue of CCMA’s jurisdiction
in the light of the fact the matter was disposed of through
the
ruling issued under case number GA 22967/04. In this regard the
applicant pleaded
res judicata.
[3]
The applicant also filed an application for condonation for the late
filing of its review application in terms of s145 of the
Labour
Relations Act 66 of 1995 (the Act) which was late by 18 (eighteen)
days. The explanation for the lateness is said
to be due to the
fact that the attorney who was responsible for this matter went away
on annual leave between the periods of 24
December 2005 to 9 January
2006. There was apparently during this period no one at the
applicants attorneys of record to
attend to this matter.
[4] The explanation
proffered by the applicant is in my view reasonable and acceptable.
The application was not opposed.
The condonation is accordingly
granted; regard being had to the period of the delay and the
explanation.
BACKGROUND FACTS
[5]
The Sixth respondent, Mr M Mabena (the employee) was dismissed by the
applicant on the 11 June 2004, following a disciplinary
hearing where
he was charged with serious misconduct.
[6]
Following his dismissal the employee referred an unfair dismissal
dispute to the first respondent (CCMA). The applicant
disputed
and challenged the alleged unfair dismissal dispute. The CCMA
scheduled the dispute for a
con/arb
hearing on the 10 August 2004, under case reference GA 22967-04. It
is alleged that the employee and the fifth respondent (the
union)
failed to attend the hearing and Commissioner Hlongwane dismissed the
application for that reason
.
[7]
The applicant contended that subsequent to the dismissal of the
employee’s initial referral which was under case number
GA
22967-04 the applicant re- referred the matter to the CCMA under case
GA 33536-04.
GROUNDS FOR REVIEW
[8]
The applicant contended that the arbitration award under case number
GA 33536-04 should be reviewed and set aside on the basis
that the
dispute between the applicant and the union and its members was
res
judicata
at the time that the default
award and the variation thereof were issued.
[9]
The second ground upon which the applicant relied on was that it
never received the notice of set down for the hearing of arbitration.
[
10
]
The union contended that they only made
one referral which is case number GA 3365-4 and that they were not
aware of case number
GA22967-05. The union also indicated that the
applicant initially complied with the award in that the employee
reinstated in terms
of this award and that it was only after (5) five
month of the reinstatement that the employee was told to leave his
employment.
THE AWARD AND RULINGS
[
11
]
The arbitration award under case GA
33536-04 was issued by Commissioner Masote on the 26 January 2005.
[
12
]
During August 2005, Commissioner
Tsatsimpe issued a ruling in which an application to rescind the
award issued under case GA 335360-04
was dismissed. In her background
to the application for rescission Commissioner Tsatsimpe
inter
alia
indicated that the employer
contended before her that the unfair dismissal dispute referred to
the Commission by the employee was
dismissed on the 10 August 2004
and that matter was dismissed under case GA 222967-04.
[
13
]
As concerning the dispute under case
GA22967-04, Commissioner Tsatsimpe found that:
“
It
is correct that the Employee had referred a dispute to the Commission
and was given the number GA 22967- 04 this case was indeed
dismissed. The Employee again referred a dispute to the
Commission. He stated on the referral that the dispute arose on the
11 June 2004. The Commission received it on 22 June 2004 well
within the stipulated time period. This referral was
served on
the employer and the commission does have jurisdiction to deal with
it”.
[
14
]
Commissioner Tsatsimpe issued another
rescission ruling this time around she accepted the applicant’s
explanation and rescinded
the award granted under case number GA
335360-04.
[
15
]
A month later Commissioner Raffee
issued a ruling in terms of which he ruled as follows:
“
On
perusal of the file I found 2 conflicting rulings with rescission.
The rescission ruling dated August
2005
does not grant rescission. The ruling dated 21 October 2005 grants
the rescission to the employer. The employer did not
make
application to the Labour Court to set aside the ruling dated August
2005. Therefore the ruling dated August 2005 must
be upheld and
the ruling dated 21 October 2005 is irregular.”
[16]
The essence of commissioner Rafee’s ruling is that it reviewed
and set aside the ruling of Commissioner Tsatsimpe of
the 21 October
2005.
[17]
Before dealing with the main ground of review raised by the applicant
being
res judicate
,
I am of the view that it is necessary to deal briefly with the ruling
of Commissioner Raffee which declared the ruling of commissioner
Tsatsimpe to be irregular.
[18]
The question that arises from the ruling of Commissioner Raffee is
whether the CCMA Commissioners have powers or authority
to review or
declare other Commissioners’ ruling or arbitration awards
irregular.
[19]
It is trite that in dealing with unfair dismissals the CCMA
Commissioners derive their powers and authority from the provisions
of the Act and the CCMA rules. They are thus in this regard required
to keep within these bounds of authority set out by the Act
and the
rules and therefore in exercising their powers as Commissioners they
must do so in the manner prescribed by the Act.
[20]
In as far as the power and authority to rescind their own and other
Commissioners’ ruling and award, their powers and
authority are
set out in section 144 Act.
[21]
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 the award. It has been held that in order to
succeed in an application for rescission the applicant
must show good
cause for not attending the hearing on the scheduled date. See
Northern Training Trust v Marquee and
Others (2006) 27 ILJ 838(LC), Foschini Group (Pty) Limited v/s
Commission for Conciliation
Mediation and Arbitration and Others
(2002) 23 ILJ 1597 (LC); Halcyon Hotel Pty Ltd t/a Varaze v CCMA and
Others
(2001) 8 BLLR 911
Shoprite Checkers (Pty) Ltd v/s CCMA and
Other
(2007) 20 BLLR 9178
(LAC).
[22]
In my view the ruling of Commissioner Raffee that the ruling of
Commissioner Tsatsimpe is “
irregular
”
amounts to an action lacking in authority.
[23] I
now proceed to deal with the explanation by the applicant for not
attending the hearing of case GA33536-04. The explanation
given by
the applicant for not attending the hearing was that it never
received the notice of set down. The last time it
received a
notice was when the matter was set down under case number GA 22967-04
for 10 August 2004. On that day the matter was
dismissed for non
attendance by the employee. There is no proof in the record
that indicates that the notice of set down
for case number GA
33536-04 was served on the applicant.
[24]
Thus the award under case number GA 33536-04 ought to have been
rescinded because it was issued erroneously in the absence
of the
other party. It also ought to be rescinded because the
applicant had shown good cause for not attending the hearing.
[25] I
now proceed to deal with the issue of
res
judicata.
In terms of rule 30 of the
CCMA rules the Commissioners have power to dismiss the matter if the
referring party fails to attend
the proceedings. In exercising
the powers given to him, Commissioner Hlongwane issued a written
ruling on the 10 of August
2004 dismissing the employee’s case
under case no: GA 22967/04. This ruling was never rescinded or
reviewed and set
aside.
[26]
Although the union during argument submitted that they were not aware
of the referral of the same dispute under case GA 22967/04,
it is
clear from the ruling of the second respondent that the second
referral form used by the employee was the same referral form
used by
the employee under case GA 33536-04. It is apparent that the
same referral form which gave rise to case number GA
33536-04 was
submitted by the union on behalf of the employee. The other
alternative possibility is that the CCMA may have
used the same form
twice and allocated two different case numbers to the same matter.
[27]
The union representative indicated in her submissions that initially
the matter was handled by another union representative.
She however
did not indicate at what stage she took over the matter. She also did
not indicate whether by the time the matter landed
on her desks the
dispute had already been referred to the CCMA.
[28]
It is evidently clear that the 7.11 dispute referral form was faxed
to the CCMA twice. It is undisputed that the CCMA
received the
referral relating to the alleged unfair dismissal which arose on the
11 June 2004 on the 22 June 2004. It is
this referral which was
schedule for a hearing on the 10 of August 2004 and it is the same
referral which was dismissed for non
attendance of the employee on
that same day.
[29]
The question that arises from accepting that two referral forms were
sent to the CCMA is whether the second referral was made
with the
view of institution proceedings once it became known that the case
number GA 22967/04 was dismissed or the 7.11 forms
were sent by the
union and the employee respectively, with the view to ensuring that
the referral is indeed received by the CCMA.
If the former was
proven then the plea of
res judicata
would be sustainable. However, if the probability favours the
latter then it would be unfair in my view to uphold the plea.
[30] It is an established
rule of our law that for the plea
res judicata
to succeed it
is necessary to establish that a final judgement has been made
involving:
(a)
the same subject matter;
(b)
based on the same facts; and
(c)
Between the same parties.
See
Food and General Workers’ Union
and Others v Picardy Hotels Limited
(1999) 12 BLLR 1274
(LC) and
Mitfords Executive v Abden Executors
1917 AD 683
[31]
There is no doubt that the referral forms used by the employee and
the union in both cases GA 22967/04 and GA 33 536-04 were
the same.
The subject matter is the same and the parties are the same. On
the basis of this, the conclusion should
be that the plea of
res
judicata
is sustainable. There
is, however, authority that in labour matters consideration of
whether or not to uphold a plea of
res
judicata
, depends on whether in all the
circumstances of a given case it is fair to do so. See
BMW
(DA) (Pty) Ltd v Van Walt (2000) 21 ILJ 113 (LAC).
[32]
It is apparent to me that in the circumstances of this case it would
not be fair to uphold the plea of res judicata. The
employee
and the union deny knowledge of the existence of case number GA
22967/04. The probabilities strongly point to an
administrative
error on the part of the CCMA in the opening of the two cases.
On this point alone, fairness dictates that
the plea of res judicata
be dismissed. There is also no evidence indicating that case number
GA 33536-04 was filed consequent to
the dismissal of case number GA
22967-04.
[35] I
am of the view that in the interest of fairness and to clear the
confusion that has arisen, both cases GA 22967/04 and GA
33 536- 04
should be reviewed and set aside.
[36]
In my view it would not be appropriate in the circumstances of this
case to award costs.
[37]
In the premises I make the following order:
1.
The late filing of the review application
is condoned.
2.
The plea of res judicata is dismissed.
3.
The arbitration award dated 10 November
2004, which was issued by the second respondent on the 26 January
2005 under case number
GA 33 536- 04, is reviewed and set aside.
4.
The arbitration award issued on 10 August
2004, under case number GA 22967/04 is reviewed and set aside.
5.
The ruling issued by the third and
fourth respondents respectively date August 2005 and 21 October 2005
and 30 November 2005,
issued under case number GA 33 536- 04 is
reviewed and set aside.
6.
This mater is remitted back to the first
respondent for consideration on the merits of the dispute and to be
heard by a commissioner
other than the second to the fourth
respondents.
7.
There is no order as to costs.
_______________
Molahlehi
J
Date of hearing: 13 March
2008
Date of Judgment: 05 June
2008
APPEARANCES
For the Applicant: Ms MM
NTSHOANE (ATTORNEY)
Instructed by: SNYMAN
ATTORNEYS
For the Respondent: Mr
MPHO MJEZA (UNION OFFICIAL)
Instructed by: SACCAWU