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[2009] ZALCJHB 14
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South African Airways (Pty) Ltd v Oosthuizen (Comissioner) and Others (JR1271/05) [2009] ZALCJHB 14 (5 March 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
IN JOHANNESBURG)
CASE
NUMBER: JR1271/05
In
the matter between:
SOUTH
AFRICAN AIRWAYS (PTY)
LTD APPLICANT
AND
S
OOSTHUIZEN
(COMISSIONER) 1
ST
RESPONDENT
CCMA 2
ND
RESPONDENT
UNITED
ASSOCATION OF SOUTH
AFRICA 3
RD
RESPONDENT
F
VAN
OUDSTSHOORN 4
TH
RESPONDENT
REASONS
FOR JUDGMENT
AC
BASSON, J
[1]
On 6 June 2007 this Court made the following order:
1.
The Application to review and to set aside the rescission ruling
that
had been issued by Commissioner Oosthuizen under the auspices of the
CCMA is dismissed.
2.
The Applicant is ordered to pay the costs.
Herewith brief reasons
for this order:
[2]
This was an application to review and set aside the rescission ruling
of the First Respondent (hereinafter referred to as “the
Commissioner”) delivered on 11 May 2005.
[3]
The Applicant is the South African Airways (Pty) Ltd (hereinafter
referred to as “the Applicant”). The Fourth Respondent
Mr. van Oudtshoorn (hereinafter referred to as “the
Respondent”), was employed by the Applicant. The Respondent
referred
a dispute to the Second Respondent (hereinafter referred to
as “the CCMA”) in terms of which he claimed that he had
been unfairly constructively dismissed, alternatively that the
Applicant had been guilty of selective re-employment. The Arbitration
hearing became part-heard pursuant to the hearing held on 24 October
2004. The hearing on 24 October 2004 was postponed because
the
Applicant’s representative (Ntombela) requested a postponement
as their witnesses were not available. The hearing was
re-scheduled
for 10 and 11 January 2005. The hearing continued on 10 January in
the absence of the Applicant’s representative
(Ntombela).
Applicant’s
case
[4]
The deponent to the founding affidavit (Ntombela) states that he did
receive notification of the hearing and that it was his
intention to
represent the Applicant at the hearing. Ntombela, however, did not
attend the hearing hence the default judgement
against the Applicant.
Ntombela further states in the founding affidavit that he did intend
to attend the hearing but that he felt
dizzy and nauseous on his way
to the arbitration hearing. He stopped along the way and a person
with the name of “Sabelo”
came to assist him where he was
lying on the grass lawn. This Sabelo then drove Ntombela to the
doctor, Dr. Jo van Tonder, in Centurion.
He was, according to his
papers, administered a drip and was under the supervision of the
doctor until 17H00. He was informed by
his doctor that he showed
signs of diabetes mellitus and that told to report back to the
surgery the following day. Ntombela states
that he asked Sabelo to
contact the CCMA and advise them of his sudden illness. According to
him Sabelo did so twice in his presence
but the phone was not
answered by the CCMA. Ntombela also states that he left a message on
the cellular phone of Mr. van Niekerk
(“Van Niekerk” of
the United Association of South Africa) the representative of the
Respondent. He also phoned Mr.
Adriaan Van Rensburg (“Van
Rensburg”) for assistance to reach Van Niekerk. According to
Ntombela, Van Rensburg told
him that Van Niekerk’s cellular
phone was switched off. Van Rensburg also informed Ntombela that he
left a message on the
cellular phone of a certain Ms. Susan Venter
(“Venter”). According to the papers Venter was a witness
of the Applicant.
[5]
The hearing proceeded in the absence of Ntombela and a default award
was rendered in favour of the Respondent. The Applicant
launched a
rescission application setting out the events that gave rise to the
default award. The application for rescission was
opposed. The
Applicant opposed the application for a rescission on various
grounds. In brief, it was submitted (
inter alia
) on behalf of
the Respondent that Ntombela was in willful default. It was submitted
that this was the second time that a default
award was made against
the Applicant and that there was a clear pattern in the conduct of
the Applicant. It was further pointed
out that the Applicant
requested a postponement of the arbitration on the first day of the
hearing due to the non-availability
of certain witnesses. Yet when
the arbitration resumed neither Ntomebela nor his witnesses arrived.
Van Niekerk disputed the allegation
that he received a call from
Ntombela stating that he was ill. The only message received indicated
that the Applicant’s representative
was not available as he was
“
out of town
”. Van Niekerk further stated that he
only received a call from Ntomebla at 11H30 stating that he was not
available to attend
the case.
The
Award
[6]
In arriving at a decision, the Commissioner took the following into
account:
(i)
The matter has dragged on for a number of years and in many
instances
the postponements were due to the requests from the Applicant. The
Commissioner was of the view that the Respondent suffered
prejudice
as a result of the actions of the Applicant.
(ii)
The Applicant has failed to attend one of the previous hearings and
that
resulted in a default award (the first default award) which was
eventually set aside.
(iii)
The present (second) default award was again as a result of the
non-attendance
of the Applicant. The Commissioner noted that Ntombela
stated that he was ill. However, no confirmation of his version was
presented
to the CCMA. More in particular, the person Sabelo did not
confirm his version.
(iv)
The allegation that Ntombela elicited the assistance of Van Rensburg
and Venter
is also unsubstantiated.
(v)
Finally, the Commissioner took into account the fact that the matter
was postponed from 24 October 2004 in order for the Applicant to
bring further witnesses. Despite this, the attendance register
makes
no mention of the fact that there were any witnesses for the
Applicant.
[7]
After evaluating the submissions on behalf of the Applicant, the
Commissioner came to the conclusion that Ntombela was irresponsible
in dealing with the matter. The rescission application was
accordingly dismissed.
Merits
of the review
[8]
In brief it was the Applicant’s case that the ruling “
was
not rationally justifiable in light of the evidence and material
placed before her
” and that “
she misdirected
herself in a number of respects
”. I have read the opposing
papers filed on behalf of the Respondent. In brief it was their
submission that the Applicant
was engaged in a delaying tactic and in
support of this submission set out the following background facts to
this matter.
(i)
It appears that the matter formally commenced on 2 May 2003
when SAA
raised a point
in limine
about the nature of the dispute. This
resulted in a postponement of the hearing whereafter the CCMA
Commissioner ruled against
the Applicant.
(ii)
The matter was again set down for 9 October 2004. The Applicant’s
representative requested a postponement to allow him to bring
additional witnesses. The request was approved and the case was
postponed to 25 November 2003. Ntombela arrived at the CCMA and
informed the CCMA that the witnesses were not available and requested
a further postponement. The Respondent agreed to postpone after
having been informed by Ntombela that the Applicant would consider
a
settlement. On 12 December 2003 the Respondent was informed
that there would be no settlement.
(iii)
A new date for the hearing was set for 24 March 2004. On that date
the representative
of the Applicant did not attend and a default was
made in favour of the Respondent. A rescission was subsequently
granted and the
matter was rescheduled for 24 October 2004 with a new
commissioner. At the commencement of the hearing the point
in
limine
– similar to the one raised on 2 May 2003 - was
again raised and again rejected by the CCMA commissioner. At the end
of the
hearing the representative again requested a postponement to
allow the Applicant to bring additional witnesses.
(iv)
A date was set for 10 and 11 January 2005. Again the representative
of the
Applicant did not arrive. A default award was rendered. Again
the Applicant sought a rescission which was dismissed by the
Commissioner.
It is this rescission ruling that is now the subject of
the present review.
[9]
The rescission application was made in terms of Rules 31 and 32 of
the Rules of the CCMA.
[10]
The Labour Court in in
Northern Training Trust v Maake &
Others
(2006) 27 ILJ 838 (LC) confirmed the test to be applied by
a Commissioner in a application for rescission in terms of section
144(a)
as follows:
"The enquiry in
an application for the rescission of an 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 the
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 necessarily deal fully with
the merits of the case.
[11]
In
Shoprite Checkers
(
Pty
)
Ltd v CCMA & Others
[2007] 20 BLLR 917
(LAC) the Labour Appeal Court held that in
applying section 144 of the LRA, a Commissioner "
is in the
same position as a judicial officer in the civil courts when
considering an application for rescission
". The Court was in
agreement with the principle that the civil courts had always
retained discretion to grant rescission of
a judgment on good cause
shown. The Court also referred to the decision in
De Wet &
others v Western Bank Limited
1979 (2) SA 1031 (A)
at 1024F where the Appellate Division (as it then was) stated:
"Broadly
speaking, the exercise of the court's discretionary power appears to
have [been] influenced by consideration of justice
and fairness,
having regard to the facts and circumstances of the particular case.
The onus of showing the existence of sufficient
cause for relief was
on the application in each case, and he had to satisfy the court,
inter alia, that there was some reasonably
satisfactory explanation
why the judgment was allowed to go by default
."
The
Labour Appeal Court also stated that circumstances may exist which
fall outside of those referred to in section 144 of the LRA
and that
in such cases, logic and common sense would dictate that a defaulting
party should, as a matter of justice and fairness,
be afforded a
remedy. The Court concluded as follows:
"It follows that
if one was to hold that section 144 of the Act does not allow for the
rescission of an arbitration award in
circumstances where good cause
is shown and that an applicant who seeks rescission of an arbitration
award was compelled to bring
the application within the limited
circumstances, allowed by the wording of the section, it would lead
to unfairness and injustice.
In my view, this would be inconsistent
with the spirit and primary object of the Act referred to above.
Furthermore, I am of the
view that to interpret section 144 of the
LRA, 66 of 1995 so as to include 'good cause' as a ground for
rescission to give the
Act an interpretation that is in line with the
right provided for in terms of section 34 of the Constitution of the
Republic of
South Africa 1996 because, if section 144 of the LRA 66
of 1995 is not interpreted in that way a party who can show good
cause
for his default will be denied an opportunity to exercise his
right provided for in section 34 of the Constitution of the Republic
of South Africa, 1996, despite the fact that he may not have been at
fault for his default. That would be a grave injustice."
(At
paragraph [33]).
The
Labour Appeal Court in that case upheld the appeal on account the
basis that the Commissioner had taken account only of one
aspect of
the applicable test. The Court thus concluded that the Commissioner
had failed to weigh together all the relevant factors
in determining
whether it was just and fair, and, therefore, whether good cause had
been shown for the rescission of the arbitration
award.
[12]
Should the Commissioner's refusal to grant the application for
rescission be reviewed and set aside? In deciding this issue
regard
must be had to the decision in
Sidumo & others v Rustenburg
Platinum Mines Ltd & others
[2007] 12 BLLR 1097
(CC). In this
case the Court held that the test for review is the co-called
"
reasonable decision-maker test
". The question to be
asked is whether or not the decision arrived at is one which a
reasonable decision maker could not have
arrived at. If this question
is answered in the affirmative this Court will interfere with an
arbitration award or ruling. In
Edcon Limited v Pillemer NO
&Others
(2008) 29
ILJ
614 (LC)
.
The Labour
Appeal Court held as follows in respect of the discretionary powers
of the Commissioner:
". . .
boils down to saying the decision of the commissioner is to be
reasonable . . . meaningful strides
are taken to refocus
attention on the supposed impartiality of the commissioner as a
decision-maker at the arbitration whose function
it is to weigh all
the relevant factors and circumstances of each case in order to come
up with a reasonable decision. It is in
fact the relevant factors and
the circumstances of each case, objectively viewed, that should
inform the element of reasonableness
or lack thereof'.
" (Ad
paragraph [21].)
[13]
If regard is had to the reasoning of the Commissioner in arriving at
a decision I am of the view that the decision arrived
at is one which
a reasonable Commissioner could have arrived at. The decision of the
Commissioner certainly falls within the bounds
of reasonableness (see
Bato Star Fishing
(
Pty
)
Ltd v Minister of
Environmental Affairs & Tourism & others
2004 (4) SA 490
(CC):
“
[45] What will
constitute a reasonable decision will depend on the circumstances of
each case, much as what will constitute a fair
procedure will
depend on the circumstances of each case. Factors relevant to
determining whether a decision is reasonable or not
will include the
nature of the decision, the identity and expertise of the
decision-maker, the range of factors relevant to the
decision, the
reasons given for the decision, the nature of the competing interests
involved and the impact of the decision
on the lives and
well-being of those affected. Although the review functions of the
Court now have a substantive as well as a procedural
ingredient, the
distinction between appeals and reviews continues to be significant.
The Court should take care not to usurp the
functions of
administrative agencies. Its task is to ensure that the decisions
taken by administrative agencies fall within the
bounds of
reasonableness as required by the Constitution. “
[14]
A reasonable Commissioner
could have arrived at the conclusion reached by the Commissioner in
the present case. It is certainly
not unreasonable to refuse the
rescission on the basis of the largely unsubstantiated claims of
illness (in the absence of a confirmatory
from the doctor or from
Sabelo who allegedly drove him to the doctor). The Commissioner was
also entirely reasonable to take into
account that the claims that
Van Rensburg and Venter who allegedly assisted Ntombela were
unsubstantiated. There is no explanation
why these two individuals
could not depose to confirmatory affidavits. According to the papers
Venter was one of the Applicant’s
witnesses. The Commissioner
specifically finds that no witnesses for the Applicant signed the
attendance register. At the very
least one would have expected Venter
to confirm in an affidavit that she was there. Yet she remained
silent. I also find that it
was not unreasonable for the Commissioner
to have found that there was a pattern of postponements in order to
obtain witnesses
and then not to appear. It happened twice. Lastly,
the Commissioner was also not unreasonable in drawing an adverse
finding from
the fact that there is no evidence that the witnesses
for the Applicant did in fact appear at the hearing in January in
circumstances
where their attendance was the reason for the
postponement in the first place. As already pointed out Venter could
have deposed
to an affidavit stating that she was there as a witness.
I am accordingly satisfied that the Commissioner properly evaluated
all
the evidence and came to a reasonable decision.
[15]
In the event I find that
there is no reason to interfere with the discretion exercised by the
Commissioner.
AC
BASSON, J
DATE
OF REASONS: 5 MARCH 2009