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[2010] ZALCJHB 2
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Mogale City Local Municipality v South African Local Government Bargaining Council and Others (JR1966/08) [2010] ZALCJHB 2 (1 October 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE NO: JR1966/08
NOT
REPORTABLE
In
the matter between:
MOGALE
CITY LOCAL
MUNICIPALITY
Applicant
and
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
First
Respondent
DOLLIE
M N.O
Second
Respondent
TOLI
S N.O
Third
Respondent
MOILOA,
PUMEZA
SIBULELE
Fourth
Respondent
JUDGMENT
BHOOLA
J:
Introduction
[1]
This is an application in terms of section 145 of the Labour
Relations Act 66 of 1995 (“the LRA”), for the review
and
setting aside of a ruling of the third respondent (“the
rescission ruling”) dated 20 August 2008 in which he refused
to
rescind the default arbitration award made by the second respondent.
Background
facts
[2]
The fourth respondent (“the employee”) alleged that she
had been dismissed on 6 June 2006 and referred a dispute
to the first
respondent. Following an arbitration held on 10 October 2006 the
second respondent issued a default arbitration award
in favour of the
employee. The applicant applied for rescission of the award on 26
October 2006, which application was two days’
late and the
applicant also filed an application for condonation.
[3]
The grounds for rescission were that the applicant had good prospects
of success on the merits, was not in wilful default and
would suffer
prejudice should the award stand in that :
(a)
The fourth respondent had not been
dismissed but had been employed in terms of a fixed term contract
which expired;
(b)
She had been offered a further fixed term
contract, which she refused to accept; and
(c)
She had misled the second respondent at the
arbitration by alleging that she earned R25 000.00 per month (on
the basis of the
rejected offer of a new fixed term contract) when
she was earning about R10 000.00 per month.
[4]
The rescission ruling was issued on 20 August 2008 but apparently
only came to the applicant’s attention when the Deputy
Sheriff
arrived to execute it on or about 1 September 2008.
Merits
of the review
[5]
The grounds for the review are that the third respondent committed
misconduct in relation to his duties as a commissioner; committed
a
gross irregularity in the proceedings; and exceeded his powers as a
commissioner.
[6]
In amplification of these grounds the applicant submitted that :
(a)
The third respondent committed misconduct
in relation to his duties in finding that the non-attendance of the
applicant was caused
by an administrative problem and that the
applicant’s personnel should have acted on the notice of set
down. The applicant
alleged that the notice of set down had never
been received. The employee did not oppose the application for
rescission and there
was no evidence or submissions to the contrary
to support the third respondent’s conclusion that the applicant
had received
the notice of set down and should have acted on it.
(b)
The third respondent committed
misconduct in relation to his duties by finding that the personnel in
the Executive Mayor’s
office did not pass the notice of set
down to the relevant office. The evidence before the third respondent
was that the Executive
Mayor’s office also did not receive any
notice of set down.
(c)
There was no evidence to support the
conclusion of the third respondent that “
someone
was sloppy in attending to the legal documents
”
relating to the claim.
(d)
The ruling is ambiguous in that in
paragraph [11] the third respondent grants condonation for the late
filing of the rescission
application, but in paragraph [12] of
his ruling ( the paragraph numbering is duplicated) he states that
the late filing
cannot be condoned.
(e)
The third respondent committed misconduct
in relation to his duties as a commissioner by not considering the
applicant’s prospects
of success on the merits and the
prejudice it would suffer were the award to stand.
[7]
Accordingly, the applicant submitted that, the third respondent
failed to have regard to the material facts and confused the
condonation and rescission applications. In the light of the test in
Sidumo & Another v Rustenburg
Platinum Mines Ltd & Others
(2007)
28 ILJ 2405 (CC), his ruling was one that could not have been made by
a reasonable commissioner in the circumstances.
[8]
Mr Lebea, for the employee, submitted that the award was justifiable
on the facts before the third respondent and is not reviewable.
He submitted that the third respondent applied his mind to the fact
that it was not disputed that the notice of set down had been
sent to
the applicant at its correct telefax number, but it had elected not
to attend the arbitration. The second respondent
had satisfied
himself to this effect when he decided to proceed with the
arbitration and issue a default award. The applicant
simply
denied receipt of the set down but failed to explain this. The third
respondent further applied his mind to both issues
before him, i.e.
the condonation and the rescission applications. It is apparent from
the ruling that he granted condonation and
dismissed the application
for rescission. He clearly made two separate rulings and neither of
them are reviewable. Moreover the
third respondent’s acceptance
of the employee’s evidence that she earned R25000.00 per month
was not challenged by
the applicant and in finding in her favour on
the probabilities the second respondent made a competent award.
The employee’s
failure to oppose the rescission application
does not imply that she consents to the review.
[9]
The applicant’s Counsel, Ms Liebenberg, submitted that service
by telefax is only
prima facie
proof that the notice of set down was sent and does not prove
receipt. The applicant stated in its founding affidavit that it had
not been received. The award of the second respondent is moreover
patently erroneous in that the new offer which the employee had
rejected was nevertheless accepted as proof of her current
remuneration. The applicant has a good defence on the merits and the
quantum and should not be denied the opportunity to present its
defence.
Analysis
and conclusion
[10]
I am in agreement with the submissions made by the applicant. It
would appear from the ruling that the third respondent failed
to
apply his mind to the facts before him. He referred to the affidavit
of the secretary of the Executive Mayor’s office,
in which she
confirmed that the notice of set down, faxed to the Executive Mayor’s
office, had not been received in that
office. However, in his
analysis he focused exclusively on whether the fax number used was
correct and completely disregards the
affidavit. He then inexplicably
concluded that: “
the applicant
failed to show why the personnel in the Executive Mayor’s
office did not pass the notice of set down to the
relevant office”.
He makes certain conclusions about administrative problems, and it is
unclear what evidentiary basis he is relying on. Furthermore,
having
granted condonation for the late filing of the rescission
application, he concludes by stating that: “
Documentary
proof in a form of the Founding Affidavit of Daniel also confirmed
that not only was the applicant’s personnel
unaware of the
statutory time limit to lodge some applications but also that someone
was sloppy in attending to legal documents
related to this case.
Matters cannot be delayed to accommodate internal administrative
problems of Municipalities which have huge
resources to ensure
efficient service in all departments”.
[11]
In my view it is apparent that the third respondent made a ruling
that was contradictory and confusing and that disregarded
the
evidence presented to him. This demonstrates a patent failure
to apply his mind properly and resulted in a ruling that
on the facts
could simply not have been made by a reasonable decision maker.
[12]
Accordingly, the rescission ruling is reviewed and set aside. Given
the delay in this matter and the fact that the full facts
were placed
before me, there would appear to be no merit in remitting the matter
for reconsideration. The rescission ruling is
accordingly substituted
with an order granting condonation for late filing of the rescission
application as well as rescinding
the award of the second respondent.
I do not consider it to be in the interests of law or
fairness to order costs given
that this order is in itself punitive
towards the employee.
_________________
BHOOLA
J
JUDGE
OF THE LABOUR COURT
Date
of hearing: 20 August 2010
Date
of judgment: 1 October 2010
Appearances
For
the applicant: Adv E Liebenberg instructed by Smith Van Der Watt
Attorneys
For
the fourth respondent: Mr M C Lebea (Union Official)