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[2010] ZALCJHB 58
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National Union of Mineworkers and Another v Commission for Conciliation Mediation And Arbitration and Others (JRJR476/09) [2010] ZALCJHB 58 (26 November 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
CASE
NO: JR476/09
In
the matter between:
NATIONAL
UNION OF
MINEWORKERS First
Applicant
MOLOKO
HENRY
SEKOBA Second
Respondent
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION First
Respondent
SIBONGISENI
HINTSHO
N.O. Second
Respondent
APPOLLO BRICKS (PTY)
LTD Third
Respondent
JUDGMENT
FRANCIS
J
Introduction
1.
This is an application to review and set aside a ruling made by the
second respondent (the commissioner) on 21 October 2008 after
he had
dismissed a referral made by the first applicant on behalf of the
second applicant. The applicants are also seeking
an order to
review and set aside the rescission ruling made by the commissioner
on 19 December 2008 after he had refused to rescind
the order that he
had made on 21 October 2008.
2.
The review application was opposed by the third respondent.
The background
facts
3.
The second applicant was employed by the third respondent as a
front-end loader driver on 28 February 2000. He was dismissed
by the third respondent on a charge of theft in that it was alleged
that he had stolen a computer. His dispute was duly referred
to
the first respondent, the Commission for Conciliation, Mediation and
Arbitration (the CCMA) for conciliation and arbitration.
The dispute was set down for arbitration on 21 October 2008.
The second respondent failed to attend and his representative
arrived
late. The commissioner then dismissed his case and served a
copy of his ruling on the first applicant on the same
day.
4.
The applicants felt aggrieved with the dismissal ruling and applied
to rescind it.
The commissioner’s
ruling
5.
The commissioner issued a rescission ruling dated 19 December 2008.
He has set out the parties’ different versions.
He
recorded that the second applicant stated that he was absent from the
arbitration hearing at the CCMA because he was sick, suffering
from
respiratory problems. He consulted a doctor in Germiston and
attached a certificate as proof. His union representative
went
to the offices of the CCMA in Pretoria by mistake and they telephoned
the Johannesburg CCMA office and the third respondent.
The
union official went back to Johannesburg but was delayed due to
traffic and arrived at the CCMA offices in Johannesburg office
and
found that his referral had been dismissed. He had been accused
of stealing a computer and said that no one had led evidence
to that
effect at his disciplinary hearing.
6.
The commissioner also recorded in his rescission ruling that the
third respondent opposed the rescission application on the grounds
that the second applicant’s reasons given for his absence at
the arbitration proceedings were false. He had allowed
a taxi
driver into the third respondent’s premises without
authorisation and loaded a computer from his hostel room which
is on
the third respondent’s premises. He was implicated in
removing the computer from the third respondent’s
premises.
He was currently employed by First World Labour CC and on the day of
the arbitration hearing was on duty and had
worked the whole day. The
third respondent had obtained proof from the second applicant’s
current employer. The third
respondent investigated the second
applicant’s medical certificate which stated that he was ill
from 21 until 27 October
2008. He had worked on the days when
he was ill and a Mr Mtsoane from the doctor confirmed that the second
applicant only
saw the doctor on 27 October 2008. The third
respondent met the union official who had arrived late for the
arbitration hearing
who told them that he could not get hold of the
second applicant and did not know where he was.
7.
The commissioner said that the second applicant gave a reasonable
explanation for the late filing of the rescission application
which
was three days late. He said that the second applicant had
stated that he was sick and could not attend the CCMA scheduled
arbitration. The third respondent disputed these allegations in
that the second applicant had obtained a medical certificate
under
false pretences to cover up his non appearance at the CCMA. The
commissioner said that the Labour Appeal Court in the
matter of
Shoprite Checkers (Pty) Ltd v the CCMA
and other
had pronounced itself on
rescission applications. The LAC held that in considering
applications for rescissions commissioners
are bound to consider good
cause. It further held that good cause is the consideration of
two factors namely the explanation
for the absence and whether an
applicant has a
prima facie
case.
The commissioner said that the parties had received the notice of set
down and were aware of the arbitration proceedings.
The union
attended late without any knowledge of the second applicant’s
whereabouts. He had said that he was sick and
provided a
medical certificate which was backdated. He had worked on the
day of the CCMA hearing although he alleged that
he was sick which
suggested that he could have attended the scheduled arbitration
hearing. He did not inform his union on
time about the alleged
sickness nor did he apply for the postponement of the hearing.
8.
The commissioner said that he accepted the third respondent’s
submission in that the second applicant only saw the doctor
on 27
October 2008 to cover up for his non-attendance. He found that
there was no reasonable explanation for the second applicant’s
non-attendance at the CCMA on 21 October 2008. The commissioner
said that the submissions and evidence submitted by the parties
about
prospects of success suggested on a balance of probabilities that the
second applicant did not have good prospects of success.
The
commissioner found that the second applicant was in wilful default of
the matter. He condoned the late filing of the
rescission
application and dismissed the rescission application.
The review
application
9.
The applicants felt aggrieved with the rescission ruling and brought
this review application. They have raised several
grounds of
review. I do not deem it necessary to repeat those grounds of
review. The question to be decided is whether
the decision
reached by the commissioner is one that a reasonable decision maker
could not reach.
Analysis of
evidence and arguments raised
10.
It is clear from the explanation given by the second applicant in his
founding affidavit in the rescission application for his
absence on
21 October 2008 is that he was sick, suffering from respiratory
problems. He consulted a doctor in Germiston and
attached a
copy of the medical certificate. He said that he did not call
the union, because his telephone was damaged and
did not have his
representative’s telephone number. His representative
went to the wrong CCMA offices and was delayed
due to the traffic
between Pretoria and Johannesburg due to road works. The
medical report states that he was examined on
21 October 2008 and was
found to have a respiratory tract problem and would be unfit from
work from 21 October 2008 to 28 October
2008. The second
applicant did not say in his founding affidavit that at the time he
was employed at First World Labour.
When this was pointed out
in the third respondent’s opposing papers, he admitted that he
was employed by and said that he
was doing night shift on 21
October. He said that he was sick and on 21 October 2008 bought
tablets from a pharmacy and drank
them. He said that although
he was sick he dragged himself to work as he was new at his work
place because he had started
only on 10 August 2008. He did not
want to lose the job, as it was a temporary job. He worked
night shift the week
of 21 to 27 October 2008. He denied that
the medical certificate was false and said that he was sick from 20
October 2008.
11.
The explanation tendered for his absence at the CCMA hearing was
patently false. He did not tell his representative where
he was
on 21 October 2008. He did not tell him that he was employed.
If he was sick as contended by him and had obtained
a medical
certificate to that effect, it does not make sense that he would
still report to work although he was booked off.
The attendance
register and the letter from his employer showed that he continued to
work. It is not clear why if he continued
to work he went to
obtain a doctor’s letter. The doctor’s letter
states that he was examined on 21 October 2008.
He said that he
was working night shift on 21 October 2008 and had bought tablets
from a pharmacy and drank them. The second
applicant in his
founding affidavit is vague and states that he saw the doctor but
does not state when. He does not clear
this up in his replying
affidavit and only repeats that he was sick. If he had doctored
himself, it is unclear why it is
stated in his doctor’s letter
that he was unfit for work and would resume on 28 October 2008.
He said that he was sick
from 20 October 2008 but the letter states
that he was sick from 21 October 2008. The letter was signed on
27 October 2008
but states that he was examined on 21 October 2008.
It is not clear at what time he consulted the doctor. Was it on
the morning
of 21 October 2008 after he had left his work. When
did he take the tablets?
12.
The second applicant stated that he had to drag himself to work
although he was sick. He had taken tablets when he was
ill but
could not telephone his union representative. He did not deem
it necessary to drag himself to the CCMA offices.
Since
he did not need a medical letter from his employer, he clearly
obtained that to mislead the commissioner about his non attendance
on
21 October 2008. Nowhere in the review application does he
state that he could not contact his representative because
his
telephone was damaged.
13.
Once the commissioner had found that there was no reasonable
explanation for the non attendance on 21 October 2008 there was
no
need for the commissioner to have considered the question of
prospects of success. He however proceeded to deal with that
and found that from the submissions and evidence submitted by the
parties about prospects of success suggested on a balance of
probabilities that the second applicant did not have good prospects
of success.
14.
It cannot be said that the commissioner ruling is not one that a
reasonable decision maker would have made. The fact is
that the
second applicant was absent from the arbitration hearing on 21
October 2008. He had to give a reasonable explanation
for his
absence which he clearly did not. His representative did not
know where he was. He had requested for the matter
to stand
down but arrived late at the hearing. The commissioner was not
expected to wait for him until he eventually arrived.
15.
The application to review the dismissal ruling was filed late.
No proper case has been made out for condonation.
In any event
since second applicant has not given a reasonable explanation for his
absence at the arbitration hearing it follows
that the application to
review the dismissal ruling and rescission ruling stands to be
dismissed.
16.
There is no reason why costs should not follow the result.
17.
In the circumstances I make the following order:
17.1
The application is dismissed with costs.
__________________________
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR
THE APPLICANTS
:
ATTORNEY M E S MAKINTA
FOR THIRD RESPONDENT
:
ATTORNEY ME DUVENAGE
DATE
OF HEARING
: 1
OCTOBER 2010
DATE OF
JUDGMENT
: 26 NOVEMBER
2010