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[2011] ZALCJHB 1
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Production Institute of Southern Africa (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR1974/2009) [2011] ZALCJHB 1; (2011) 32 ILJ 1712 (LC) (13 January 2011)
IN THE LABOUR
COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
Reportable
CASE NO:
JR1974/2009
In the matter
between:
PRODUCTION
INSTITUTE OF
SOUTHERN AFRICA
(PTY) LTD
…...............................................
Applicant
and
COMMISION
FOR CONCILATION
MEDIATION AND
ARBITRATION
…...............................
First
Respondent
GERALDINE
DUNN
….....................................................
Second
Respondent
SISANDA SONTSHAKA
….................................................
Third
Respondent
JUDGMENT
MOLAHLEHI J
Introduction
This is an
application to review and set aside the ruling issued by the second
respondent (the commissioner) under case number
GAJB36806-08. In
terms of the ruling the commissioner rescinded the ruling which had
dismissed the third respondent’s (the
employee) unfair
dismissal claim. The case of the employee had been dismissed because
of his failure to attend the arbitration
hearing which had been
scheduled for 25 March 2009. It is common cause that the employee
did receive the notice of arbitration
hearing but for the reasons
set out later in this judgment failed to attend the hearing. His
attorney also failed to attend the
hearing and explanation has been
rendered.
Background facts
The
employee was dismissed following several charges of misconduct. He
did not agree with the fairness of the dismissal and as
result
referred a dispute concerning an alleged unfair dismissal to the
first respondent (the CCMA) for arbitration. The arbitration
was
scheduled for hearing on the 25
th
March 2009 at
12h00.
Mr. Lottering, the
deponent to the founding affidavit of the applicant arranged to have
a preparation meeting earlier at 10h00,
on that day with the
applicant’s attorney. Whilst waiting at the restaurant he
received a telephone call from the applicant’s
attorney
informing him that the employee’s attorneys had sent a letter
indicating that the matter would not proceed on that
day as the
employee was sick and had attached to the letter a doctor’s
sick note.
As stated earlier it is
common cause that neither the applicant nor his attorney attended the
arbitration hearing. After satisfying
himself that a proper notice of
the hearing was issued to the partie,s the commissioner dismissed the
employee’s claim due
to failure to attend the hearing. The
employee was unhappy with the decision to dismiss his referral and
accordingly launched a
rescission application in terms of s144 of the
Labour Relations Act 66 of 1995 (the LRA).
On the 10
th
June 2009, another
commissioner issued a ruling rescinding the dismissal ruling referred
to above. In rescinding the ruling the
commissioner ceased with the
rescission application reasoned as follows:
“
The
application for arbitration was dismissed on the 25
th
March 2009. I
find that the dismissal was erroneously issued as the applicant was
indisposed on the day and had submitted proof
of same. I therefore
find that there is good cause for rescission.”
Principles
governing rescission
The rescission
ruling was granted in terms of the provisions of s144 of the LRA.
Section 144 reads as follows:
“
144.
Variation and rescission of arbitration awards and rulings
Any commissioner
who has issued an arbitration award or ruling or any other
commissioner appointed by the director for that purpose,
may on that
commissioner's own accord or, on the application of any affected
party, vary or rescind an arbitration award or ruling
-
(a) erroneously
sought or erroneously made in the absence of any party affected by
that award;
(b) in which
there is an ambiguity, or an obvious error or omission, but only to
the extent of that ambiguity, error or omission;
or
(c) granted as a
result of a mistake common to the parties to the proceedings.
The procedure for
instituting a rescission application is set out in rule 32 of the
Rules of the CCMA. Rule 32 of the CCMA rules
reads as follows:
“
32 How
to apply to vary or rescind arbitration awards or rulings
An application
for the variation or rescission of an arbitration award or ruling
must be made within fourteen days of the date
on which the applicant
became aware of-
the arbitration
award or ruling; or
a mistake common
to the parties to the proceedings.”
In
Shoprite
Checkers (Pty) Ltd v Commission for Conciliation Mediation and
Arbitration & Others (2007) 28 ILJ 2246 (LAC),
the court held that
good cause should be read into s144 of the LRA. The decision in that
case confirmed what had already been
decided in
Northern
Training Trust v Maake & Others (2006) 27 ILJ 828 (LC),
where the test for
rescission in terms of s144(a) of the LRA was said to be the
following:
“
The
enquiry in an application for rescission on 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, a probability 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 willful 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 need not deal with the merits of the case.
The discretion that
a commissioner exercises in considering a rescission application is
very wide and is the same as that of judicial
officers in civil
cases. See
Martin
v Commission of Conciliation Mediation and Arbitration (2008) 29 ILJ
2254 (LC).
However,
in exercising the power to either grant or refuse the rescission
application, the commissioner has to make sure that
in doing so he
or she applies his or her mind to the factors relevant to such a
determination. Failure to consider or apply one’s
mind to any
of the relevant factors by the commissioner in his or her
consideration of the rescission application could make
such a
decision unreasonable or defective as envisage in s145 of the LRA.
As stated in
Martin’s
case, the Labour
Appeal Court upheld the appeal largely because the commissioner in
that case had taken into account only one
aspect of the applicable
test.
In
dealing with the test which a commissioner faced with rescission
application has to apply Van Niekerk AJ, as he then was, in
Martin’s
case had the
following to say:
“
A
reasonable decision maker in the present circumstances would apply
the relevant test- in other words the test referred to in North
Training Trust and affirmed by the Labour Appeal Court in Shoprite
Checkers. This required her to establish that the notice of
set down
was sent (which she did) and then determine whether the applicant’s
default was willful, and whether she had reasonable
prospects of
success in her claim. A commissioner’s decision cannot be said
to be reasonable when the commissioner fails
to consider all the
materially relevant factors prior to making that decision.”
Even before
considering a rescission application the most important point for
the commissioner in the present matter was to be
satisfied that he
or she has jurisdiction to entertain the application. The
commissioner does not have the power to entertain
a rescission
application if such an application is filed late and no condonation
has been granted. It is trite that when an application
is late an
application for condonation for the late filing of the application
has to be made. The principles governing the approach
to be adopted
in dealing with an application for condonation, is summarised by the
Labour Appeal Court in
National
Union of Mineworkers v Council for Mineral Technology
(1999) 3
BLLR 209
(LAC)
,
wherein it was held that:
"The
approach is that the court has discretion, to be exercised judicially
upon a consideration of all facts, and in essence,
it is a matter of
fairness to both parties. Among the facts usually relevant are the
degrees of lateness, the explanation therefore,
the prospects of
success and the importance of the case. These facts are interrelated,
they are not individually decisive. What
is needed is an objective
conspectus of all facts. A slight delay and a good explanation may
help to compensate for prospects of
success which are not strong. The
importance of the issue of the delay, the prospects of success no
matter how good the explanation
for the delay, an application for
condonation should be dismissed."
It is generally
accepted that in a case involving an individual a strong case need
to be made before condonation can be granted.
It has also been
generally accepted that all the factors to consider in a condonation
application are interrelated and should
be weighed together.
However, there is also authority that says that absence a reasonable
explanation or prospects of success
condonation should be refused.
Prospects of success does not entail the applicant having to proof
on the balance of probabilities
that he or she will succeed when the
full merits of the matter is considered. What an applicant needs to
do is to provide a basis
that shows that he or she has a good chance
of succeeding when the matter is considered on its merits. It is
however not good
enough for the applicant to make a broad and
sweeping statement that he or she has good prospects of success. An
averment that
there are prospects of success or bona fide defense
must be substantiated and backed by facts. A commissioner who simply
accepts
a bare statement that the applicant in a condonation
application has prospects of success fails in the performance of his
or
her duties. It is also a fundamental duty of a commissioner to
satisfy himself or herself that the condonation is properly served
on the respondent for it to be entertained. In other words a
condonation application not served on the other party can never
be
said to be properly before the commissioner.
Evaluation
It is apparent from
the reading of the ruling that what influenced the commissioner in
arriving at the conclusion that the dismissal
ruling ought to be
rescinded was the fact that the employee was ill on the day in
question and therefore the default was not
willful. This seems to be
the only factor which the commissioner considered in arriving at the
decision as she did. The commissioner
did not however, consider and
apply her mind to some critical issues that required her attention
in the consideration of whether
or not rescission should be granted
and more importantly whether the application was properly placed
before her.
The first issue
relates to the late filling of the rescission application. The ruling
dismissing the applicant’s claim was
made on 25
th
March 2009 and the
rescission application was launched on the 12
th
May 2009. The
employee says that his attorney received the ruling on the 3
rd
April 2009. The
rescission application still remain late even on the applicant’s
own version. The employee did not apply for
condonation when he
initially launched his rescission application.
Although, the
rescission application was outside of the 14 (days) within which to
file a rescission application from the day of
becoming aware of the
ruling the employee filed his rescission without filing a condonation
application. The issue of the lateness
of the rescission application
was raised by the applicant in its answering affidavit which was
filed on the 25
th
May 2009. In his
replying affidavit the employee indicates that condonation for the
late filing of the rescission application had
been filed with the
CCMA and that the application was only one day late.
After, receipt of
the replying affidavit the applicant’s attorney wrote a letter
informing the employee’s attorneys
that they had not received
the condonation application. The employee’s attorney did not
take any trouble to respond to the
query and the same applies to the
subsequent reminder.
As indicated earlier
the commissioner issued the ruling condoning and rescinding the
dismissal ruling. The question that has arisen
as a result of this
review application is whether there is any defect in the granting of
the condonation and the rescission ruling
as issued by the
commissioner. In my view the answer to this question has to be in the
positive for the reasons set out below.
It is trite that a
commissioner has a duty in law of ensuring that all affected parties
are properly served with all relevant process
related documents.
The employee does
not deny that the condonation application was not served on the
applicant but contends that it was not necessary
to do so because the
commissioner rescinded the dismissal ruling on his own accord. This
is factually incorrect because the rescission
process was put in
motion by the employee’s application dated the 12
th
May 2009 which was
accompanied by all the relevant documentation in support thereof
including the confirmatory affidavit by the
employee’s
attorney. The application was as indicated opposed by the applicant
who in the answering affidavit raised the
issue of the late filing of
the rescission application including the fact that it was not
accompanied by a condonation application.
Thus this was a formal
application in terms of s144 of the LRA and processed in terms of
rule 32 of the CCMA Rules which required
the commissioner to satisfy
herself that there was compliance with the rules of natural justice
and fair hearing in the ventilation
of the issues in dispute.
In the light of the
above the first enquiry which the commissioner ought to have
conducted before considering the condonation application
was whether,
proper service had been served on the applicant. It is common cause
that the condonation application for the late
filing of the
rescission application was not served on the applicant. Accordingly,
the commissioner failed in the performance of
her duties and
therefore committed a gross irregularity whose consequences amounted
to a denial of a fair hearing for the applicant.
Put differently, the
commissioner considered an application for condonation for the late
filing of the rescission application which
was not properly before
her. It is for this reason that, on this ground alone, the ruling of
the commissioner stands to be reviewed.
Assuming for
whatever reason that the above finding was to be found to be
incorrect, the next question that would arise in the review
application is whether the commissioner in considering the
condonation application and subsequently the rescission application,
applied the relevant test. The key issue in this regard has to do
more with the issue of prospects of success, an issue which the
commissioner needed to consider in relation to the application for
condonation.
Whilst I accept that
prospects of success does not entail the employee having to proof on
the balance of probabilities that he or
she will succeed when the
dispute is considered in the main matter, it is important that the
employee should have given more details
of the charges which were
proffered against him. He says that a wrong procedure was followed
during the disciplinary hearing. And
as concerning substantive
fairness the employee had the following to say:
“
I further
state that there are also issues relating to substantive unfairness
such as unfair duplication of charges or instances
where charges were
not supported by evidence in terms of the disciplinary record but I
was nevertheless convicted on those charges.”
It is not clear
from the above what charges the employee faced and in what way were
they duplicated. I am aware of the general
approach that says in
default hearings commissioners should not be expected to interrogate
what is put before them by the party
that has attended the hearing.
This principle does not however extend to situations where the
appearing party simply makes bare
allegations unsupported by
evidence. In the context of proving prospects of success a litigant
has to show by way of evidence
that there exist a chance of
succeeding when the matter is consider in the main hearing.
In
the present instance had the commissioner applied her mind to what
was presented by the applicant in as far as prospects of success
is
concerned and taken into account the totality of the case presented
by the employee she would have come to the conclusion that
the
employee had failed to discharge his duty of showing prospects of
success. This is even more so if regard is had to the stand
that the
CCMA has taken in relation to matters of this nature. The CCMA has
generally taken a strict approach. In dealing with
rescission, that
approach received support from the courts. An example of where the
court supported the CCMA strict approach in
dealing with rescission
can be found in several cases dating back to
Carephone
(Pty) Ltd v Marcus NO & others
[1998]
11 BLLR 1093
[1998]
11 BLLR 1093
(LAC),
where the applicant’s attorney could not attend the CCMA
hearing because of a bereavement. See also
MIT
Tissue v Theron & others
[2000]
8 BLLR 947
[2000]
8 BLLR 947
.
Similarly, the
commissioner failed to apply her mind to the degree of lateness of
the rescission application. She found the delay
not to have been
excessive. It would seem this finding was made on the basis of the
submission of the employee that the rescission
application was one
day late. In dealing with the degree of lateness the employee says
that:
“
I submit
that from the date that the Senior Commissioner
insisted on a
formal application that my application for
rescission is
late by one day only.”
In his founding
affidavit to the rescission application the employee says:
“
(22)
I am advised, which advice I accept that commissioner
Maseko has to
date not refuted the true position that my medical certificate was in
the file at the time of him making the erroneous
ruling. Further,
this position has not been challenged by the Senior Commissioner in
his correspondence save for him to state that
“
the
commissioner has indicated that a formal application must be made”
without
relying on any application on urgency, which directive or demand.
(23) I am advised
that on the basis of the letter dated 21
st
April 2009 from
Senior Commissioner that there is no necessity to apply for
condonation as it is not alleged in that correspondence
that I am out
of time except be ordered to bring my application on urgency, which I
submit I have.”
(24)
I submit therefore that there is very good reason why the ruling made
by commissioner Maseko on the 25
th
March 2009 should
be rescinded or varied as I was not in willful default and has good
prospects of success.”
It is apparent from
the above that the employee calculated the period from which he had
to make his application for rescission
from date he received the
letter from the Senior Commissioner saying that a formal rescission
application should be made. There
is nothing in the letter from the
Senior Commissioner that suggests anything to do with the time frame
within which the rescission
application needed to be done. In fact a
prudent litigant, who is keen in ensuring that his or her dispute is
finalized as soon
as possible, would have read the letter different
to the advice given to the employee by his attorney. The letter
indicates that
a formal application needs to be made and that it be
made urgently.
The confusion, if
any arose, in the letter of the Senior Commissioner is irrelevant
particularly if regard is had to the fact that
the employee had
throughout been assisted by an attorney. The approach adopted by the
employee’s attorney in this matter
is however very strange and
extraordinary. In the first instance the employee’s attorney
seems to have interpreted s144 of
the LRA to impose a duty on the
commissioner to rescind an arbitration award or ruling on his or her
(the commissioner) own accord
if in the opinion of any of the parties
that award or ruling was erroneously issued. In my view this
interpretation is totally
misplaced. It is clear from the reading of
s144 of the LRA that the commissioner may if he or she is of the
opinion that there
was an error in issuing of the arbitration award
or the ruling on his own accord rescind the award or the ruling.
There is nothing
in law that compels or requires the commissioner to
mero
mutu
rescind
an arbitration award or ruling or give reasons for not doing so.
Where the commissioner does not exercise his or her discretion
to
mero mutu
rescind
an arbitration award or a ruling the law is very clear as to what the
parties in that instance need to do. Section 144 of
the LRA gives any
of the parties the right to file a rescission application on the
basis of the grounds set out therein. And more
importantly rule 32 of
the CCMA Rules states very clearly that a rescission application
should be brought
within
fourteen days of the date on which the applicant became aware of the
arbitration award or ruling.
It
therefore means that in considering whether there has been compliance
with the provisions of rule 32 of the CCMA Rules the first
factual
enquiry is to determine the date upon which the party bringing the
rescission application became aware of the arbitration
award or the
ruling. In the present instance the employee says that he became
aware of the ruling on the 3
rd
April
2009. That is the date when the fourteen days as provided for in the
rules started running.
Having
established the date when the employee became aware of the ruling the
commissioner needed to calculate fourteen days from
that day which
would have been around the 17
th
April
2009. The employee’s application having been launched on the
12
th
May
2009 was clearly late. In my view this is the frame work within which
the commissioner ought to have considered the extend of
the delay
when she considered the delay in the launching of the condonation
application, which as I have indicated was in any case
not properly
before her because it was not served on the applicant.
According to the
employee the fourteen days as provided for in the CCMA rules commence
running as from the 21
st
April 2009 when he
received the letter from the Senior Commissioner. The correct legal
position as indicated above is that the employee
became aware of the
ruling on the 3
rd
April 200. Thus the
case of the employee as was presented before the commissioner who
issued the rescission ruling was that the
only indulgence he was
seeking was only for one day when in law his application was late by
more than double the period provided
for by the CCMA rules. Whereas
the employee sought an indulgence of one day the commissioner gave
him what he did not ask for.
In the light of the
above I am satisfied that the applicant has made out a case for
reviewing the ruling of the commissioner. As
concerning the costs I
see no reason why in law and fairness the applicant should be
burdened with the costs in a matter where
there was no basis for
opposing the review application particularly if regard is had to the
fact that the employee did not deny
that the condonation application
was not served on the applicant. He was therefore aware that the
matter was never properly placed
before the commissioner.
In the premises the
following order is made:
The ruling of
the second respondent issued under case number GAJB36806-08 dated
10 June 2009, is reviewed and set aside.
The ruling
issued under the same case number date 25 March 2009, confirmed.
The respondent
is ordered to pay the costs of the applicant.
_______________
Molahlehi
J
Judge of the
labour court
Date of Hearing:
27
th
August 2010
Date
of Judgment : 13
th
January 2011
Appearances
For the Applicant :
Adv W Hutchinson instructed by Kirchmanns Inc.
For
the Respondent: Mr. Samuels of Samuels Attorneys
13