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[2011] ZALCJHB 54
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NUM obo Gabela v Commission for Conciliation Mediation and Arbitration and Others (JR2383/09) [2011] ZALCJHB 54; (2011) 32 ILJ 2714 (LC) (30 June 2011)
LABOUR COURT OF SOUTH
AFRICA
(HELD AT BRAAMFONTEIN)
Case: JR 2383/09
In the matter
between:
NUM obo GABELA, J
…...................................................................................
Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION
AND ARBITRATION
…........................................................................
First
Respondent
CELLIER L, (
N.O.
)
…......................................................................
Second
Respondent
KLOOF GOLD MINE,
a division of
Goldfields SA (Pty) Ltd
…...........................................
Third
Respondent
JUDGMENT
LAGRANGE, J:
Introduction
This
is a review application to set aside a rescission ruling issued by
the second respondent (' the arbitrator') on 3 July
2009. The
applicant, Ms J Gabela (‘Gabela’) also applies for
condonation for the late filing of the review application,
which
was 12 days late. The latter application is unopposed and
condonation for the late filing of the review application is
granted.
Background
facts
On
27 November 2008 the applicant referred an unfair dismissal dispute
arising from an alleged constructive dismissal through
her union,
the National Union of Mineworkers (‘NUM’), to the CCMA.
On 12 February 2009, following the unsuccessful
conciliation of the
dispute, the applicant referred it to arbitration. The dispute was
set down for a conciliation - arbitration
process on 25 March 2009.
According to Gabela, the notice of set down for these proceedings
was sent to NUM's regional office,
which in turn forwarded it to
the branch office. The branch office then notified her full-time
shop steward, Mr Ramokone (‘Ramokone’),
who contacted
her.
On
25 March 2009, Gabela and Ramokone attended the proceedings and a
written agreement was concluded between the union and the
mine. The
agreement was recorded on a CCMA template form bearing the heading
‘award/ruling/order/directive’. Beneath
the heading,
the parties recorded the following:
"
The
above-mentioned parties hereby consent to postpone the matter sine
die. This postponement is granted by virtue of the agreement
between
both parties above mentioned.
File GAJB 36254 - 08,
file GAJ B37534 - 08 and file GAJB 26684/08 to be consolidated into
one file with the primary issue being
constructive dismissal.
"
(
sic
)
Gabela
claims that at this hearing, Ramokone advised the arbitrator that
he would prefer the CCMA to send the notice of set
down directly to
his fax number contained in the request for arbitration of 29
January 2008 in order to avoid the notice been
sent from the
regional office to the branch office. The respondent does not
dispute this allegation, but points out that these
allegations were
only made in the review application and were not placed before the
arbitrator when he decided the rescission
application.
The
matter was enrolled for arbitration on 7 May 2009. According to the
arbitrator, a notice of the hearing had been sent to
both parties
by fax on 2 April 2009. At the hearing neither the applicant nor
her union representative attended and the matter
was dismissed in
terms of section 138 (5) (a) of the Labour Relations Act, 66 of
1995 (' the LRA'). Gabela claims that the
reason they did not
attend the arbitration was that NUM's regional office did not
receive the notice of set down for 7 May
2008, nor did it fax a
notice of the set down to Ramokone’s own fax number which
appeared on the 7.13 Request for Arbitration
form. She further
claims that Ramokone only became aware on 11 May 2009 during a
conversation with Mr Brits (‘Brits’),
the applicant’s
manager, that the matter had been set down on 7 May 2009. Brits had
asked Ramokone why he had not attended
the arbitration proceedings
to which the latter respondent that he had not been aware of the
notice of set down. Once again,
the company does not dispute these
facts but reiterates that they were not placed before the
arbitrator when he considered
the rescission application and
accordingly cannot be relevant to the review thereof.
In
its answering affidavit to the review application the mine alleges
that Ramokone contacted Mr Heathcote (‘Heathcote’),
an
IR officer of the mine, sometime after 2 April 2009 in order to
schedule a pre-arbitration meeting on 23 April 2009. The
applicant
claims that the deponent to the mine’s answering affidavit Mr
Rautenbach (‘Rautenbach’) could not
attest to this as
it was only Heathcote, who is now deceased, who would have had
knowledge of the telephone conversations between
himself and
Ramokone. However, Heathcote, when he was still alive, did say as
much in his answering affidavit in the original
rescission
application. In that affidavit, Heathcote went further and said
that Ramokone did not attend the scheduled hearing
and only
contacted him again after the arbitration.
Gabela
says she only personally learnt of the date of the arbitration from
the company’s industrial relations officer,
Ms Khoza
(‘Khosa’), on 14 May 2009. The following day she made
enquiries at the CCMA where she received a copy
of the dismissal
ruling.
The
individual applicant then applied for rescission of the dismissal
of her case. Gabela claims that she filed the rescission
application without the assistance of NUM because Mr Ramokone was
on leave at the time and was the only one who knew about
the facts
of the case. On 3 July 2009, the application for rescission was
dismissed. The arbitrator's brief reasons for dismissing
the
rescission application read as follows:
"
2) In spite of
evidence to the contrary filed in the CCMA file, the employee
alleges that his union NUM did not receive notice
of set down and
was therefore not in wilful default of the proceedings. There is no
confirmatory affidavit from NUM. The employer
argues that further to
receiving the notice of set down from the CCMA they engaged with the
NUM official and scheduled a pre-arb
meeting for 23 April 2009. NUM
failed to attend the meeting, but they were indeed aware of the set
down for the arbitration.
The submission is not in dispute.
3) The employee
argues that his constructive dismissal allegation arises from the
failure by the employer to promote him which
evolved into an
untenable employment relationship caused by the employer. The
employer argues that the applicant filed an alleged
ULP dispute
regarding the promotion issue, but resigned prior to the resolution
of that dispute. He has subsequently been re-employed
by their
sister company South Deep Gold mine.
4) The employee's
explanation for failing to attend the arbitration proceedings has
little merit. His prospects of success are
equally unconvincing.
"
(
sic
)
According
to Gabela, the rescission ruling was faxed to her direct fax number
and to the regional office of NUM.
The
evidence before the arbitrator
In
her affidavit in support of the rescission application, Gabela
provides the following reasons for her failure to attend the
arbitration hearing on 7 May 2008:
"
At all material
times prior to the date of hearing I did not receive a notice of set
down from the CCMA. I am aware that the CCMA
also sends text message
and despite my cell number appearing on the 7.11 form, I was not
notified. Further, in this matter I
am represented by the National
union of Mineworkers and the offices were not notified by the CCMA.
"
(
sic
)
In
the paragraph headed "General" on the pro forma
affidavit, Gabela further states that she had not lost interest
in
the matter as she intended to finalise the proceedings before the
CCMA and that she would be prejudiced if the rescission
application
was refused because there is no forum that could deal with the
matter at little cost.
From
the bundle of documents that was before the arbitrator it does
appear in the 7.13 Request for Arbitration form that the
applicant
did provide a different fax number from that of the regional
office. This is contrary to Heathcote’s answering
affidavit
opposing the rescission application in which he stated: "
It
is submitted that the applicant at no stage made amendments in
respect of the cited contact facsimile number nor for that
fact on
any detail relating to the representative in the matter, the NUM.
"
(
sic
). However, because the applicant never made an
allegation to the contrary in her founding affidavit, nor filed a
replying affidavit
to gainsay what Heathcote had stated, her
version of her alternative fax details was not drawn to the
arbitrator’s attention.
Apart
from what has been mentioned elsewhere, Heathcote confirmed that
the mine received notice of the set down of the arbitration
from
the CCMA on 2 April 2009. He also claims that when the parties met
on 25 March 2009 the arbitrator asked him to hold a
pre-arbitration
meeting before the next scheduled date. This tied in with his claim
that he had arranged a pre-arbitration
meeting with Mr Ramokone for
23 April 2009. He further confirmed, with reference to the
necessary supporting document, that
the notice of the arbitration
had been faxed to NUM's regional office, and confirms what appears
on the 7.11 form, namely that
the fax number given by the union
when the dispute was referred was the same.
On
the merits of her unfair dismissal dispute, Gabela said the
following in her founding affidavit in the rescission application:
"
I referred a
constructive dismissal dispute against the respondent after I was
overlooked for promotion when I applied for a senior
position. The
respondent even changed the requirements of the position to suit a
person with much lesser qualifications and experience
than me.
Further, when I applied for the position, the respondent suspended
the appoint to that position. The respondent's supervisor,
Johan
Brits, became very personal and aggressive against me, resulting in
a serious breakdown of the employment relationship
between me and
the respondent. I submit that I followed all internal procedures by
lodging grievances prior to resigning on the
basis of constructive
dismissal.
"
(
sic
)
In
Gabela’s supplementary affidavit in the review application,
she elaborates on her allegations that she was thwarted
by Brits
and another supervisor, Scheepers, in her efforts to obtain
training and promotion. Once again it must be noted that
this was
not before the arbitrator who had to decide if she had demonstrated
some prospects of success.
The
mine made two points directly relevant to the merits of the
applicant’s case in its answering affidavit in the rescission
application. Firstly, it submitted that resignation could not have
been the appropriate path to follow and that it was trite
that
constructive dismissal claims are extremely onerous for an employee
to prove. It also pointed out that the applicant had
resigned
before the dispute, which she had referred to the CCMA as an
alleged unfair labour practice regarding promotion, could
be
resolved. In the light of this, it argued, the applicant had not
given the dispute resolution process an opportunity to
resolve the
matter before deciding to resign.
The
grounds of review
The
applicant complains that the Commissioner acted irregularly and
unreasonably in reaching his conclusions in the rescission
ruling.
Firstly, the applicant submits that just because there was no
confirmatory affidavit from NUM to support the allegation
that it
did not receive the notice of set down, this could not be relied on
by the arbitrator. She argued that this was because
such an
affidavit could not confirm the non-receipt of the notice of set
down. I do not understand this proposition. If an
official at NUM
had attested an affidavit explaining why the fax did not come to
anyone’s attention or that the fax machine
did not reflect a
record of that fax that might well have explained why nobody acted
on it.
The
applicant goes further and says that when the Commissioner realised
there was no confirmatory affidavit from NUM he ought
to have set
the matter down for argument and sought confirmation from NUM
whether or not the notice was received. The applicant
also attacks
the Commissioner's finding that it was undisputed that NUM was
aware of the set down and even arranged a pre-arbitration
meeting
which it failed to attend. The applicant appears to argue that such
a claim supports her version that neither she nor
the union knew
about the set down and date of pre-arbitration meeting. With
respect, the conclusion the applicant seeks to
draw does not follow
from the fact mentioned.
Gabela
also says that the arbitrator ought to have been aware that her
failure to file a replying affidavit was because she
was not
assisted by NUM and therefore would not have known that she needed
to do so. This is also a matter that the applicant
contends should
have prompted the arbitrator to set the matter down for a hearing
so that the allegations could be disputed
by herself or the union,
particularly as he relied on the absence of a replying affidavit in
reaching her findings.
In
her supplementary affidavit, Gabela raises two more grounds of
review. Firstly, she criticises the arbitrator for failing
to
realise that if the notice of set down have been sent directly to
Ramokone’s number she would not have failed to attend
the
hearing. In this regard she says the Commissioner failed to have
regard to the problems of indirectly communicating with
Ramokone
which the latter had raised directly with him. She points out that
the rescission ruling was sent directly to her
fax number and to
the NUM's regional offices fax number.
On
a different theme, the applicant attacks the Commissioner's
conclusion that the prospects of success were "not
convincing".
She criticises the arbitrator’s reasoning
for not providing a more detailed account of how he came to this
conclusion,
particularly in the light of the fact that she believed
she had set out sufficient facts to show that her manager had made
working conditions intolerable for her.
Evaluation
A
central issue in the review application is whether or not the
arbitrator's finding that the union and the applicant were indeed
aware of the set down for arbitration was reasonable given the
evidence of the fax transmission to the union of the notice
of set
down and the undisputed evidence of the employer that a
pre-arbitration meeting had been scheduled on a date
after
the notice of set down was issued. In essence, Gabela submits that
the Commissioner could not simply have relied on this evidence
to
conclude that she and her union did in fact receive the notice of
set-down for 7 May 2009, given the her denial that she
had received
notice of the hearing.
I
accept that there are decisions which have held that a fax
transmission slip is not necessarily sufficient proof of its
receipt. However, it is
prima facie
evidence of service of
the notice, and other evidence is needed to rebut the inference it
gives rise to. A mere denial, without,
for example, any explanation
of investigations made about the receipt of faxes around the time
the fax was supposedly sent,
or without some elaboration of the
applicant’s explanation of why she believes it did not come
to her attention despite
apparently having been transmitted, does
not do much to shift the probabilities in the applicant’s
favour.
The
applicant also submitted that the arbitrator effectively had no
regard to the specific arrangements made by Ramokone to
have the
notice of set-down sent to his fax address rather than to the
regional office. However, in a rescission application
of the
applicant makes no mention of this. This is difficult to understand
if, as she claims, she was expecting to receive
communications
through a different union channel from the one previously used.
Even if she had drafted the rescission application
without
assistance, this explanation would have been uppermost in her mind,
and I find it difficult to accept that she did
not mention in it. I
mention in passing that the style in which the affidavit is drafted
does not seem to support her claim
that she had no assistance. If
Gabela had drawn the arbitrator’s attention to the different
addresses which appeared
on the 7.13 request for arbitration form,
the argument that the arbitrator failed to have regard to a
relevant fact, might
have carried more force. But given that, in
explaining why she did not attend the hearing, she simply denies
receiving the
notice and blames the CCMA for not notifying her by
SMS and further confirms that she is represented by the union which
was
not notified, I do not think the failure of the arbitrator to
notice the change of fax addresses in the 7.13 form is an error
which can be laid at his door. There is nothing in the Gabela’s
affidavit to alert to the arbitrator to the specific
arrangements
allegedly made by Mr Ramokone with him on the previous occasion,
and it was reasonable of the arbitrator to evaluate
her explanation
with reference to what she alleged, not on what she failed to
mention.
I
agree with the respondent that, having regard to the points raised
by the applicant in her founding affidavit, the arbitrator’s
conclusion that the applicants and the union were aware of the set
down for arbitration, was not unreasonable.
In
argument the applicant argued that the arbitrator erred in that he
failed to consider whether the applicant’s default
was
wilful. Firstly, this was not raised as a ground of review in
either the applicant’s founding or supplementary affidavits.
In any event, the facts before the arbitrator were that the notice
had been sent to the same fax number of the union as before
and the
applicant’s representative had failed to attend a
pre-arbitration meeting. It would not have been unreasonable
in the
circumstances to believe that applicant party had lost interest in
the dispute.
On
the question of the prospects of success, it is true that the
arbitrator provides no evidence of his reasoning in arriving
at the
finding that the applicant’s prospects were "unconvincing".
Though it is not necessary for the arbitrator
to set out every
consideration in arriving at a decision, in this instance, the
arbitrator failed to cite any factual claim
on which his conclusion
was based.
However,
even considering the relatively light requirements of demonstrating
a bone fide claim, it must be said that the merits
of the
applicant's case as sketched out in the rescission application do
not support the conclusion that if she was able to
prove what she
alleges that a she would be entitled to succeed on a claim of
constructive dismissal. Whatever the truth of
Gabela’s claims
of being thwarted in her promotion or training aspirations were,
what is set out in the rescission application
is simply
insufficient to justify her resignation as a last resort.
The
other basis on which her claim of constructive dismissal rests is
that her supervisor became ‘personal and aggressive’
towards her resulting in a breakdown in the relationship between
her and the mine. She claimed to have used grievance procedures
to
attempt to resolve this but to no avail. Of course, it is
conceivable that an irresolvable conflict between an employee
and
their manager might prompt an employee to resign after despairing
of any solution to the conflict. However, the mine pointed
out that
Gabela’s resignation took place before the applicant had
exhausted the proceedings in the LRA which might have
resolved her
grievances. I cannot say in the light of this that the arbitrator
unreasonably concluded that the applicant’s
case of
constructive dismissal was unconvincing.
The
biggest difficulty the applicant faces is that she did not refute
any of the allegations made by the mine in its answering
affidavit,
and her own founding affidavit failed to raise issues she now
raises on review. The arbitrator’s reasoning
can only be
evaluated on the basis of the case for rescission that was put
before him, not on what might have been said but
was not. The
drafting of the founding affidavit was clearly done by someone who
ought to have been able to set out her claim
for rescission with
sufficient competence and there was no obvious reason for the
arbitrator to have felt she was not assisted
or that she needed
advice on filing a replying affidavit. Secondly, she did not say
that she had not been able to obtain the
union’s assistance
in drafting it. In any event, if she had filed a reply, much of
what she might have said is material
that should have been in her
founding affidavit and would suffer the usual problems of making
out a case in reply.
In
the circumstances, I am satisfied that there is no reason for
setting aside the arbitrator’s rescission ruling
Order
The
applicants’ review application is dismissed.
No
order is made as to costs
R
LAGRANGE, J
JUDGE
OF THE LABOUR COURT
Date
of hearing: 14 September 2010
Date of judgment: 30
June 2011
Representation
For the Applicants: L
Malan instructed by Finger Phukubje Inc.
For the Respondent: L
Hollander instructed by Webber Wentzel Attorneys