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[2011] ZALCJHB 63
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Urban Africa Security v Hlatshwayo (JR 232/11) [2011] ZALCJHB 63; [2011] 11 BLLR 1131 (LC) (22 July 2011)
MOLETSANE
AJ
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO: JR 232/11
In
the matter between:
URBAN
AFRICA SECURITY CC
…..................................................................
Applicant
and
COMMISSIONER
T . HLATSHWAYO
…..............................................
First
Respondent
COMMISSIONER
S.CHRISTIANSEN
…...........................................
Second
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
….................................................
Third
Respondent
P.
MALULEKE
….................................................................................
Fourth
Respondent
Date
of hearing :19 July 2011
Date
of judgment :22 July 2011
JUDGMENT
MOLETSANE
AJ
Introduction
This
is unopposed application to review and set aside the default
arbitration award under case number GAJB 8020-10, dated 9 April
2010
issued by the first respondent and the rescission ruling under the
same case number dated 4 January 2011 issued by the Second
Respondent.
The
application is brought in terms of
Section 158(1)(g)
of the
Labour
Relations Act 66 of 1995
.
Background
facts
The
Fourth Respondent is an adult male formerly employed by the
applicant as a security officer.
The
fourth respondent`s last date of work was 18 February 2010. He
referred a dispute to the third respondent (“the CCMA”)
alleging that he was dismissed on 23 February 2010.
The
fourth respondent posted the referral dispute form (LRA 7.11) per
registered mail to the Applicant on 9 March 2010. On the
same day
the fourth respondent filed the LRA form with the CCMA.
The
con/arb hearing was scheduled to take place on 9 April 2010 and the
fourth respondent was in attendance.
The
first respondent (Commissioner Hlatshwayo) issued a default award on
9 April 2010 in which he awarded the fourth respondent
six months
compensation.
On
4 May 2010, the CCMA attempted to fax the default award to the
applicant but the transmission was not successful. It appears
that
the wrong fax number was used.
On
7 May 2010, the CCMA posted the default award to the applicant per
registered mail.
On
8 June 2010, the fourth respondent faxed to the applicant the
default award.
On
18 June 2010, the applicant`s attorney filed a escission application
with the CCMA.
On
1 July 2010, the CCMA Case Management Officer (Constance Khumalo)
issued to the applicant a directive. In summary, the directive
was
to the effect that the rescission application was defective as the
application for condonation for the late filing was not
submitted.
The directive was faxed to the applicant`s correct fax number but it
was not addressed to a specific person.
On
4 January 2011, The second respondent (Commissioner Christiansen )
issued a rescission ruling dismissing the rescission application.
In
his rescission ruling at paragragraph 3, Christiansen wrote :
“
The
Commission notified the applicant in a letter dated the 1
st
July 2010 to submit a condonation application for the late filing.
The applicant was informed to submit the above condonation
application within (14) days of the said letter. The applicant has
failed to heed/follow the directive issued by the Commission.”
Applicant`s
submissions
In
its founding affidavit the applicant states :
It
did not receive the default award from the CCMA that was posted per
registered mail on 7 May 2010.
It
only received the default award only on 08 June 2010 when it was
faxed by the fourth respondent.
It
did not receive the letter of directive from the CCMA dated 1 July
2010 directing it to file application for condonation
of the late
filing of the rescission application.
The
rescission ruling was made within 10 days of the matter after the
applicant became aware of the default arbitration award.
Relevant
Rule of the CCMA
Rule
32(1)(a)
reads as follows:
“
An
application for the variation or rescission of an arbitration award
or ruling must be made
within
fourteen
(
my
emphasis) days of the date on which
the
applicant
became
aware
(my emphasis) the arbitration award or ruling.”
Evaluation
The
applicant`s version that it received the default award only on 08
June 2010 is uncontested. Also, the applicant’s contention
that it did not receive the directive from the CCMA to apply for
condonation of rescission application is also uncontested. Mr.
Matthee for the applicant referred me to the case of
Northern
Province Local Government Association v CCMA and Others,
1
where
it was held that commissioners are not entitled to regard a fax
transmission slip as definitive proof that a party received
notice
of the arbitration hearing. Also, Faber AJ in
Halcyon
Hotels (Pty) Ltd t/a Baraza v CCMA and Others,
2
draws
a distinction between “service” and “notification”
and that the commissioner should satisfy himself/herself
that the
defaulting party has received the notice before the proceeding with
the hearing in his or her absence. I fully agree.
When
one scrutinises the letter of directive, it makes no mention that
the applicant must apply for condonation within fourteen
days. It
follows that Commissioner Christiansen`s statement in his ruling
that the applicant was informed to submit the condonation
application within fourteen days from the date of the letter of
directive was something that he imagined in his mind.
Furthermore,
paragraph 3 of the affidavit supporting rescission application
clearly states that the award was received by the
applicant on 8
June 2010. Had Commissioner Christiansen read the affidavit before
making a ruling, he would have been duty bound
to consider whether
in light of paragraph 3, there was any need at all for the applicant
to be directed to apply for condonation.
In
my view, the conduct of the Commissioner above in not properly
considering the information that was in the file is reviewable
in
terms of
section 158(1)(g)
of the LRA.
3
Appropriate
relief
In
the notice of motion, the applicant seeks an order reviewing and
setting aside of both the default award and the rescission
ruling
and/or referring the matter back to the CCMA for arbitration and/or
corrected in terms of
section 145
and
section 158(1)(g)
of the LRA.
In
my view, it is not necessary for this court to consider whether or
not the default award should be set aside. Commissioner
Christiansen
never had an opportunity of dealing with the merits of the case
relating to the condonation application. Furthermore,
the Labour
Courthas sometimes adopted the approach that it does not have power
to rescind the CCMA arbitration awards on the
grounds contemplated
in
section 144
of the LRA and the Labour Court must not usurp the
powers expressly given to the commissioners by the LRA.
4
5
It
follows that the proper relief will be to remit the matter back to
the Commissioner who was supposed to have dealt with the
rescission
ruling for him to properly deal with the matter. When considering
the rescission application, the Commissioner must
bear in mind that
the application for rescission was filed within the requisite time
frame of 14 days as contemplated in
Rule 32
of the CCMA.
In
the event, the following order is made:
The
rescission ruling issued by the second respondent ( Commissioner S.
Christiansen) under case number GAJB 8020-10 is reviewed
and set
aside.
The
matter is remitted back to the second respondent (Commissioner S.
Christiansen) to reconsider the rescission application.
I
make no order as to costs.
______________
Moletsane
AJ
Appearances
For
the Applicant : Attorney Matthee
Instructed
by Riki Anderson Attorneys
1
(2001)
5BLLR 539 ( LC)
2
(2001)
8 BLLR 911
(LC)
3
See
Cash Paymaster Services (Pty) Ltd V Mogwe and Others
(1999) 20
ILJ 610 (LC).
4
See
Els Transport V Du Plessis and Others
(2001) 22 ILJ 1390 (LC)
5
7