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[2011] ZALCCT 62
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Pioneer Foods t/a Sasko Milling and Baking (Duens Bakery) v Commission for Conciliation Mediation and Arbitration and Others (C 265/10) [2011] ZALCCT 62 (11 March 2011)
Reportable
Of interest to other judges
IN THE LABOUR COURT OF SOUTH
AFRICA
HELD AT CAPE TOWN
Case
no: C 265/10
In the matter between:
PIONEER
FOODS (PTY) LTD
T/A
SASKO MILLING & BAKING (DUENS BAKERY)
.....................
Applicant
and
CCMA
...................................................................................
First
Respondent
Commissioner
JOHN TAFT, N.O.
...................................
Second
respondent
FAWU
..................................................................................
Third
Respondent
TEMBEKILE
MAKULENI
...................................................
Fourth
respondent
JUDGMENT
STEENKAMP J:
Introduction
Does the commissioner in con-arb proceedings in terms of s 191(5A)
of the Labour Relations Act
1
have a discretion whether to adjourn the proceedings after
conciliation and before the arbitration stage, if neither party has
objected to con-arb?
This question arose in the context of review proceedings in terms of
s 145 of the LRA.
background
The applicant, Pioneer Foods (Pty) Ltd, dismissed the employee, Mr
Thembekile Makuleni (the fourth respondent), on 23 November
2009.
The dismissal followed a disciplinary enquiry where it was found
that the employee had had an altercation with a subordinate,
Princess Makalima, on 16 November 2009.
[4] Makalima alleged that, during the altercation, the employee:
4.1. used abusive language towards her;
4.2. slapped her on the cheek with an open hand;
4.3. hit her with a fist on her eye.
[5] The employee was dismissed for misconduct in that it was found
that he had assaulted a subordinate and used abusive language
towards
her.
[6] The employee referred an unfair dismissal dispute to the
Commission for Conciliation, Mediation and Arbitration (the CCMA)
(the first respondent). The CCMA enrolled the dispute for con-arb in
terms of s 191(5A) of the LRA on 5 February 2010.
[7] The employee duly arrived for the con-arb process, represented by
an official of the Food and Allied Workers’ Union (FAWU)
(the
third respondent). There was no appearance for the employer. The
commissioner, John Taft (the second respondent), recorded
the
following:
"The respondent
2
was not represented. Notification was served on the respondent per
fax on 12 January 2010, transmission slip on file, and accordingly
I
was satisfied that proper notice was given and proceeded in absentia.
I spoke with the HR officer who informed me that the respondent
did
receive notification of the con-arb process and would be represented
by their employer’s organisation but they failed
to arrive at
the scheduled time."
The Commissioner issued a certificate that the matter could not be
resolved at conciliation. He then proceeded with the arbitration
in
the absence of the employer. He found that the dismissal was
procedurally and substantively unfair. He ordered the employer
to
reinstate the employee retrospectively with effect from 23 February
2010 and to pay him back pay equivalent to 3 months' remuneration.
the review grounds
The applicant in essence submits that the Commissioner charged with
presiding over a dismissal dispute in con-arb proceedings
has no
discretion to proceed with the arbitration in the absence of an
employer that has not objected to the con-arb process.
Alternatively, the applicant submits that even if the Commissioner
does have the power to arbitrate in the absence of the employer,
the
Commissioner should exercise the discretion to do so in a reasonable
manner and that this did not happen in the present case.
The
applicant submits that the arbitrator did not exercise his
discretion, if any, judicially in the present instance and should
have postponed the dispute.
The third and fourth respondents (FAWU and the employee)
3
oppose the review application on the basis that the Commissioner had
a power conferred on him by the CCMA rules and the provisions
of the
LRA to proceed with the arbitration in the absence of the employer
in a con-arb process where no objection to con-arb
was received by
the Commissioner. They submit that any reasonable Commissioner could
have exercised his discretion to proceed
with the arbitration in the
absence of the employer.
At the outset, I should mention that it is inexplicable why the
applicant did not use the simple procedure prescribed by the
LRA in
dealing with the award made in its absence, i.e. to apply to the
CCMA to rescind the award in terms of section 144.
Nevertheless, the respondents’ attorney has raised no
objection to my deciding the merits of the review application and
I
will proceed to do so. I must reiterate, though, that the
preferable, less costly and more expeditious route for the unhappy
employer would have been to make use of the provisions of section
144.
The employer's non-attendance at the con-arb
proceedings
The deponent to the applicant’s founding affidavit, Mr Schalk
Willem van der Merwe, was tasked with attending the con-arb
scheduled for 5 February 2010. He is the applicant’s Human
Relations Manager.
Van der Merwe states that one Naomi Swartz had sent him an e-mail to
which she attached a copy of the notice of set-down. He
does not
state when she did so, nor does he attach a copy of that e-mail. He
also does not tell the court who Swartz is.
4
What he does say, is that the e-mail did not come to his attention.
He goes on to explain: "When I investigated the matter
at a
later stage, I did find the e-mail in my deleted items. The only
explanation I can give for this oversight is that I must
have
inadvertently deleted the e-mail."
It is common cause that the employer did not object to con-arb in
terms of CCMA rule 17(2).
5
Van der Merwe says that he was not aware of the fact that the matter
had been set down for con-arb on 5 February 2010. That is
why he did
not attend.
[17] On 5 February 2010, Van der Merwe was attending to another
arbitration “in Qwa-Qwa”.
6
While he was on the road, he received a telephone call from Swartz.
She told him the following:
17.1. The Commissioner telephoned her and asked her why the company
was not represented at the con-arb.
17.2. She told him that:
17.2.1. as far as she knew, Van der Merwe was meant to be attending
to the matter;
17.2.2. she would investigate why he was not there; and
17.2.3. she requested that the matter be postponed.
[18] Later that morning – at about 11:40 – Swartz sent a
letter to the Commissioner. She stated: "Due to miscommunication
between Duens Bakery and the company representative, we kindly
request that the matter be postponed at your convenience."
[19] Despite this request, the Commissioner proceeded with the
arbitration in the absence of the employer and made the award as
set
out above.
First ground of review: Exceeding powers
The applicant’s first attack on the Commissioner's conduct is
that the CCMA rules preclude the Commissioner from proceeding
with
the arbitration in the absence of the employer in a con-arb process.
The respondents submitted that the Commissioner had powers conferred
on him by the LRA to proceed with the arbitration in the
absence of
the other party in a con-arb process where neither party objected to
con-arb.
Section 191(5A) of the Act provides as follows:
“
Despite
any other provision in the Act, the council or Commission
must
7
commence
the arbitration immediately after certifying that the dispute remains
unresolved if the dispute concerns –
(a) …
(b) …
(c) any other dispute
contemplated in subsection (5)(a)
8
in respect of which no party has objected to the matter being dealt
with in terms of this subsection."
This section must be read together with CCMA rule 17. That rule is
headed, "
Conduct of con-arb in terms of section 191(5A)”.
Rule 17(2) provides that a party that intends to object to a
dispute being dealt with in terms of section 191(5A), must deliver
a
written notice to the Commission and the other party, at least seven
days prior to the scheduled date for the con-arb.
Subrules (4), (5), (8) and (9) of rule 17 are also important for the
decision in this case. These subrules read as follows:
“
(4) If
a party fails to appear or be represented at a hearing scheduled in
terms of subrule (1), the Commissioner must conduct the
conciliation
on the date specified in the notice issued in subrule (1).
(5) Subrule (4) applies
irrespective of whether a party has lodged a notice of objection in
terms of subrule (2).
...
(8) The provisions of the Act
and these Rules that are applicable to conciliation and arbitration
respectively apply, with the changes
required by the context, to
con-arb proceedings.
(9) If the arbitration does not
commence on the date specified in terms of the notice insubrule (1),
the commission must schedule
the matter for arbitration either in the
presence of the parties or by issuing a notice in terms of rule 21."
9
Interpretation and
application of the statutory provisions
Section 191(5A) is clearly peremptory. It states in plain language
that the commissioner
must
commence the arbitration
immediately after issuing a certificate that the matter remains
unresolved.
The commissioner can only issue such a certificate after an attempt
at conciliation. That is where rule 17(4) comes into play.
Anomalous
as it may seem – as it is surely a futile exercise to make any
attempt at conciliation in the absence of one
of the potential
conciliating parties
10
– the subrule is also clear: If either party fails to arrive
for con-arb, the commissioner
must
conduct (at least) the
conciliation.
Once this step has taken place, the waters become muddied. Must the
commissioner then proceed with arbitration in the absence
of the
defaulting party, or does he or she have the discretion to adjourn
the arbitration part of the proceedings to a later
date? If not, why
does subrule (9) provide that, if the arbitration does
not
commence on the scheduled date, the CCMA must schedule the matter
for arbitration in the presence of the parties or by issuing
a new
notice of set-down?
Mr
Boda
, for the applicant, argued that rule 17 (2) does not
grant the commissioner the right to proceed with an arbitration in
the absence
of one of the parties where there is no objection to the
con-arb process. He also argued that rule 17(4) should be
interpreted
to mean that, where a party fails to appear or be
represented at a con-arb hearing, the matter ought to be conciliated
only.
The primary rule of interpretation is that the meaning of the words
used in the Act and the rules ought to be established having
regard
to their natural, ordinary or primary meaning and also in the light
of their context, including the subject matter of
the rule and its
apparent scope and purpose.
11
Having regard to this guideline, I cannot agree with Mr
Boda
’s
contention. Rule 17 must be interpreted in the light of s191(5A) of
the Act. The purpose of the rule is to guide the
application of that
section. And the section is clear: The Commissioner
must
commence the arbitration immediately after certifying that the
dispute remains unresolved. The absence of a discretion is the
direct opposite of what Mr
Boda
contends for: In fact, it
seems clear to me that the Commissioner has no discretion to adjourn
the proceedings immediately after
having issued a certificate. He
must
commence the arbitration
immediately
after
certifying that the dispute remains unresolved.
It is so that rule 17(4) only specifies that the Commissioner must
conduct the conciliation on the scheduled date in the absence
of a
defaulting party. But, in the light of the clear peremptory language
in s 191(5A), that cannot be read to mean that the
rule maker or the
legislator intended that the Commissioner could proceed with
conciliation only, and did not have the power
to proceed with
arbitration.
Rule 17(9) cannot be reconciled with s191(5A)(c). It must be borne
in mind that subsection (5A)(c) concerns the situation where
no
party has objected
to con-arb. Rule 17(9), on the other hand,
refers back to rule 17(1). That subrule states that the CCMA must
give the parties
at least 14 days’ notice in writing that a
matter has been scheduled for con-arb in terms of s 191(5A). It is
rule 17(2),
and not rule 17(1), that deals with objections. And rule
17(5) makes it clear that rule 17(4) applies irrespective of whether
a party has lodged an objection in terms of subrule (2). In other
words, the commissioner
must
conduct the conciliation on the
scheduled date, regardless of whether a party has objected; but the
rule is silent on arbitration.
Section 191(5A)(c), though, makes it
abundantly clear that the commissioner
must
commence the
arbitration
immediately
after certifying that the dispute
remains unresolved if no party has objected to the matter being
dealt with in terms of that
subsection.
Although neither party’s legal representative referred to it,
I have considered the recent judgment of De Swardt AJ in
Inzuzu
IT Consulting (Pty) Ltd v CCMA.
12
There the learned acting judge expressed the following view:
"The provisions of CCMA
rule 17 make it clear that a commissioner is not empowered to proceed
with the arbitration in circumstances
where one of the parties fails
to appear at con-arb proceedings. When a party is in default of
appearance, the commissioner concerned
may deal with the conciliation
proceedings, but not the arbitration. The arbitration must be
scheduled for a later date. In the
instant case, the commissioner was
either unaware of the provisions of rule 17 (4), or he disregarded or
failed to apply his mind
to such provisions. As a result, he acted
outside the ambit of his powers and and/or authority."
I find myself in respectful disagreement with the learned acting
judge. As I have set out above, rule 17(4) must be read with,
and is
subordinate to, section 191(5A)(c).
The solution may lie in the word "commence". In terms of
section 191(5A)(c), the Commissioner
must commence
the
arbitration immediately after certifying that the dispute remains
unresolved if no party has objected to con-arb. It does
not state
that the arbitration must be completed on that occasion.
[36] The correct interpretation, having regard to the plain language
of section 191(5A)(c) and the apparent scope and purpose of
rule 17
in that context, seems to me to be the following:
36.1. If no party has objected to con-arb, the Commissioner must
conduct the conciliation on the scheduled date, even if a party
fails
to appear or be represented.
36.2. In those circumstances, there can obviously be no conciliation
in the real sense. The Commissioner will then inevitably issue
a
certificate that the dispute remains unresolved.
36.3. The Commissioner must then
commence
the arbitration.
There is no peremptory provision that he or she must conclude it.
36.4. Having commenced the arbitration, the Commissioner retains a
discretion to adjourn it to a later date. This could be for
a variety
of reasons – for example, to enable a witness to attend the
proceedings; or to provide the party who did not attend
or who was
not represented to attend or to obtain representation.
[37] After having commenced the arbitration, the Commissioner may
have to entertain an application for a postponement of the
proceedings
in terms of CCMA rule 23 and rule 31 by the party who was
not present at the conciliation stage.
[38] Rule 17(8) provides that:
"The provisions of the Act
and these rules that are applicable to conciliation and arbitration
respectively apply, with the
changes required by the context, to
con-arb proceedings."
One of those provisions is section 138(1) that provides:
"The commissioner may
conduct the arbitration in a manner that the commissioner considers
appropriate in order to determine
the dispute fairly and quickly, but
must deal with the substantial merits of the dispute with the minimum
of legal formalities.”
In order to deal with the dispute fairly, circumstances may arise
where the commissioner considers it appropriate to adjourn
the
arbitration to a later date in order to allow a party to appear or
to be represented. One can, for example, envisage a situation
where
a party has the
bona fide
intention to attend the con-arb
proceedings but is physically prevented from doing so. For example,
a representative could be
involved in a motor vehicle accident on
the way to the con-arb. If that person phones the Commissioner and
asks him or her to
adjourn the arbitration to a later date, it is
inconceivable that the Commissioner would consider it fair to
proceed in that
party's absence or to insist on a formal application
for postponement in terms of CCMA rules 31 and 23.
In my view, the applicant’s first ground of review must fail.
The Commissioner did not act outside of his powers by proceeding
with the arbitration immediately after certifying that the dispute
remains unresolved.
Second (alternative) ground of review: Failure to
exercise discretion not to proceed with arbitration
The applicant submits in the alternative that, irrespective of the
interpretation to be afforded to rule 17, the Commissioner
failed to
appreciate that he had a discretion in terms of rule 30 not to
proceed with an arbitration in the absence of Pioneer
Foods.
Rule 30 provides that:
“
(1) If
a party to the dispute fails to attend or be represented at any
proceedings before the Commission, and that party –
had referred the dispute to the
Commission, a commissioner may dismiss the matter by issuing a
written ruling; or
had not referred the matter to
the Commission, the commissioner may –
continue with the proceedings
in the absence of that party; or
adjourn the proceedings to a
later date.
(2) A commissioner must be
satisfied that the party had been properly notified of the date, time
and venue of the proceedings, before
making any decision in terms of
subrule (1).”
The applicant argues that the use of the word "may"
indicates that, even if the Commissioner were satisfied that the
applicant had been properly notified in terms of rule 30(2), he
could exercise his discretion not to proceed.
In the context of con-arb proceedings, rule 30 must be read with
rule 17. As I have set out above, my interpretation of that
rule –
read with section 191(5A) (c) of the Act – is that the
commissioner
must commence
the arbitration part of the
proceedings
immediately
after certifying that the dispute is
not resolved; but he retains a discretion to adjourn or postpone the
proceedings after that.
Mr
Boda
submitted that it is clear from the arbitration award
that the Commissioner failed to appreciate that he has a discretion
which
hecould exercise in this regard. He submitted that a failure
to appreciate what powers is afforded to a decision maker, and then
by virtue of that failure to exercise such powers, axiomatically
vitiates the decision ultimately taken.
In this context, it is useful to reiterate what the Commissioner
stated with regard to his decision to proceed without the employer
party:
“
The
respondent [employer] was not represented. Notification was served on
the respondent per fax on 12 January 2010, transmission
slip on file,
and accordingly I was satisfied that proper notice was given and
proceeded in absentia. I spoke with the HR officer
who informed me
that the respondent did receive notification of the con-arb process
and would be represented by their employer’s
organisation but
they failed to arrive at the scheduled time."
It is not clear from this passage that the Commissioner failed to
appreciate that he had a discretion which he could exercise.
At the
least, he took into account that the notice of set down was properly
served by telefax. He then telephoned the HR officer
of the company
13
[Swartz] who confirmed that the company had received the
notification of the con-arb process. However, its representative
14
failed to arrive at the scheduled time.
Despite a paucity of reasoning, it does appear that the Commissioner
applied his mind to the question whether he should continue
with the
proceedings. He did so only after satisfying himself that the
employer party had been properly notified of the date,
time and
venue of the proceedings, as envisaged by rule 30(2).
The applicant further submits that, even if the Commissioner did
appreciate his discretion to adjourn the matter, he did so
unreasonably. This is so, the applicant says, because the employee
was dismissed after he had slapped a female subordinate; the
Commissioner had been informed that the employer had instructed a
representative to attend the proceedings, ie it had the intention
of
opposing the proceedings; and Swartz had requested a postponement,
albeit telephonically.
Although the Commissioner does not mention any request for
postponement by Swartz in his award, the respondents could not
dispute
Swartz’s version in this regard, as set out in Van der
Merwe’s founding affidavit and her confirmatory affidavit.
It is so that the company had an alternative remedy in terms of
section 144(a) of the Act. It could have applied for rescission
of
the award that was made in its absence. Instead, it chose to review
the arbitrator's decision to proceed with the arbitration
after the
conciliation phase.
It seems to me that this election has led to unnecessary costs. I
will return to that aspect later. However, I cannot see any
bar in
law for the applicant to have followed this route.
Considering, then, whether the Commissioner properly exercised his
discretion, it does not appear from the award or the transcript
that
he considered Swartz’s request for a postponement. This
failure was unreasonable in the circumstances.
From the evidence of Van der Merwe and Swartz – that could not
be disputed – it appears that Swartz made it clear
to the
Commissioner that the employer seriously intended to oppose the
proceedings; that the only reason for its non-appearance
was a
miscommunication between her and Van der Merwe; and that they were
not in wilful default.
In those circumstances, the Commissioner's decision not to grant a
postponement could not be said to have led to a fair and expeditious
resolution of the dispute, or one that would determine the dispute
“fairly” and “with a minimum of legal formalities”
as envisaged by s 138(1).
This alternative ground of review succeeds. I agree that the
decision of the arbitrator should be reviewed and set aside on this
ground; and that the dispute should be referred back to the CCMA to
appoint another arbitrator to conduct an arbitration
de novo
in the presence of both parties.
Costs
The applicant has been partly successful. However, it eschewed the
cheap, expeditious and preferred route prescribed by section
144 of
the LRA, i.e. to apply for rescission at the CCMA, in favour of the
costly process of a review in the Labour Court, necessitating
the
use of attorneys and counsel. Taking into account the principles of
law and fairness, the respondents should not be ordered
to carry the
applicant’s costs.
Order
[59] I order as follows:
59.1. The award of the second respondent issued on 15 February 2010
under CCMA case reference WECT 18312 – 09 is reviewed
and set
aside.
59.2. The unfair dismissal dispute between the applicant and the
fourth respondent is referred back to the first respondent for
a
rehearing before a commissioner other than the second respondent.
59.3. There is no order as to costs.
______________________________________
STEENKAMP J
Date of hearing:
24 February 2011
Date of judgment:
11 March 2011
For the applicants:
Adv F.A. Boda
Instructed by Deneys Reitz
For the respondent:
Mr J Whyte
Cheadle Thompson & Haysom
1
Act
66 of 1995 (the LRA)
2
i.e.
the employer
3
The
third and fourth respondents oppose the application for review. The
first and second respondents (the CCMA and the commissioner)
abide
the decision of the court. I shall, therefore, merely refer to “the
respondents” when referring to the third
and fourth
respondents.
4
In
her confirmatory affidavit she states that she is employed by the
applicant “in Human Resources”.
5
That
rule provides as follows: "A party that intends to object to a
dispute being dealt with in terms of section 191 (5A),
must deliver
a written notice to the commission and the other party, at seven
days prior to the scheduled date in terms of subrule
(1).”
6
Of
course, this former Bantustan has been reintegrated into South
Africa and has been a part of the Free State since 1994, but
I
presume the deponent to refer to that area of the Free State, rather
than a nominally independent homeland.
7
My
underlining
8
i.e.
a dismissal for alleged misconduct or incapacity
9
This
rule specifies: “The Commissioner must give the parties 21
days notice, in writing, of an arbitration hearing, unless
the
parties agree to a shorter period."
10
As
Du Toit
et al
state
in
Labour Relations Law
(5
th
ed p 110 para 3.5), citing Blain
et
al
‘
Mediation, conciliation and
arbitration: An international comparison of Australia, Great Britain
and the United States’
(1987) 126
International
Labour Review
179:
“’Conciliation’
means to ‘reconcile or bring together, especially opposing
sides in an industrial dispute’.”
It is hardly possible
to do so in the absence of one of the disputing parties.
11
Equity
Aviation Services (Pty) Ltd v CCDMA & ors
(2008)
29
ILJ
2507
(CC);
Republican Press (Pty) Ltd v
CEPPWAWU & ors
(2007) 28
ILJ
2503 (CC);
Jaga v
Donges NO & anor; Bhana v Donges NO & anor
1950
(4) SA 653 (A) 662.
12
[2010]
12 BLLR 1288
(LC) at 1293J
13
This
appears to be Swartz. She states in her confirmatory affidavit that
she “employed by the applicant in Human Resources”.
14
Neither
party offered an explanation for the reference to an employer’s
organization. On the evidence before me, I must
take this to mean a
reference to Van der Merwe as the company’s representative.