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[2013] ZALCJHB 41
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Fast Freight (Pty) Ltd v National Bargaining Council for the Freight Industry and Others (JR 804/2011) [2013] ZALCJHB 41 (6 March 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
case no: JR 804/2011
In the matter between:
FAST FREIGHT (PTY) LTD
.................................................................................
Applicant
and
THE NATIONAL BARGAINING COUNCIL FOR
THE FREIGHT INDUSTRY
.....................................................................
First
Respondent
COMMISSIONER NM LEDWABA
.....................................................
Second
Respondent
SIBUSISO
GODFREY MAHLANGU
.....................................................
Third
Respondent
Heard: 09 January 2013
Delivered: 06 March 2013
Summary: Employee failing to make substantive condonation
application for late filing of answering affidavit. Rescission
application
– notice sent to correct fax number only creates a
presumption of proper service.
judgment
Naidoo AJ
Introduction
[1] This is an application to review and set aside a rescission
ruling made by the second respondent (the arbitrator) under case
number NELRFBC13745, in terms of which the applicant’s
rescission application was dismissed.
[2] Despite opposing the application, the third respondent was not
represented at the hearing. Once satisfied that proper notice
had
been sent to the third respondent, I continued to hear the
application in the absence of the third respondent.
[3] Ms. Duvenage, appearing for the applicant argued that the third
respondent’s replying affidavit was not filed within
the
prescribed time frame and without an application for condonation,
should not be considered.
[4] The applicant filed its review application on 21 April 2011 and
thereafter filed its notice in terms of Rule 7A (8)(b) on 10
June
2011. The third respondent filed his answering affidavit on 7
September 2011. Thus the third respondent is some 53 days late
in
filing his papers.
[5] In his affidavit the third respondent, with respect to his late
submission, states his insurance company confirmed cover with
his
attorneys ‘late’ and on this ground his late filing
should be condoned. The applicant’s attorneys in its
replying
affidavit, served on 19 September 2011, advised the applicant and his
attorneys that a proper substantive application
for condonation needs
to be made. The applicant’s attorney again, in its Heads of
Argument, raised the issue of condonation.
To date the third
respondent has not made out a case for condonation nor has Heads of
Argument been filed on his behalf despite
being directed to do so by
the Registrar of this Court.
[6] In
NUMSA and Another v Hillside Alluminium
,
1
on this issue of condonation the court held:
‘
Additionally,
there should be an acceptable explanation tendered in respect of each
period of delay. Condonation is not there simply
for the asking.
Applications for condonation are not a mere formality. The onus rests
on the applicant to satisfy the court of
the existence of good cause
and this requires a full, acceptable and ultimately reasonable
explanation. One of the primary purposes
of the Labour Relations Act
is to ensure that disputes are resolved expeditiously, especially
dismissal disputes. The intention
is that disputes alleging unfair
dismissal should be referred to conciliation within 30 days of the
dismissal (section 191(1)(b)(i)
(Act 66 of 1995)); that the
conciliation process be completed within 30 days (section 191(5) (Act
66 of 1995)) and that disputes
for adjudication by the Labour Court
should then be referred within 90 days of the end of the conciliation
process. For a variety
of reasons, these time periods are often not
complied with in practice. Nevertheless, to do justice to the aims of
the legislation,
parties seeking condonation for non-compliance are
obliged to set out full explanations for each and every delay
throughout the
process. An unsatisfactory and unacceptable
explanation for any of the periods of delay will normally exclude the
grant of condonation,
no matter what the prospects of success on the
merits. The latter principle was stated by Myburgh, JP in NUM v
Council for Mineral
Technology
[1999] 3 BLLR 209
(LAC) at 211G-H
‘
There
is a further principle which is applied and that is that without a
reasonable and acceptable explanation for the delay, the
prospects of
success are immaterial, and without prospects of success, no matter
how good the explanation for delay, an application
for condonation
should be refused’
[7] The third respondent has failed to set out a proper explanation
for the late filing of his answering affidavit. He has not
set out
when his insurance company confirmed the necessary cover for his
attorneys to act on his behalf or what efforts he made
with his
insurance company while in pursuit of obtaining such cover.
Furthermore there is no confirmatory affidavit from the third
respondent’s insurance company confirming the reason for late
filing as alleged by the third respondent.
[8] For the above reasons and on the strength of the decision in
NUMSA (supra) I am inclined to accept Ms. Duvenage’s argument.
The third respondent has not tendered a suitable or satisfactory
explanation for the late filing of his papers and as such, his
answering affidavit stands to be dismissed. In any event, as will
appear later in this judgment, the third respondent would have
had
limited prospects of success in his argument with regard to the main
application.
Background facts
[9] Before addressing the review application, it would be pertinent
to set out the factual background to this dispute, as set out
in the
applicant’s founding affidavit.
[10] The third respondent was dismissed from the applicant’s
employ on or around 17 November 2009 and referred a dismissal
dispute
to the first respondent on 8 September 2010. On 7 October the
applicant’s representative attended a conciliation
scheduled by
the first respondent. Despite raising the point that the third
respondent was nearly 11 months late in referring his
dispute, the
conciliator issued a certificate of non resolution.
[11] An arbitration was set down at the Commission for Conciliation
Mediation and Arbitration on 15 November 2010. The applicant’s
representative raised the point that both parties fell under the
jurisdiction of the first respondent and further altered the
arbitrator that partied had already attended conciliation scheduled
by the first respondent. A ruling by the arbitrator held that
the
Commission for Conciliation Mediation and Arbitration did not have
jurisdiction to continue and that the matter should be referred
to
the first respondent.
[12] Sometime in February 2011 the applicant became aware of a
default award involving the applicant and third respondent, handed
down by an arbitrator acting under the auspices of the first
respondent. On 24 February 2011 the applicant filed its rescission
application. The second respondent handed down his ruling on 18 March
2011 dismissing the applicant’s rescission application.
It is
this decision which forms the subject matter of this review
application.
Grounds of Review
[13] Ms. Duvenage set out 2 grounds for review. The first is that the
second respondent misunderstood the applicable law in that
he
accepted, as conclusive proof the applicant did receive the notice
once it was common cause that same was faxed to the applicant’s
satellite offices, this despite the applicant alleging it did not
receive notification.
[14] The second ground for review was that the second respondent was
incorrect in his view that an applicant to a rescission application
needs to establish good cause.Ms Duvenage, correctly in my view,
abandoned the second ground of review.
The rescission ruling
[15] In his ruling the second respondent found that once it was
common cause that notice was sent to the applicant’s satellite
office, proper notice had been effected and that the applicant
intentionally did not attend the arbitration. Critical to this
application, the second respondent says the following in his ruling;
‘
The
only reasonable inference one can draw out of the application is
that, the employer undermined the process of the Bargaining
Council
and prioritised what he attended to as he failed to attempt and or to
even sent a delegate for appearance purposes and
presentation of the
interlocutory application and now he would like to flout and abuse
the system, maybe because they have received
adverse award. It is
therefore the employer’s turn to live with the outcome of its
own misfortune. The employer’s Mr.
Loughton, in his application
was not being honest about the reasons for the employer’s
default......’
Evaluation
[16] The first point to note is that the third respondent did not
oppose the rescission application, leaving the second respondent
to
deal with the matter on an unopposed basis.
[17] It is inconceivable how the second respondent arrives at the
inference that the applicant prioritised another engagement over
that
of the arbitration and in doing so undermined the process, or the
conclusion that Loughton was being dishonest with the reasons
as to
why the applicant did not attend.
[18] One can only surmise that the second respondent’s
reasoning is based on the fact that notice was sent to a fax number
belonging to the applicant. It becomes apparent that once the second
respondent ascertained notice was sent to the correct fax
number, he
further concluded the applicant did in fact receive the notice, chose
not to attend the arbitration and was further
dishonest in alleging
it did not receive notification.
[19] In arriving at these somewhat irrational conclusions, the second
applicant has clearly not understood, or was not aware that
the
premise on which he sought to reply on in justifying his opinions,
that being the notice was sent to the correct faxnumber,
creates
nothing more than a rebuttable presumption regarding service. It is a
presumption which is open for the applicant to rebut.
In this case
the applicant duly did so in its rescission application and there was
nothing before the second respondent not to
accept such a version,
more so if he was alive to the fact that the applicant attended both
the conciliation and the arbitration
set down at the Commission for
Conciliation Mediation and Arbitration. On this point the court in
Gay Transport (Pty) Ltd v SA Transport and Allied Workers Union
and Others
2
held:
‘
As
indicated above the fax slip creates a presumption of receipt but
does not constitute conclusive proof of receipt. The applicant
in the
present matter does not deny the correctness of the fax number used
to fax the statement of case. It however denies ever
receiving the
same, thereby refuting the presumption of receipt. The burden is then
on the respondents to show that the applicant
did indeed receive the
statement of case through the fax transmission. The evidence that the
applicant did receive other documents
through the same fax number
previously is not in my view sufficient to discharge the duty on the
respondents to show that the applicant
did receive the statement of
case sent through the same fax number.’
[20] There was further nothing before the second respondent to
suggest, let alone conclude that the applicant chose not to attend
the arbitration or that Loughton was dishonest in his rescission
affidavit. For these reasons the ruling stands to be set aside.
[21] It is worthy to note that in his answering affidavit the third
respondent opposes the review on the sole ground that the notice
was
sent to the correct fax number. To this end he does not take into
account, like the second respondent, the correct legal principle
on
this point and thus he would have been without any prospects of
success in opposing the review if condonation had been granted.
[22]In light of the above I am satisfied that the applicant has made
out a case which warrants the setting aside of the rescission
ruling.
[23] It is for the applicant to supplement its rescission application
to include the issue of good cause and for the first respondent
to
condone the late filing of these submissions or not.
Order
[24] In the premises the following order is made:
25.1. The rescission ruling made by the second respondent under case
number NELRFBC 13745 is reviewed and set aside
25.2. The matter is remitted to t
h
e first respondent to be
considered afresh by a commissioner other than the third respondent.
25.3 There is no order as to costs.
_______________
Moksha Naidoo
Acting Judge of the Labour Court
APPEARANCES
For the Applicant: Ms Duvenage of Duvenage Attorneys.
For the Respondent:
1
[2005] ZALC 25
;
[2005]
6 BLLR 601
(LC) at para 12
2
(2011)
32 ILJ 1917 (LC
)
.