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[2013] ZALCJHB 27
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Saville Row (Pty) Ltd t/a Webbers Clothing and Footwear v Commission for Conciliation Mediation and Arbitration and Others (JR2742/07) [2013] ZALCJHB 27; (2013) 34 ILJ 2935 (LC) (8 March 2013)
7
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, AT JOHANNESBURG
JUDGMENT
Reportable
Case no: JR2742/07
In the matter between:-
SAVILLE ROW (PTY) LTD
t/a
WEBBERS CLOTHING AND
FOOTWEAR
....................................................
Applicant
and
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
.....................................................
First
Respondent
COMMISIONER JACOBUS
BREYTENBACH
.............................
Second
Respondent
SACCAWU obo GEORGE
MATHYE
...............................................
Third
Respondent
Heard : 14 February
2013
Delivered: 08 March
2013
Summary: Review of the
rescission application filed outside 14 day period no application for
condonation – purported reliance
on dies non during 16 December
to 7 January. Interpretation of CCMA Rule 3(2) compared to Rule 19
(1) of the Uniform Rules. Application
dismissed.
judgment
CHETTY AJ
[1] The applicant in this
matter brought an application for review in terms of section 145 of
the Labour Relations Act 66 of 1995
(‘the LRA’), seeking
to set aside a ruling handed down by the second respondent, in which
the latter dismissed an application
for rescission. The brief
background to the dispute is that the third respondent was employed
by the applicant in January 2000
and eventually was appointed as
manager of its store in Bloemfontein.
[2] On 15 January 2005,
the third respondent was given a notice to attend a disciplinary
enquiry to answer charges of gross insubordination
and gross
negligence. He was found guilty of the charges and dismissed. He then
referred a dispute to the first respondent, the
Commission for
Conciliation, Mediation and Arbitration (‘CCMA’) in
February 2005, and a conciliation proceeding was
set down for 14
March 2005. This conciliation failed to resolve the dispute and the
matter was then referred to arbitration.
[3] According to the
applicant, as a result of the set down notice for the arbitration
having been sent to an incorrect facsimile
address, it was unaware of
the date for the arbitration, which proceeded in its absence on 22
June 2005. The arbitrator found that
the applicant had been duly
notified but failed to appear. An award in favour of the third
respondent was handed down on 17 October
2005. The arbitrator found
the dismissal of the third respondent to be procedurally and
substantively unfair and awarded him compensation
in the amount of
R19 572,00. During all of this time, the applicant remained
unaware as to how the matter was unfolding or
of its status before
the CCMA.
[4] According to the
applicant’s founding affidavit, it only received knowledge of
the award when the document was transmitted
via facsimile to its head
office on 28 December 2005 by the union. The applicant’s
industrial relations officer, Mr De Lange,
deposed to the founding
affidavit in the review application that he was on leave at the time
when the award was received. His affidavit
then sets out the manner
in which he thereafter dealt with the matter.
‘
Seeing as
this period falls within the dies non period stipulated to by law and
seeing as the award was not forwarded to our offices
by the CCMA as
stipulated in the
Labour Relations Act and
further seeing as our
representatives, (SA)UEO was closed up until 5 January 2006 for the
December holidays, I was under the impression
that we had more than
ample time to lodge the application and at worst had 14 days from the
7
th
January in
order to bring the application.’
1
[5] It is not in dispute
that the applicant then filed an application for rescission of the
arbitration award in terms of
section 144
of the LRA. This rescission
application was filed on 19 January 2006. In the supporting
affidavit, DeLange confirmed that the applicant
had only acquired
knowledge of the award on 28 December 2005 and that since the
conciliation-arbitration proceedings in March 2005,
neither the
applicant nor its representatives, SA-UEO, heard anything further
about the matter.
[6] The applicant further
contended that the arbitration award was fatally defective as the
applicant had not been given notice
of the proceedings and
consequently was denied an opportunity to state its case. On this
basis, the applicant asked for the award
to be set aside. The grounds
for rescission appeared entirely plausible as a perusal of the
various notices from the CCMA appeared
to be sent to incorrect
facsimile numbers or to the respondent’s store in Bloemfontein,
which is located in shopping mall,
and I am informed, does not
receive mail.
[7] There is nothing to
gainsay the version of the applicant that the first time it acquired
knowledge of a judgment against it,
was on 28 December 2005. That
however is not the end of the matter. The deponent then proceeds to
state the following:
‘
The
applicant
does
not ask for condonation
for the late filing of this application for rescission due to the
fact that the applicant was only informed of this award by the
representative of the Respondent on the 28
th
December 2005, therefore cannot be held accountable for the lack of
conduct or negligence on its part.’
(
my underlining)
It is this decision of
the applicant not to apply for condonation at the time when it
applied for rescission, that has resulted
in the matter coming before
this Court.
[8] The rescission
ruling, which is the subject matter of this review application, was
handed down on 21 April 2006. In the ruling,
the second respondent
states the following
‘
On 17
October 2005 an award was made in favour of the Applicants of the
original referral by the above said Commissioner [Mvumbi].
The
Applicant now (employer) applied to set aside this ruling. It is
required in terms of Rule 32 of the CCMA Rules that any party
to the
dispute may apply within 14 days of the date on which the applicant
became aware of the arbitration award or ruling to bring
an
application for rescission.
If [an] application is not done within
this period, an application for condonation, in accordance with the
provisions of Rule 9
read with Rule 31 will have to be made
simultaneously with the application for rescission or variation. In
the applicant’s
affidavit the applicant stated that the ruling
came to its attention on 28 December 2005. The applicant decided only
to apply for
rescission on 19 January 2006. This application is
clearly outside the 14-day period. I have not received any
application for condonation
for this late filing.
I therefor decided to dismiss this
application for rescission in the absence of any condonation
application.’
[9] The applicant was not
informed of the outcome of its application for rescission, which one
must assume was sent to the incorrect
facsimile address, as the CCMA
had done before. The applicant states that it only acquired knowledge
that the rescission application
was dismissed when the Sherriff of
the Court attempted to serve a warrant of execution at its
Bloemfontein store on 9 October 2007.
The warrant of execution
included a copy of the arbitration award as well as a copy of the
second respondent’s rescission
ruling. The applicant proceeded
to file a review against the rescission ruling of the second
respondent in this Court on 14 November
2007.
[10] Ms Duvenage who
appeared for the applicant, informed me that despite the applicant
having been represented at by the South
African United and Allied
Employers Organisation (SA-UEO) at the conciliation proceedings and
thereafter, and despite the CCMA
being aware of the address and
contact details of SA-UEO, the first respondent had chosen to
communicate with the applicants by
way of facsimile correspondence to
an incorrect number. The transmission of documents from the CCMA via
facsimile appears to lie
at the heart of the problems that have
plagued the applicant.
[11] The first respondent
dispatched a notice of set down of the arbitration, which was sent to
an incorrect facsimile number, purporting
to be the number of the
applicant’s store at Central Park, Bloemfontein. At the time
when this notice was dispatched, the
applicant was in any event being
represented by SA-UEO, who appeared on its behalf at the conciliation
process on 14 March 2005.
One would assume that the CCMA would
address all further notices in the matter to SA-UEO, but instead
appears to have sent correspondence
to the applicant’s retail
store, where the third respondent had been employed. On these grounds
alone, I am reasonably certain
that the applicant would have been
able to establish good cause for the setting aside of the arbitration
award made in its absence
on 17 October 2005.
[12] The crux of the
issue before me is not whether the applicant could have succeeded on
the merits with regard to the rescission
application, but whether the
second applicant committed a reviewable or gross irregularity in
dismissing the application for rescission,
as it was filed outside
the time periods and without an application for condonation. It is
clear from his ruling that the second
respondent did not have any
regard for the reasons why the applicant was not at the arbitration
proceedings. The applicant contends
that the commissioner committed a
gross irregularity in this regard. That argument, in my view, misses
the point. The sole basis
for his ruling is that the application was
filed outside the 14 day time period set out in Rule 9 of the CCMA
Rules and was not
accompanied by an application for condonation.
[13] The applicant in its
founding affidavit in the review proceedings, attempts to overcome
the reasoning of the Commissioner by
contending that as the
rescission ruling was brought to its attention by the Sheriff of the
Court, there had not been compliance
with section 138(7)(b) of the
LRA which requires that within 14 days of the conclusion of the
arbitration proceedings, once the
award has been issued and signed by
the commissioner, the ‘commission must serve a copy of that
award on each party to the
dispute’. I am not persuaded by this
argument as it pertains in any event to the service of an arbitration
award
and not any other ruling by the first respondent.
[14] It is clear from the
founding affidavit in the review application, that the applicant held
the view that the time periods for
the doing of any act in the CCMA
are suspended during the period 16 December to 7 January, and despite
it having knowledge of the
award on 28 December 2005, the 14 day
period must be calculated from 8 January 2006, unless that day would
have been on a weekend
or public holiday. In other words, the
applicant’s case is that there is
dies non
during 16
December to 7 January.
[15] Rule 3(2) of the
CCMA Rules (”the Rules”) provide that
‘
The last day
of any period must be excluded if it falls on a Saturday, Sunday,
public holiday or on a day during the period between
16 December to 7
January.’
I interpret this rule as
stating no more than if the last day for the filing of any
application or doing of anything in relation
to the CCMA Rules, falls
within the period 16 December to 7 January, then such filing of an
application must take place on 8 January,
unless that date falls on a
Saturday, Sunday or a public holiday. The applicant, in my view
attempted to equate Rule 3(2) with
Rule 19(1) of the Uniform Rules of
Court which states that the days between 16 December and 15 January
both inclusive, shall not
be counted in the time allowed within which
to deliver a notice of intention to defend.
[16] During the course of
argument, I enquired from Ms Duvenage whether the applicant was
persisting with this argument. To the
extent that this leg of its
argument was not abandoned, I conclude that Rule 3(2) does not assist
the applicant in the late filing
of its application for rescission.
Rule 3(2) did not interrupt the running of the 14 day period within
which the applicant had
to lodge its application for rescission. To
the extent that the applicant relied on this provision, I have no
doubt that it acted
on incorrect advice.
[17] In light of that
conclusion, the next enquiry is whether the second respondent had any
jurisdiction to hear the application
for rescission in the absence of
an application for condonation. CCMA Rule 32 is clear that an
application for rescission or variation
must be made within 14 days
of the date when the applicant became aware of the award or ruling.
If an application is lodged outside
that time period, the
commissioner simply has no jurisdiction to consider the application.
To do so would be to act
ultra vires
. It is a well-established
principle that a decision maker cannot confer jurisdiction on himself
or herself.
[18] Ms Duvenage further
submitted that the second respondent adopted too narrow an approach
and was obliged to consider the circumstances
in terms of which the
arbitration award was granted. It was submitted further that the
conduct of the second respondent is at odds
with the test set out in
Sidumo &
Another v Rustenburg Platinum Mines Ltd & others
.
2
I am not persuaded that
the decision of the commissioner is one that a reasonable decision
maker could not reach. His conduct in
approaching the rescission
application was entirely in order. As there was no application for
condonation, he could not consider
the matter and was obliged to
dismiss it.
[19] Furthermore, the
conclusion reached by the second respondent is justifiable in
relation to the reasons given for the decision.
He simply concludes
that the applicant has not brought an application for condonation in
circumstances where its application for
rescission was out of time.
It was not necessary for the commissioner to have considered the
merits of the matter or why the applicant
did not appear at the
arbitration. The employer simply did not have knowledge of the
proceedings. All of these factors would have
been taken into account
in assessing the merits of the application. Against this background,
the applicant in the rescission had
taken a conscious decision not to
apply for condonation. This much is evident from the approach adopted
in the affidavit of DeLange.
Having taken the stance that the 14 day
period was interrupted during 16 December to 7 January 2005, the
applicant cannot now be
seen to argue that the commissioner committed
a gross irregularity in dismissing the application. Without an
application for condonation,
the commissioner was incapable of
dealing with the substantive merits of the application for
rescission.
[20] Ms Duvenage
submitted that the reasoning behind Rule 3(2) was to probably
accommodate the large number of employers and employees
during the
period of annual shutdown of businesses. That explanation is probably
correct, but it merely affords a ground for condonation
as to why the
application could not have been brought sooner. It is no excuse not
to bring an application for condonation where
a delay has arisen over
this period. In
Transport
& General Workers Union & others v Hiemstra NO & another
3
Sutherland AJ took into
account the delay occasioned by failure to prosecute a review
application during this period. He notes that
it
‘
. . . would
be unduly short sighted to fail to acknowledge that it is a norm of
South African society that during the period mid-December
to early
January the nation slouches to a near halt. This customary annual
shutdown may not have excused the appropriate degree
of expedition in
a matter which was truly urgent but it can hardly be said that the
nature of this matter was one in which it was
inexcusable not to
disturb our collective slumber’.
[21] The principle
difference between the matter before me and that before Sutherland
AJ, is that he was dealing with an application
for condonation for
the late filing of a review. The absence of an application for
condonation is what informed the conclusion
of the second respondent
to dismiss the application for rescission. I can find no basis to
conclude that the decision of the second
respondent was one that a
reasonable decision maker could not reach. For those reasons, there
is no basis to conclude that he committed
an irregularity is arriving
at the decision he did.
]23] I accordingly make
the following order:
The application is
dismissed;
No order as to costs.
_______________________
Chetty, AJ
Judge of the Labour Court
Appearances:
For the Applicant: Ms ME
Duvenage.
Instructed by Duvenage
Attorneys, Pretoria
1
Para
4.24 of the Founding Affidavit.
2
(2007)
28 ILJ 2405 (CC).
3
(1998)
19 ILJ 1598 (LC), at 1601J-1602A.