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[2013] ZALCJHB 56
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Standard Bank of South Africa v Metu and Others (JR496/12) [2013] ZALCJHB 56 (23 April 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR496/12
In the matter between
STANDARD BANK OF SOUTH AFRICA
...................................................
APPLICANT
and
COMMISSIONER BABALO METU N.O
.......................................
FIRST
RESPONDENT
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION
................................................................SECOND
RESPONDENT
ISAAC THABANG MOSETLE
.....................................................
THIRD
RESPONDENT
WALTER KAGISO MNISI
.......................................................
FOURTH
RESPONDENT
THULANI MKHWANAZI
...............................................................
FIFTH
RESPONDENT
REUBEN GOILSEMANG
.............................................................
SIXTH
RESPONDENT
Heard: 15 January 2011
Delivered: 23 April 2013
Summary: Objection to con-arb; application for the postponement of
arbitration proceedings; objection to consolidation of matters
referred to arbitration
____________________________________________________________
JUDGMENT
_____________________________________________________________
GAIBIE, AJ
[1] This is an application to review and set aside an arbitration
award made by the first respondent on behalf of the second
respondent.
The first respondent will be referred to as the
‘commissioner’. In the award, the commissioner gave his
reasons for
refusing a postponement of the proceedings on the day on
which the con-arb had been scheduled.
[2] After dismissing the application for postponement and related
matters, the commissioner proceeded to deal with the merits of
the
dispute. The commissioner found that the third to sixth respondents
were unfairly dismissed, and awarded them reinstatement
backdated to
the date of their dismissal, and specified the amounts that they were
entitled to in relation thereto.
[3] The applicant, Standard Bank of South Africa Ltd, attacks the
arbitration award in relation to the following three issues:
1) the
applicant’s objection to the con-arb process; 2) the
applicant’s application for the postponement of the arbitration
proceedings; and 3) the applicant’s submission that the matter
of the four individual respondents was incorrectly consolidated.
[4] The applicant contends that the commissioner committed a
reviewable irregularity by unreasonably and/or incorrectly failing
to
properly consider the merits of the objection in relation to or the
merits of the issues related to the con-arb notice, the
application
for postponement and the objection to the consolidation of the
matters.
Con-arb notice
[5] I proceed to deal with each of these issues in turn.
It is common cause that the applicant received the notice of set down
of the con-arb in relation to the referral of ‘Masetle
and
Three Others’, with no indication as to who the three others
were, on 20 December 2012.
[6] It is also common cause that this is a matter that involved no
less than six referrals of the dispute to the CCMA, four of
the
referrals were in relation to the individual employees, and the other
two referrals were in respect of “Masetle and One
Other”,
and the final one being for “Masetle and Three Others”.
[7] The applicant sent a letter objecting to the con-arb process to
the CCMA and the employees by registered mail, in a letter
dated 4
January 2012, which was dispatched by registered post on 5 January
2012. The applicant, it appears, also attempted to send
the objection
by telefax unsuccessfully. In terms of the Rules of the CCMA, service
by registered post will be deemed to have been
received on the
seventh day after dispatch. That being the case, the objection would
have been deemed to have been received by
close of business on 12
January 2012, the day on which the con-arb was scheduled.
[8] The commissioner in his award indicated that the applicant was
unable to furnish the CCMA with a copy of the successful telefax
transmission report and that in his view the applicant had not
complied with Rule 7 of the CCMA Rules pertaining to the filing
of
documents. Despite receipt of the notice of the con-arb and proof
that the notice of objection had been served by registered
post, the
commissioner indicated that that was simply not sufficient and that
nothing was before the CCMA for it to deal with it
on that basis.
Application for postponement
[9] The second issue that the commissioner dealt with was the
application for postponement. The applicant applied for the
postponement
of the arbitration proceedings on the basis that being
faced with the dismissal of the objection to the con-arb process, it
had
no option at that stage but to apply for the postponement of the
proceedings.
[10] The applicant was, according to Mr Alastair Kennedy, its
representative, under the impression that the documentation for the
objection to the con-arb was in order. Kennedy also explained that:
‘
He was
standing in for a colleague who was not able to attend to the
conciliation on 12 January;
The applicant had not had a
proper opportunity to prepare all the required documentation because
it was under the impression that
the conciliation was for Masetle’s
matter originally and not for all four employees;
He did not have the mandate to
run with arbitrations on behalf of the bank.’
[11] In response to the application for postponement, the employees
did not address the issues raised by Kennedy, they simply asserted,
in broad terms, that the matter should be proceeded with.
[12] The commissioner was of the view that the applicant had not
provided sufficient grounds that would justify a postponement,
that
there had not been any tender for costs flowing from the set down and
that he was inclined to proceed with the arbitration.
The
commissioner also indicated that the notice of set down reflected
that the matter was in respect of four employees and that
if the
applicant was uncertain as to who the other applicants were, they had
ample time from 20 December 2011 to find out who the
others were.
[13] The commissioner also indicated that Kennedy had informed him
that he was standing in for a colleague but did not give details
as
to why he was not available or what had happened to the colleague.
Despite these remarks, it is apparent from the award, that
the
commissioner eventually dismissed the application for postponement on
the basis that the applicant had not complied with the
Rules for
applying for a postponement of the proceedings.
[14] In other words, that given that the Rules provide that this must
be done prior to the actual hearing, and on application,
the
application for postponement was dismissed. Consequently, the
commissioner lost focus of the circumstances in which the application
for postponement was made. It was clearly made after the objection to
the con-arb was made, it must therefore be seen in its totality.
[15] The commissioner failed, in my view, to weigh up the prejudice
which would be caused to the applicant, and the prejudice that
would
face the individual employees or the third to sixth respondents. The
commissioner did not also consider the fact that the
applicant had
genuinely made an attempt to serve and file the objection to the
con-arb notice and that non-receipt of this was
delayed in terms of
the Rules by less than a day.
Consolidation of matters
[16] The third issue that the commissioner had to deal with was in
relation to the consolidation of the referrals. The applicant,
in
relation to both the postponement and the consolidation issues,
contended that the commissioner acted unreasonably and/or incorrectly
or committed a reviewable irregularity in failing to properly deal
with or consider the merits of the application for the postponement
and the merits of the objection to the consolidation of the matters.
[17] In the arbitration proceedings, the applicant objected to the
consolidation of the various referrals. In the context of applying
for the postponement of the matter, Kennedy said the following:
‘
We
have not had a proper opportunity to prepare all the required
documentation, especially because the matter was for originally
for
Masetle, the additional, we do not have the documentation with us to
proceed with the arbitration
.’
[18] Implicitly, it appears that Kennedy suggested that the applicant
was simply not in a position to deal with all four matters
on that
day. Apart from the above excerpt, the issue of the consolidation of
the various referrals was not properly addressed by
the commissioner.
He indicated in his award, at paragraph 2.3.3, that the employees
informed him that they had been suspended on
the same day for a
similar transgression. That they contended, in addition, that to a
large extent their cases were similar and
that they were of the view
that it was more than likely that the same witnesses would be called
to present the evidence.
[19] It is possible that these issues were raised or discussed before
the recording mechanism was switched on during the arbitration
proceedings, in which case the commissioner was obliged to weigh the
relative contentions in relation to this issue, that raised
by the
applicant and that raised by the individual employees. The
commissioner did not do so, and then with no reference to the
issues
raised by the parties in relation to the consolidation issue,
indicated the following as his reasons for not agreeing to
the
objection relating to the consolidation of the matters:
‘
There
is no prejudice to be suffered by any parties if the disputes are
fused together and heard at the same time. On the contrary,
the
resources shall be efficiently utilised and expeditious finalisation
of the dispute shall be efficiently achieved.’
[20] With respect, that view does not take into account the issues
raised by the applicant, and in fact, does not deal with the
contradictory views held by both the parties in relation to that
matter. It would have been prudent in those circumstances for
the
commissioner to consider the matter properly and comprehensively on
another occasion.
[21] Rule 23 of the Rules of the conduct of proceedings before the
CCMA regulates the postponement of arbitrations set down before
commissioners. In summary, that Rule indicates or envisages
postponements either by agreement or on application. In the first
instance, the parties to a proceeding may agree to postpone a matter
provided there is written agreement. In the second instance,
an
application must be brought in terms of Rule 31 and may be filed at
any time before the scheduled date of the arbitration.
[22] Rule 31 contemplates applications on motion. Finally, there is a
third option, and in terms of Rule 31(10), a commissioner
may despite
the provisions of the Rule, determine an application for postponement
in any manner that the commissioner deems fit.
Once the commissioner
in this matter commenced hearing the application for postponement, he
was seized with the matter and should
have applied the relevant
principles in determining whether and in what circumstances the
postponement should be granted.
[23] For the reasons indicated already, and based on the
well-established and often quoted test to be applied in applications
of this nature, it is my view, that the decision reached by the
commissioner was not a decision that a reasonable decision maker
would have reached. In fact, it is my view that the commissioner in
this matter was far too hasty in proceeding with the merits
of the
matter.
[24] I, accordingly, make the following order:
The arbitration award dated, 23 January 2012, under case number
GAJB32889-11, is reviewed and set aside.
The matter is referred back to the CCMA for a rehearing on the
merits before another commissioner.
There is no order as to costs.
______________________
Gaibie, AJ
Judge of the Labour Court of South Africa
Appearances
For the Applicant: Mr B Masuku of Tabacks Attorneys
For the Respondents: Adv J. Botha
Instructed by
: MD Swanepoel Attorneys