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[2013] ZALCJHB 119
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Joy Global (Africa) (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR 1275/12) [2013] ZALCJHB 119 (12 June 2013)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 1275/12
In the matter between:
JOY GLOBAL (AFRICA)
PROPRITARY LIMITED
..........................................
Applicant
and
COMMISSION FOR
CONCILIATION MEDIATION,
AND ARBITRATION
...........................................................................
First
Respondent
NICHOLUS SONO
N.O
.
................................................................
Second
Respondent
HAPPY QIBIE
....................................................................................
Third
Respondent
Heard: 06 June 2013
Delivered: 12 June
2013
JUDGMENT
BENJAMIN, AJ
This is a judgment in an
application to review a default arbitration award handed down by the
second respondent on 28 March 2012
as a well as a rescission ruling
handed down by the second respondent on 14 May 2012.
The case arises out of a
dismissal of Qibie – the third respondent - by the applicant
employer on 9 December 2011. The employee
referred an unfair labour
practice dismissal dispute to the CCMA. The matter was set down for
arbitration on 26 March 2012 at
the Makhado Labour Centre by way of
a fax sent to the employer and employee on 17 February 2012. (It was
not clear from the record
supplied by the CCMA whether or not there
had been a conciliation hearing but nothing turned on this in the
application).
This fax was received by
the employer and the employer’s group human resources manager,
Mr Skhosana. The following day,
Mr Skhosana sent an email to the
case officer at the CCMA advising that in the employer’s view
the CCMA did not have jurisdiction
as the company fell within the
registered scope of the Metal and Engineering Industries Bargaining
Council (MEIBC). The CCMA
did not respond to this email and it does
not appear to have been brought to the attention of Mr Sono, the
second respondent,
who conducted an arbitration by default on 26
March 2012. The second respondent was satisfied that there had been
proper service
on the applicant employer and, having heard the
employee’s evidence found that he had been unfairly dismissed
and ordered
his retrospective reinstatement in employment.
The default award of
reinstatement was issued on 28 March and on 13 April 2012, The
applicant employer brought an application
for the default award to
be rescinded. They did so on the basis that the matter should have
been referred to the Centre for Dispute
Resolution of the Metal and
Engineering Industries Bargaining Council under whose jurisdiction
the applicant states it falls.
The rescission
application was dealt with by the second respondent. The
Commissioner referred to the employer’s email in
which it
recorded its objection to the matter proceeding within the CCMA and
stated that :
‘
The CCMA’s
failure to respond to the email did not exempt the employer to attend
the hearing on 26 March 2012. Further the
employer did not provide
any proof of registration with the MEIBC. The CCMA can assume
jurisdiction to any dispute that falls under
the jurisdiction of any
Bargaining Council if the jurisdictional issue is not or was not
raised at the beginning of the arbitration
.
The arbitrator concluded
that the employer had failed to give a reasonable and justifiable
reason for its default and found that
the employer was in wilful
default of proceedings and that the rescission application “stands
to be declined”.
The first issue that I
need to deal with is the question of the competing jurisdictions of
the CCMA and the MEIBC. The arbitrator’s
assumption that the
CCMA is entitled to exercise jurisdiction in respect of a dispute
under the jurisdiction of a bargaining
council if the jurisdictional
issue is not raised at the beginning of the arbitration is not a
correct reflection of the law.
While it is correct that there are
circumstances in which the CCMA may deal with a dispute otherwise
falling within the jurisdiction
of a Bargaining Council, these
provisions are not consistent with the arbitrator’s view of
his jurisdiction.
The relevant provision
is in section 147(2) (a) of the Labour Relations Act –
‘
147
(2) (a)
If at any stage after a
dispute has been referred to the Commission, it becomes apparent that
the parties to the dispute are parties
to a council, the Commission
may -
(i)
refer the dispute to the council for resolution; or
(ii) appoint a
commissioner or, if one has been appointed, confirm the appointment
of the commissioner, to resolve the dispute in
terms of this Act.’
In the present case, it
is common cause that at the commencement of the arbitration award,
the arbitrator was not aware of the
fact that the employer contended
that the matter fell within the jurisdiction of the MEIBC. However,
he had such knowledge by
the time of the rescission hearing. The
applicant employer made a submission under oath in an affidavit that
it fell within the
jurisdiction of the Bargaining Council. The
arbitrator rejected this submission on the basis that he was
entitled to exercise
jurisdiction irrespective and, that in any
event, the employer had not submitted a certificate of registration.
In terms of section
147(2) (a), once it becomes apparent that the parties to the dispute
are parties to a council, a Commissioner
can only continue to hear
the matter if his or her appointment is confirmed by the Commission.
This requires that someone other
than the presiding Commissioner,
presumably the Senior Regional Commissioner or another official to
whom this responsibility
has been delegated, consider the matter and
decide whether or not to confirm the arbitrator’s appointment.
This procedure
was not followed in the present case.
Once the employer had
made the contention under oath that it was covered by the MEIBC, the
provisions of section 147(2) obliged
the arbitrator either to refer
the dispute to the MEIBC or request the Commission management to
make ruling on whether his appointment
as Arbitrator to hear the
dispute ought to be confirmed. This was not a decision that he could
make himself. The fact that he
assumed that he was entitled to
continue dealing with the matter shows that he was mistaken at his
powers as an arbitrator. For
this reason, the decision in the
rescission hearing falls to be reviewed and set aside.
Once the ruling in the
rescission hearing is set aside, it is necessary for me to decide
whether the default award should stand.
Mr Bank, for the employer
contended that I should set it aside on the basis that the
arbitrator made a reviewable error by assuming
jurisdiction in a
case that fell within the jurisdiction of a bargaining council. In
my view, this is not a ground for reviewing
or rescinding the
default award. This is because section 147(2) contains a procedure
for dealing with issues of precisely this
type. As indicated, where
evidence that the parties are covered by a bargaining council
emerges, either the Commissioner or the
parties must seek a ruling
from the Commission as to whether or not the appointment should be
confirmed. Accordingly, the fact
that the dispute fell within the
jurisdiction of the MEIBC is not an absolute bar to the CCMA hearing
a case.
In this rescission
ruling, the arbitrator examined the reasons for the employer being
absent from the initial arbitration. He
concludes that because the
default was “wilful” the rescission application must be
declined. Even though the employer’s
conduct may involve a
mistaken assumption, this does not automatically translate into a
wilful default. As the Labour Appeal
Court has indicated in
Shoprite
Checkers (Pty) Ltd v the CCMA and Others
1
,
the grounds on which a rescission can be granted must be read as
including “good cause”.
The employer failed to
attend a single hearing as a result of the incorrect view that the
matter would be referred to the MEIBC.
This in not case such as
Silplat
(Pty) Ltd v CCMA and Others
2
in which there was
repeated negligent conduct by the employer’s legal
representatives. The employer’s error is an
“understandable”
error in the sense described by the Labour Appeal Court in
Shoprite
Checkers (Pty) Ltd v the CCMA and Others
3
.
I must now consider whether this constitutes “good cause”
for rescinding the default award.
As Judge van Niekerk
(Acting Judge, as he then was), states in
Martin
v CCMA and Others
4
,
a
Commissioner conducting a rescission hearing must balance the
competing considerations of expedition and justice. The interests
of
justice are served by a party having a full opportunity to ventilate
their case, even where they may have failed to appear
at a previous
hearing. A rescission of the default ruling would have meant that
the arbitration could have commenced before the
bargaining council
within a short period of time. The interests of expedition would not
have been compromised and, if the employee
again succeeded in
gaining reinstatement, the order could have been made retrospective
to the same date as the order granted
at the default hearing.
The employer has put up
a detailed defence in its papers to the merits of the employee’s
claim for unfair dismissal, including
a claim that the employee had
committed sabotage. This meets the requirements of a
bona
fide
defence.
I therefore believe that the interests of justice will be served by
an arbitration on the merits of the claim. Accordingly,
I am of the
view that there is good cause for the award in the default
arbitration hearing conducted on 28 March 2012 to be rescinded.
There is a further
matter that I will deal with: an opposed condonation application for
filing the review (to the extent that
it related to the default
arbitration award) outside of the six week time period. Ultimately,
as I have rescinded rather than
reviewed the default award, nothing
turns on the period in which the review of the default award was
filed. However, I do indicate
that this is an appropriate case for
condonation to be granted as the delay was occasioned by the fact
that the employer first
sought to have the default award rescinded,
which is the appropriate course of action to have undertaken.
While I have set aside
the rescission ruling and the default award, I do not consider that
this is an appropriate matter in which
to make an award of costs
against the employee. The Applicant contributed significantly to the
situation that occasioned this
litigation and it is not unreasonable
for an employee to seek to defend a default award in his favour.
The best resolution for
this matter is for an arbitration on the merits to be conducted
under auspices of the MEIBC as quickly
as possible. It would be
extremely unfortunate if this were to be delayed by further
technicalities. Accordingly, the third respondent
should have a
period of thirty days to refer the matter to the MEIBC for
arbitration. If this is done, the referral must be considered
to
have been made in full compliance with the Act and there will be no
need for the Second Respondent to seek condonation for
the lodging
of the dispute at this stage.
Accordingly, I make the
following order –
The award made by the
Second Respondent in the rescission hearing on 14 May 2013 is
reviewed and set aside;
The award made by the
Second Respondent in the default hearing on hearing on 28 March
2013 is reviewed and set aside;
The Metal and
Engineering Industries Bargaining Council is directed to enrol the
matter for arbitration, once a referral form
is filed with the
Council by Third Respondent.
____________
Benjamin, AJ
Acting Judge of the
Labour Court of South Africa
Appearances:
For the applicant: Adv:
Warren Bank
Instructed by Webber
Wentzel
For the Third respondent:
L.D. Mantsha from Lugisani Mantsha Inc.
1
(2007)
28 ILJ 2246 (LAC) :[2007]
10 BLLR 917
(LAC).
2
(2011)
32 ILJ 1739 (LC).
3
(2007)
28 ILJ 2246;
(2007) 10 BLLR 917
(LAC).
4
(2008)
29 ILJ 2254 (LC).