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[2013] ZALCPE 8
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Crown Chicken (Pty) Ltd t/a Sovereign Foods v Commission for Conciliation, Mediation and Arbitration and Others (P337/11) [2013] ZALCPE 8; (2013) 34 ILJ 2872 (LC) (18 April 2013)
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Reportable
case no: P 337/11
In the matter between:
CROWN CHICKEN (PTY) LTD
T/A SOVEREIGN FOODS
Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
First Respondent
FAIZEL FATAAR N.O
Second Respondent
SATAWU ON BEHALF OF
FALTEIN
Third Respondent
Heard
:
21 August 2012
Delivered
:
18 April 2013
Summary: The filing of a rescission application does not oust a
CCMA commissioner’s power to rescind his or her dismissal
ruling on his own accord in terms of section 144 (a) of the LRA.
judgment
LALLIE, J
Introduction
This is an application to review and set aside a ruling issued by
the second respondent (the arbitrator) on 3 June 2011 in which
he
rescinded the dismissal ruling he issued on 29 June 2010.
Background
A summary of the events leading to the filing of this review
application is that the applicant dismissed Mr Faltein (Faltein)
for
misconduct on 19 September 2009. The third respondent challenged the
fairness of his dismissal at the first respondent. On
19 January
2010 the first respondent issued an award in which commissioner Du
Plessis found in favour of Faltein having held
the arbitration in
the absence of the applicant which successfully applied for the
rescission of commissioner Du Plessis’s
award. The rescission
ruling was issued by commissioner Cokile on 19 April 2010. The
matter was rescheduled for arbitration on
29 June 2010 when it was
dismissed by commissioner Fataar for the third respondent’s
failure to attend.
On the 20 January 2011 the applicant received notice from the first
respondent informing it that the matter was schedule for
hearing of
a rescission application on 28 February 2011. The applicant opposed
the application and raised two points
in limine.
The first
was that the third respondent filed the rescission application 41
days outside the 14 day period prescribed in Rule
31 of the Rules of
Conduct of Proceedings before the CCMA (the CCMA Rules) and had
failed to apply for the condonation of the
lateness. The second was
defective service in that the third respondent had served its
rescission application on the applicant
on a fictitious fax number
which the applicant had earlier advised the third respondent that it
was not one of its fax numbers.
The third respondent was aware of
the firm of attorneys which represented the applicant in an earlier
rescission application
. The applicant argued that the points
in
limine
alone constitute good grounds for the dismissal of the
third respondent’s rescission application.
The hearing of the rescission application was schedule for 25 May
2011. In his ruling dated 3 June 2011 the second respondent
did not
deal with the third respondent’s submissions, the points
in
limine
and other submissions made by the applicant in its
opposing papers. He decided to invoke the provisions of section 144
(a) of
the LRA
1
and rescinded his ruling on his own accord on the basis that it was
erroneously made in the absence of the third respondent.
The
applicant’s request for the second respondent to reconsider
his ruling was turned down.
Grounds for review
The applicant submitted that the second respondent committed a gross
irregularity by not considering the points
in limine
it
raised in opposing the rescission application. The applicant
attacked the approach adopted by the second respondent on the
grounds that it rendered his ruling unreasonable and unjustifiable
in relation to the law as the ruling consists of a number
of random
and mutually contradictory observations. A further criticism of the
commissioner’s ruling is based on his failure
to consider and
determine the rescission application based on the evidence before
him.
The Ruling
The commissioner decided to rescind his dismissal ruling on his own
accord in terms of section 144 (a) of the LRA.
Review
The commissioner’s ruling can be reviewed if it is a ruling
which a reasonable decision-maker could not reach. In this
regard
see
Sidumo and Another v Rusternburg Platinum Mines Ltd and
Others.
2
A review application can also be process based and lead to the
reviewing and setting aside of a commissioner’s ruling based
on the conduct of the proceedings at the CCMA. In this regard see
Herholdt v Nedbank Ltd.
3
It is common cause that at the time of making a determination on the
rescission application, the commissioner was in possession
of the
rescission application and its opposing papers. He also had the
knowledge that at the time he dismissed Faltein’s
matter owing
to his failure to attend the arbitration, Faltein was in fact
present at the CCMA. The commissioner elected not
to entertain the
rescission application at all but rescinded his ruling on his own
accord. The factual basis of the commissioner’s
ruling is that
on 26 June 2010 when the matter was scheduled for arbitration, he
called the third respondent’s name along
the hearing room
passage. When he got no response he dismissed the matter. A few
minutes later Faltein entered the hearing room
and informed him that
he had been waiting for his matter to be heard at the case
management area well before the scheduled time.
He further informed
him that no one had told him to wait at the hearing room area. He
realised that he had seen Faltein sitting
at the case management
area but was not aware that he was the applicant in the case before
him as he had never seen him before.
Had the commissioner been aware that Faltein was waiting at the case
management area even before his case was called, he would
not have
dismissed it. However, it is the applicant’s case that when
the third respondent filed the rescission application
which was
opposed by the applicant, the commissioner was obliged to determine
the application and his failure to do so rendered
his ruling
reviewable.
The applicant suggests that when the rescission application was
filed the commissioner forfeited his power to rescind his ruling
on
his own accord. Section 144 does not limit the period within which
commissioners may rescind rulings on their own accord.
Section 138
(1) of the LRA requires a commissioner to conduct an arbitration in
a manner a commissioner considers appropriate
in order to determine
the dispute fairly and quickly but to deal with it with the minimum
legal formalities. Rule 32 (10) of
the CCMA Rules provides that a
commissioner may determine an application, (including a rescission
application) in any manner
he or she deems fit.
The purpose of granting commissioners the power to rescind their
rulings on their own accord is partly to save a party who is
a
victim of a commissioner’s error from suffering the prejudice
of an erroneous ruling and the hardship of having to make
a
rescission application with its concomitant potential prejudice. The
case before the commissioner is a classic example of the
mischief
the legislature sought to address by granting commissioners that
power because in its absence or had the commissioner
refused to
exercise it, the third respondent would be compelled to apply for
the rescission of the dismissal ruling. His rescission
application
could, for whatever reason be dismissed and he would lose his
opportunity of having his case determine on its merits
at the CCMA.
He would be compelled to approach this court at substantial expense
to reclaim his right to be heard.
The legislature has bestowed on CCMA commissioners the power to
rescind their rulings on their own accord. This does not readily
deny commissioners of their statutory powers. When the commissioner
had to determine the rescission application he had the power
to
rescind his ruling based on his knowledge of the presence of Faltein
at the CCMA when his case was called. He also had the
authority to
base his decision on the application before him. He had to choose
the power to exercise and he elected to rescind
his ruling on his
own accord. He can therefore not be faulted for preferring
rescinding his ruling on his own accord over basing
his rescission
ruling on the opposed rescission application before him.
Ideally, the arbitrator should have exercised his power to rescind
his ruling on his own accord soon after realising that he
had acted
erroneously by dismissing the third respondent’s matter.
However, the commissioner’s delay and the filing
of the
rescission application did not oust the commissioner’s power
to rescind his dismissal ruling on his own accord.
I therefore find
the commissioner’s finding reasonable and consistent with
section 144 (a) of the LRA.
I have considered the applicant’s ground for review based on
the commissioner’s error on the date of the dismissal
ruling.
The commissioner stated that the dismissal ruling was issued on 26
June 2010 when it was issued on 29 June 2010. Not
every error made
by a commissioner renders a ruling reviewable. The error did not
affect either the reasonableness of the ruling
or the process
followed by the commissioner in reaching it. It did not make the
ruling susceptible to review.
Cost
The applicant and the third respondent trade union have a continuing
relationship and the applicant did not act unreasonably
by launching
this application. A cost order in the circumstances will not be
appropriate.
In the premises the following order is made:
16.1. The application is dismissed.
16.2 No order is made as to costs.
_______________________
Lallie, J
Judge of the Labour Court of South Africa
Appearances
:
For the Applicant: Adv Grobler
Instructed by: JP Van Der Walt
For the first Respondent: Minnaar Niehaus of Minaar Hiehaus Attorneys
1
Labour
Relation Act 66 of 1995.
2
[2007]
12 BLLR 1097
(CC).
3
[2012]
33 ILJ 1789 (LAC).