About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2013
>>
[2013] ZALCD 19
|
|
HOSPERSA and Another v Soza NO and Others (D477/11) [2013] ZALCD 19 (24 July 2013)
11
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, AT DURBAN
JUDGMENT
Not Reportable
Case no: D477/11
In
the matter between:-
HOSPERSA
.............................................................................................
First
Applicant
E.
JOB
................................................................................................
Second
Applicant
and
CHITANE
SOZA N.O.
..........................................................................
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
.................................................
Second
Respondent
SANPARKS
........................................................................................
Third
Respondent
Heard
:
15 March 2013
Delivered:
24 July 2013
Summary:
Application
for review of arbitration ruling refusing condonation for late
delivery of rescission application.
JUDGMENT
HASLOP AJ
[1] The applicants have
applied to this court for the review and setting aside of a ruling by
the first respondent who refused to
condone their late filing of an
application for the rescission of an arbitration award granted in
favour of the third respondent
in the absence of the applicants. They
have also applied for the first respondent’s refusal to grant
rescission to be reviewed
and set aside.
[2] Although the
application refers to the late filing of the condonation application,
it is probably more correct to refer to the
late delivery of the
condonation application, since the application was timeously filed
with the second respondent, but only served
on the applicants some 22
days after the 14 day time period provided for in the second
respondent’s Rules had lapsed.
[3] The relevant Rule of
the second respondent (Rule 9 (3) of the Rules for the Conduct of
Proceedings before the CCMA) reads as
follows:
“
(3)
An application for condonation must set out the grounds for seeking
condonation and must include details of the following:
(a)
the degree of lateness;
(b)
the reasons for the lateness;
(c)
the referring parties’ prospects of succeeding with the
referral and obtaining the relief sought against the other party;
(d)
any prejudice to the other party; and
(e)
any other relevant factors.”
[4] This Rule repeats the
longstanding requirements for a successful condonation application,
which were set out in
Melane v Santam Insurance Co Ltd
1962
(4) SA 531
(A). In that case, the court explained, at page 532C-F,
that the determination of an application for condonation involved the
exercise
of a discretion, and went on to indicate how that discretion
ought to be exercised:
“
(T)he
basic principle is that the Court has a discretion, to be exercised
judicially upon a consideration of all the facts, and
in essence, it
is a matter of fairness to both sides. Among the facts usually
relevant are the degree of lateness, the explanation
therefor, the
prospects of success, and the importance of the case. Ordinarily
these facts are interrelated; they are not individually
decisive ...
save of course that if there are no prospects of success there would
be no point in granting condonation. ... What
is needed is an
objective
conspectus
of
all the facts. Thus a slight delay and a good explanation may help to
compensate for prospects of success which are not strong.
Or the
importance of the issue and strong prospects of success may tend to
compensate for a long delay. And the respondent’s
interest in
finality must not be overlooked.”
[5] The background to
this matter is that an arbitration to deal with a claim by the second
applicant that he had been unfairly
dismissed by the third respondent
was enrolled by the second respondent, the CCMA, for hearing on 26
January 2011. However, his
trade union, the first applicant, one of
whose officials, one Olivier, was to have represented him at the
arbitration, only found
out about the arbitration date the day
before, telephonically, from an official of the CCMA. Olivier had
faxed the CCMA to establish
the arbitration date, because he needed
to subpoena witnesses, and had been contacted by the CCMA official
with the news that the
matter would be heard the next day.
[6] It transpired that
the CCMA had sent the notice advising the parties of the date of the
arbitration to the applicants, care
of the first applicant, by
registered post on 29 December 2010. Although this method of service
is one of those permitted by its
Rules, Olivier points out in his
affidavit in support of the subsequent application for rescission
that he had advised the CCMA
that the first applicant’s offices
would be closed from 16 December to 3 January, but that the
arbitration notice could be
faxed to it during that period because
somebody would be visiting the office.
[7] In his ruling the
first respondent mentions that the post office had confirmed that the
relevant notification was in the first
applicant’s post box on
29 December. It is not clear where he obtained that information.
Since the CCMA notice was only posted
on 29 December it seems
improbable that it would have reached the first applicant’s
post box on the same day. The registered
postal slip which forms part
of the record before this court does not appear to bear the date of
29 December. Indeed, the only
legible date on it is 11 January, and
it is not clear what that date reflects. It appears to be a “datum
van aflewering”,
a date of delivery, but it is not clear
precisely what that means.
[8] Nevertheless, despite
the fact that the first applicant’s offices reopened, on its
own version, on 3 January, it has never
been suggested by it that the
CCMA notice was not in its post box, or that notification that it had
arrived at the post office
was not in its post box prior to Olivier
having been telephonically advised of the date on 25 January. Nor has
any explanation
been given for the fact that the first applicant had
apparently not checked its post box earlier than 25 January.
[9] Olivier then tried,
according to his affidavits, to contact two of the third respondent’s
officials in an effort to obtain
its consent to a postponement of the
arbitration, but both of their phones transferred him to their voice
mail. He did not leave
messages with those voice mail services. He
does not explain why.
[10] He then telephoned a
senior commissioner at the CCMA (though not the arbitrating
commissioner) and advised her that he had
heard that the roads from
Kimberley, where he was, to Upington, where the arbitration was to
take place, might be closed as a result
of torrential rains, though
he conceded that his information had not been confirmed. He also
advised her that he needed to subpoena
witnesses for the arbitration.
Finally, he advised her that he was required to take his wife to
Bloemfontein for radiation treatment
for cancer. It appears from a
medical certificate that he sent to the CCMA the following day that
the treatment took place on 26
January, the day of the arbitration.
[11] In fact, Olivier
accompanied his wife to Bloemfontein, and to the doctor. He did not
attend the arbitration. This appears to
be the real reason for his
failure to attend the arbitration. One has sympathy for his
situation, even though it appears that,
had the first applicant
emptied its post box timeously, it would probably have discovered the
date of the arbitration earlier than
it did. I should mention that
Olivier was the first applicant’s Provincial Secretary for the
Northern Cape and therefore
a senior official.
[12] What remains
unexplained is why Olivier did not arrange for somebody else from the
first applicant – neither another
official, nor a legal
representative, nor even the second applicant himself – to
attend the arbitration, even if it was only
to explain the position
and apply for a postponement. The second applicant is, after all, the
employee in respect of whose dismissal
the arbitration was scheduled.
It is not even clear from the papers that he knew what had transpired
and that his arbitration was
scheduled for 26 January.
[13] On 26 January the
first respondent dismissed the matter in the absence of the
applicants. It appears that he was, at that stage,
in possession of a
medical certificate which indicated that Olivier had accompanied his
wife for medical treatment, but no other
information.
[14] The first applicant
received the default award on 1 February 2011 and filed an
application for rescission in terms of section
144 of the LRA with
the CCMA six days later, on 7 February.
[15] Rule 32 of the CCMA
requires an application for rescission to be made within 14 days of
the date on which the applicant became
aware of the award, in other
words by 15 February in this case. Rule 31 requires an application to
be brought on notice to all
parties who have an interest in it.
[16] The first
applicant’s explanation, given by Olivier, is that he
misunderstood the requirements of the CCMA rule and did
not realise
that it was not sufficient simply to file a rescission application
with the CCMA, but that a copy had to be served
on the employer party
as well. It seems unusual that the provincial secretary of an
established trade union would not have known
this, but the fact that
the application was in fact not served on the third respondent,
despite the fact that it would have been
well within the prescribed
time limit for doing so, suggests that, for some reason, Olivier did
not know the rule in question.
[17] It appears from the
papers that, realising that proper service had not taken place, the
CCMA wrote to the first applicant on
9 February pointing out this
fact. According to Olivier, the first applicant did not receive that
letter. It seems to have attached
the letter to its eventual
condonation application without explaining how it did come to its
attention. It also fails to indicate
how the need to serve the
rescission application on the employer eventually came to its notice.
[18] Nevertheless, the
first applicant did serve the rescission application on the third
respondent, along with an application for
condonation in respect of
the late delivery. It seems to have been common cause that the
application for rescission was finally
and properly delivered 22 days
late.
[19] The rescission
application deals largely with the question of whether the first
applicant was in wilful default of appearance
at the arbitration
proceedings. However, the affidavit in support of the application
does end with the complaint that “the
Applicant did not receive
the Notice of the Arbitration timeously”. I will return to this
below.
[20] The information set
out in the condonation application is very sketchy. It deals mainly
with the degree of lateness and the
reasons for the delay, which
focussed on Olivier’s misunderstanding of the rules relating to
service. It hardly mentions
the prospects of success, except to claim
that the commissioner’s ruling was made unfairly and in the
applicants’ absence.
Under the issue of prejudice he mentions,
almost in passing, the alleged unfair treatment of the second
applicant by the third
respondent.
[21] As I have pointed
out, the first respondent was required, in considering the
application, to consider the degree of lateness,
the reasons for the
delay, the prospects of success, the prejudice to the parties and any
other relevant factor.
[22] In his ruling the
first respondent accepted that the degree of lateness was “minimal”
but he did not consider the
reasons given for that lateness to be
acceptable, holding that Olivier ought to have known and applied the
CCMA Rules correctly.
He appears to have reasoned that the second
applicant should stand or fall by the negligence of his union
representative, although
he does not specifically say so, possibly
because the union itself was the applicant at that stage, acting on
behalf of its member,
the second applicant. He pointed out that the
paucity of information in the condonation application regarding the
prospects of
success made it difficult to gauge those prospects, and
said that no submissions had been made regarding prejudice.
[23] The prejudice to be
suffered by a former employee whose unfair dismissal application has
been dismissed in his absence is self-evident,
unless he is able to
have that dismissal ruling rescinded. To require that to be
pertinently stated on affidavit seems unnecessarily
formalistic.
[24] As far as the
prospects of success are concerned, the prospects to be considered in
the condonation application were not the
prospects of a successful
arbitration award on the merits of the case, but of a successful
rescission application. Because the
first respondent was in
possession of that application, he was in a position to assess those
prospects despite the fact that the
applicants’ allegations in
that regard had not been repeated in the condonation affidavit.
[25] It appears, though,
as if the first respondent did consider the prospects of success with
reference to the affidavit in support
of the application for
rescission. He ruled that the applicants’ failure to appear at
the arbitration was as a result of
wilful default.
[26] However, he did not
appear to consider the importance of Olivier’s claim, referred
to above, that the first applicant
did not timeously receive the
notice scheduling the arbitration. In fact he does not mention this
at all.
[27] The CCMA was
required, by its own Rules, to give the parties at least 21 days
notice, in writing, of the arbitration hearing.
(Rule 21 of the Rules
for the Conduct of Proceedings before the CCMA)
[28] The last day of any
period was required to be excluded if it fell on a day “during
the period between 16 December to
7 January”. (Rule 3 (2) of
the Rules for the Conduct of Proceedings before the CCMA)
[29] The last day of the
period during which the CCMA might validly give the parties 21 days’
notice of an arbitration hearing
on 26 January did fall between those
dates, and the effect of Rule 3 (2) seems to be that the last day of
the period in question
will then be deemed to be 8 January, unless
that day falls on a Saturday or Sunday. That being the case, valid
notice of the arbitration
hearing, in accordance with its own Rules,
was not given by the CCMA.
[30] Although this
reasoning was not spelt out either in the rescission application or
in the applicants’ argument on review,
the question of
inadequate notice was raised as an issue in the former, and in the
latter I was urged, without my attention being
specifically drawn to
the provisions of Rule 3 (2), to have regard to the time of the year
at which this matter unfolded. I am
therefore satisfied that I am not
only able, but required, to take the issue into account.
[31] Section 144 of the
LRA provides as follows:
“
Any
commissioner who has issued an arbitration award or ruling, or any
other commissioner appointed by the director for that purpose,
may …
on the application of any affected party, … rescind an
arbitration award or ruling –
(a)
erroneously sought or erroneously made in the absence of any party
affected by that award;
(b)
…;
(c)
….”
[32] In addition,
rescission may be granted where the applicant for rescission
demonstrates good cause. In
Shoprite Checkers (Pty) Ltd v
Commission for Conciliation, Mediation & Arbitration & others
(2007) 28 ILJ 2246 (LAC), the court set out the test for good cause
as follows:
“
[35]
The test for good cause in an application for rescission normally
involves the consideration of at least two factors. Firstly,
the
explanation for the default and, secondly, whether the applicant has
a prima facie [case].”
[33] If the rescission
application had only concerned itself with the issue of good cause,
it would have fallen short of establishing
such good cause by virtue
of the fact that it only dealt with Olivier’s justification for
his absence from the arbitration,
and did not deal at all with the
second applicant’s prospects of success on the merits, the
absence of which would usually
be fatal. See, in that regard,
MM
Steel Construction CC v Steel Engineering & Allied Workers Union
of SA & others
(1994) 15 ILJ 1310 (LAC) at 1311I-1312A.
[34] But it seems to me
that the effect of Olivier’s complaint that the CCMA
notification was not timeously received takes
the matter beyond good
cause only and firmly into the precise wording of Section 144. The
award, he appears to be contending, was
in fact erroneously made in
the absence of a party affected by it.
[35] In the
Shoprite
Checkers
judgment referred to above, the Labour Appeal Court held
that there might be circumstances where a party, able to show good
cause,
but unable to bring its case within the precise wording of
Section 144, might unfairly be denied relief if good cause was not
accepted
as a ground for rescission. However, it did not appear to
find that good cause has replaced the precise wording of the section.
At the very least, it seems to me that a commissioner dealing with a
rescission application in which the kind of error envisaged
by the
section is alleged must have regard to that error in coming to his
decision. He must at least consider, for example, the
effect on the
first applicant’s absence of the fact that the CCMA had not
complied with its own rules relating to set down,
and the effect that
may have had on Olivier’s absence, required, as he was, to
accompany his wife for cancer treatment in
Bloemfontein. It was clear
from the default award that the first respondent was in possession of
the medical certificate in that
regard.
[36] So, too, a
commissioner dealing with a condonation application relating to the
prospects of success of such a rescission application
and required by
the CCMA Rules and by
Melane v Santam Insurance Co
to consider
such prospects, would also have to take the applicant’s
allegation that such an error had occurred into consideration.
[37] The existence of a
fact of which the commissioner was unaware at the time of granting
the default award, the knowledge of which
would have precluded the
granting of such award, constitutes an error for the purposes of
section 144. See, for example,
Martin v CCMA & others
[2008] 8 BLLR 774
(LC) at paras [11] and [12].
[38] The failure of the
first respondent to have regard to the allegation that the CCMA
notification had been timeously served means
that, in assessing the
condonation application, he did not properly consider the applicants’
prospects of success in the
rescission application. Indeed, he
states, at paragraph 13 of his award, that “(i)f ever there was
a case in which one can
conclude that good cause has not been shown
for condonation without even considering the prospects of success
then this is one
of those cases”.
[39] Although he does not
say so in his award, he also appears to have considered it to be an
inflexible rule that an applicant
cannot lay the blame for delay at
the door of his representative. As the court pointed out in
Martin
v CCMA
at para [19], it is not. If he did not consider this, then
he did not consider the second’s applicant’s position in
relation to the conduct of his representative at all. It seems to me,
therefore, that he did not properly consider the explanation
for what
he concluded was a “minimal” delay.
[40] As set out in the
passage from
Melane v Santam Insurance Co
set out above, a
commissioner assessing an application for condonation is required to
exercise his discretion by way of a proper
consideration of all the
facts, and a reasonable decision maker would certainly do so.
[41] Because the first
respondent did not do so in this case, his ruling refusing
condonation is not one that a reasonable decision
maker could have
made. In the circumstances, it does not meet the test set out in
Sidumo & another v Rustenburg Platinum Mines Ltd & others
[2007] 12 BLLR 1097
(CC) and therefore falls to be reviewed and set
aside.
[42] I do not believe, by
the way, that it is necessary for me to decide whether, in the light
of the fact that the time limits
for a rescission application are set
out in the CCMA Rules rather than in the Labour Relations Act, the
question is properly one
of jurisdiction, in which case the test to
be applied would be whether the decision was wrong rather than
unreasonable. Because
the first respondent did not, in my view,
exercise his jurisdiction in the manner set out in
Melane v Santam
Insurance Co
, I believe that the conclusion to which he came was
in any event wrong and must be set aside for that reason anyway.
[43] Counsel for the
applicants suggested, during his address, that, since this court is
in possession of all of the necessary facts,
it should allow
condonation, grant rescission, and refer the matter to the second
respondent for the arbitration to be heard on
the merits by a
commissioner other than the first respondent. Indeed, the applicants
have, in their notice of motion, sought the
review of the first
respondent’s “refusal to grant rescission”.
[44] The difficulty,
however, is that the first respondent appears not to have considered
the rescission application at all, except
possibly in relation to the
issue of prospects of success regarding the condonation application,
precisely because he refused to
condone its late delivery, and even
then he did not properly consider all of the facts.
[45] The third respondent
has argued that the first respondent, correctly, did not even
consider the application for rescission
because, having refused
condonation, he had no jurisdiction to do so. Irrespective of whether
or not this is properly a jurisdictional
question, it seems clear
that the first respondent did not consider the application for
rescission.
[46] Although the ruling
itself is on what appears to be a pre-printed document and is headed
“Rescission Ruling”, it
appears from the content of the
ruling that the first respondent appreciated that his was not in fact
a ruling on rescission, but
one on condonation only. He says, in
paragraph 16 of his ruling, “Since the application for
condonation is not condoned,
the rescission application cannot be
entertained.”
[47] Assuming that he
meant “granted” when he used the word “condoned”,
I consider that to be a correct
statement of the position.
[48] Although it may
well, depending upon the outcome of the rescission application, have
the effect of subjecting this matter to
an additional CCMA process,
it is my view that the rescission application must still be heard
under the auspices of the CCMA.
Order
[48] In the circumstances
I make the following order:
1. The ruling of the
first respondent dated 29 April 2011 refusing to condone the late
delivery of the rescission application in
respect of an unfair
dismissal dispute set down for arbitration by the second respondent
under the second respondent’s case
number NC2235/10 is hereby
reviewed and set aside,
2. The applicants’
late delivery of the rescission application is hereby condoned.
3. The matter is referred
to the second respondent for the rescission application to be heard
by a commissioner other than the first
respondent, such commissioner
to permit oral argument by the parties.
4. There is no order as
to costs.
_______________________
Haslop, AJ
Judge of the Labour Court
Appearances:
F
or
the Applicants
:
P
J Blomkamp.
Instructed
by Llewellyn Cain Attorneys, Pietermaritzburg.
F
or
the Third Respondent:
D
Short.
Fairbridges
Attorneys, Johannesburg.