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[2014] ZALCJHB 9
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Hair Health and Beauty (Pty) Ltd v De Beer (JR922/2012) [2014] ZALCJHB 9; (2014) 35 ILJ 2196 (LC) (24 January 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
CASE NO: JR922/2012
In
the matter between:
HAIR
HEALTH AND BEAUTY (PTY)
LTD
...................................................
Applicant
and
DOROTHY
DE BEER
...............
B ...................................................
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
..............................................................
....
Second
Respondent
Heard:
12 July 2013
Delivered:
24 January 2014
Summary:
Application for review in terms of s. 145 of the LRA; applicant
seeking to set aside default arbitration award and ruling
refusing an
application to rescind the default award; application materially
defective in that the commissioner was not joined
as a party;
application as against the default award brought outside the
prescribed six (6) weeks and no condonation application
launched;
application for review destitute of merit and dismissed with costs.
JUDGMENT
VOYI
AJ
Introduction
[1]
This is an
application to review and set aside both the default arbitration
award issued by Commissioner Lungile Matshaka (“
the
Commissioner
”
) on 30 January 2012
under case number GAJB22994-11 as well as the rescission ruling
issued by the Commissioner on 22 March 2012
under the same case
number.
[2]
The application is launched in terms of s. 145 of
the Labour Relations Act, No. 66 of 1995 (“
the
LRA
”
). It is opposed by the first
respondent. A peculiar aspect of the matter is the failure, by the
applicant, to join the Commissioner
as a party to the review
application. I deal with this aspect later in the judgment.
Background
[3]
The applicant employed the first respondent (Ms
Dorothy de Beer) on 4 August 2009 as its Sales Consultant. The first
respondent
was remunerated for services rendered by way of basic
salary as well as commission. There were also other benefits such as
car
allowance, etc.
[4]
Being in the sales environment, the first
respondent had sales targets to meet. On 11 August 2011, the first
respondent’s
services were terminated with immediate effect.
The reasons for the immediate termination centred around an
alleged
poor sales performance.
[5]
Following her dismissal, the first respondent lodged a dispute with
the Commission for Conciliation, Mediation and Arbitration
(“the
CCMA”). The dispute was eventually enrolled for arbitration by
the CCMA. The arbitration was enrolled for hearing
on 18 January
2012. A notice of set down in this regard was issued on 18 November
2011.
[6]
On 18 November 2011 at approximately 17:17, the
issued notice of set down was received by the applicant. On receipt
of the notification,
it is said that the applicant’s principal
directors knew they would not be able to attend the arbitration
proceedings as
they had plans to be out of the country on business.
[7]
Earlier and on 17 November 2011, the applicant had
dispatched an electronic mail to Paarl Media (described as ‘…a
very
large and busy printing company…’) advising that
the printing of the applicant’s annual trade catalogue should
begin on 18 January 2012.
[8]
On 7 December 2011, the applicant instructed its
attorneys of record to arrange for a postponement of the arbitration
proceedings
and suggested an alternative date.
[9]
Regarding postponements, the notice of set down
issued by the CCMA
inter alia
stated (on page 2 thereof) that a formal
application for a postponement must be made if the parties cannot
agree on the postponement
or where the request for a postponement is
made within seven (7) calendar days of the scheduled date of the
arbitration. The notice
of set down further recorded that the CCMA
may decide whether to grant the request for a postponement on the
written documents
presented or whether to convene a formal hearing.
[10]
On 10 January 2012, a formal application for a
postponement was filed by the applicant. The application was simply
by way of notice
and was not accompanied by any supporting
affidavit/s.
[11]
On 12 January 2012, the CCMA’s Commissioner
Nokanyo Madyibi issued a ruling stating that the application for
postponement
is
not
granted.
The ruling on the application for a postponement was not challenged
by the applicant. Instead, the applicant launched a
second
application for a postponement when the dispute came up for hearing
on 18 January 2012.
[12]
The further application for a postponement was
refused by the Commissioner on 18 January 2012. It was refused on two
broad bases.
The first was the fact that the CCMA’s
Commissioner Nokanyo Madyibi had already made a ruling refusing the
postponement.
The second ground for refusing the postponement was the
absence of information (such as visa, etc) to confirm or corroborate
what
the applicant’s representative was advancing in support of
the request for a postponement of the matter.
[13]
After the application for a postponement was declined, the
applicant’s legal representative requested to be excused as
he
only had instructions to apply for a postponement of the matter. The
arbitration hearing therefore proceeded in the absence
of the
applicant as the employer party. Following the arbitration
proceedings and on 30 January 2012, the Commissioner handed down
the
default arbitration award under review.
[14]
On receipt of the default award and on 13 February
2012, the applicant launched an application for rescission in terms
of s. 144
of the LRA. The application for rescission asserted that
the Commissioner’s refusal to entertain the application for a
postponement
was “erroneous”. In the final analysis, the
applicant contended that the default award was erroneously sought and
granted.
[15]
On 22 March 2012, the Commissioner issued a ruling
refusing the applicant’s application for rescission. The
Commissioner took
the view that his refusal to entertain the second
application for a postponement was not erroneous.
[16]
The Commissioner found that the facts of the two
applications for postponement remained the same. He, therefore,
concluded that
the arbitration award issued on 30 January 2012 was
not erroneously made in the absence of the applicant.
[17]
On 7 May 2012, the applicant launched the present
review application in which it seeks to set aside both the
arbitration award of
30 January 2012 and the rescission ruling of 22
March 2012. The first respondent opposed the review and her opposing
affidavit
was delivered on 15 June 2012.
[18]
Before delving into the merits of the review, two
aspects of the case warrant attention. They are the late delivery of
the application
for review of the default arbitration award and the
failure to join the Commissioner who handed down the decisions under
review
as a party to the proceedings before this court. I deal with
these in turn.
Late
delivery of the review application re: the default award
[19]
As stated herein before, the default arbitration
award was issued on 30 January 2012. In terms of s. 145(1)(a) of the
LRA, an application
for an order setting aside an arbitration award
has to be launched within six (6) weeks of the date that the award
was served on
the applicant.
[20]
In the present matter, the applicant was served
with the default arbitration award on or shortly after 30 January
2012. As at 8
February 2012, the application was aware of the default
arbitration award. I say so as the applicant was, at that time,
considering
an application to stay the award. All of this emanates
from an electronic mail from one of the directors of the applicant
dated
8 February 2012.
[1]
[21]
The application to review and set aside the
default arbitration award, in particular, was only delivered on 7 May
2012. That was
over three (3) months after the award was issued. The
date when the applicant was served with the default award is not
stated in
the applicant’s papers.
[22]
In her application to certify the default award,
as contemplated by s. 143 of the LRA, the first respondent states
that the award
was served on the applicant on 30 January 2012. As at
8 February 2012, the applicant was contemplating an application to
stay the
default award. One therefore concludes that by 8 February
2012 the applicant had been served with the default award.
[23]
The date by which it can be stated, with
certainty, that the applicant had already been served with the award
is 13 February 2012,
this being the date the applicant launched the
application for rescission mentioned herein before.
[24]
Counting the prescribed six (6) weeks from 13
February 2012, the application to review and set aside the default
award ought to
have been launched by no later than 26 March 2012.
Such review was, however, filed over a month later.
[25]
When the lateness of the review application as
against the default award was raised in court at the hearing of the
matter, Counsel
for the applicant asserted that the application was
inevitably delayed by the rescission application.
[26]
In this connection, the following passage from
Health and Hygiene (Pty) Ltd v Yawa NO
and Others
[2]
is of significant relevance:
‘
That
brings me to the alternative ground upon which this application is
based. It is an endeavour at this stage to review the original
award.
That immediately gives rise to the problem that considerably
more
than the statutory period of six weeks in terms of
section
145(1)(a)
of the
Labour Relations Act had
elapsed prior to
the commencement of these proceedings since the original award was
made. In those circumstances an application
for condonation was
essential
.
No such application was, however, made’.
[own
underling]
[27]
Equally in the present matter, the applicant did
not apply for condonation of the late delivery of the review
application as against
the default award. In terms of
s. 145(1A)
of
the LRA, this court may on good cause shown condone the late filing
of an application for review.
[28]
As it was the case in
Zululand
Anthracite Colliery v CCMA and Another
[3]
, the applicant decided not to bring the requisite
application for condonation and it must accordingly stand or fall by
its decision.
As matters stand and absent an application for
condonation, there is no good cause shown by virtue of which this
court would condone
the late delivery of the review application as
against the default award.
[29]
The fact that there was an application for
rescission which was launched cannot automatically excuse the
application from launching
its review within the prescribed six (6)
weeks. It was, in any event, incumbent on the application to launch
an application for
condonation and therein make reference to the
application for rescission in explaining the cause of the delay in
launching the
review application. That did not occur and the
application for review as against the default award must accordingly
fail.
Non-joinder
of the Commissioner
[30]
The two decisions under review, being the default
award of 30 January 2012 and the recession ruling of 22 March 2012,
were both
handed down by Commissioner Lungile Matshaka.
[31]
Quite peculiar, the Commissioner is not joined as
a party in the review proceedings. The respondents are only the
dismissed employee,
as the first respondent, and the CCMA, as the
second respondent.
[32]
I do not hesitate to come to a considered finding
that the non-joinder of the commissioner is fatal to the applicant’s
application
for review. The decisions the applicant assails were made
by the Commissioner and he ought to have been joined as a respondent
in the review. It is incontrovertible that the Commissioner had a
direct interest in the matter.
[33]
In
MEC for the
Department of Education, Eastern Cape Province v Gqebe
[4]
, the Labour Appeal Court held as follows:
‘
It is
settled law that where a person or entity has a direct and
substantial interest in the outcome of the proceedings such a person
and/or entity should be joined in the proceedings. … In review
applications, it is necessary to cite the arbitrator and/or
CCMA or
the relevant Bargaining Council….’
[5]
[34]
In
Mabombo v Shoprite
Checkers Holdings (Pty) Ltd and Others
[6]
, this court held thus:
‘
The
application for review initially cited the first respondent as the
sole respondent. Though the application seems to have been
served on
the Commission the application was defective as the Commission and
Van der Walt would not be able to oppose same if they
so wished as
they were not cited as respondents. In the normal course they should
have been cited as respondents as it is Van der
Walt’s award
which is sought to be reviewed, therefore he and the Commission had a
direct interest in the matter…
’
[7]
[35]
In my judgment, the possibility that the
Commissioner may not have opposed the review application does not
alleviate the applicant
from its obligation to join the Commissioner
as a party. In
PSA v Department of
Justice and Others
[8]
,
the Labour Appeal Court also stated as follows:
‘
With
regard to the issue of non-joinder it is trite that a third party
should be joined in proceedings if he is shown to have a
direct and
substantial interest in a matter and
has
not consented or undertaken to be bound by any judgment that may be
given in the matter
.’
[9]
[own underlining]
[36]
There is no indication that the Commissioner
consented or undertook to be bound by the judgment that may be given.
It was therefore
necessary that he be joined as a party to the review
application.
[37]
The need to join a commissioner as a party in
review proceedings becomes apparent from the following apposite
passage extracted
in
De Beers
Consolidated Mines Ltd v CCMA and Others
[10]
:
‘
Had
the commissioner known that the court might decide the case on the
basis of such a ground, she may well have decided to either
oppose
the application in the court below or the appeal in this Court or she
might have decided that she needed to place before
the court a
quo some affidavit. Indeed, the CCMA or its director might have
considered that the matter was of much greater
significance than she
might have otherwise thought. In that event she might have decided
that the CCMA should be represented by
counsel in these proceedings
to argue the point of what the statutory powers of commissioners are
when they arbitrate disputes’.
[38]
In this matter, the Commissioner was not afforded
the opportunity to react to the applicant’s application for
review as he
was not cited as a party to the proceedings. In
PSA
v Department of Justice and Others
(
supra
),
it was held thus:
‘
Where
a third party who has a direct and substantial interest in a matter
is not joined in proceedings, it is not a defence to a
point of
non-joinder to say that such party had knowledge of the proceedings
but did not intervene. His mere non-intervention,
despite having
knowledge of the proceedings, does not make the judgment emanating
from those proceedings binding on such party…’
[11]
[39]
In the circumstances, the applicant’s
application for the review of the default award and the rescission
ruling is materially
defective on account of the applicant’s
failure to join the Commissioner as a respondent party. For this
reason, the application
cannot succeed as the defect in contention is
not something this court can simply overlook.
The
merits of the review
[40]
Despite the material findings I have reached on
the two issues stated above, I am prepared to entertain the merits of
the applicant’s
application for review. The application for
review assails two decisions, namely the default award as well as the
rescission ruling.
[41]
With regard to the default award, the applicant is
aggrieved by the Commissioner’s refusal of the further
application for
a postponement of the arbitration proceedings. This
application was made on the date of the arbitration itself, it being
18 January
2012.
[42]
It is common cause that an earlier application for
a postponement of the very same arbitration proceedings had been
refused by Commissioner
Madyibi. The very same formal application
which had been filed with the CCMA on 10 February 2012 was also
tabled before the Commissioner
on 18 January 2012. The grounds upon
which the application for a postponement was based was similar in
both the application launched
on 10 February 2012 and the one made at
the arbitration proceedings on 18 January 2012.
[43]
Had the Commissioner granted the second
application for a postponement, he would have effectively overruled
and set aside Commissioner
Madyibi’s ruling of 12 January 2012.
The Commissioner clearly had no powers or authority to do so. In
Ruijgrok v Foschini (Pty) Ltd
and Another
[12]
,
the following was held:
‘
The
CCMA has no competence to set aside decisions taken by its
commissioners. Such decision could only be reviewed by the Labour
Court in terms of the provisions of s 158(1)(g) of the Act…’
[44]
Equally applicable in the present matter, the
Commissioner had no competence to set aside another commissioner’s
decision.
It was for the applicant to challenge the postponement
ruling issued by Commissioner Madyibi by way of review. The
applicant, however,
did not bring any application for review to
challenge such ruling in particular.
[45]
It is, therefore, my judgment that there is no
merit to the challenge, on review, against the default award handed
down by the Commissioner
on 30 January 2012.
[46]
Turning to the challenge as against the rescission
ruling, I equally hold that the application for review is destitute
of any merit.
Without any hesitation, I point out that the
application for rescission failed to address the reason for the
applicant’s
default at the arbitration proceedings of 18
January 2012.
[47]
In the initial application for a postponement
which was launched on 10 January 2012, it was stated that both the
applicant’s
directors will be in California in the Unites
States of America (“the USA”) on 18 January 2012,
attending a trade fair
and holding meetings with certain of the
applicant’s suppliers.
[48]
However, the applicant’s directors did not
travel to California in the USA as it was envisaged. In the
electronic mail dated
8 February 2012, it is stated that the
applicant’s directors decided not to travel to the USA as
planned. Instead, they were
in the office ‘…painstakingly
checking each of [the 292 page ‘play-outs’] for accuracy
and correctness
and signing them of for printing….’
[49]
The applicant’s principal director, being Mr
Lars Erich Johan Fisher stated in the electronic mail dated 8
February 2012 that
‘[t]here was no was [they] could have
cancelled or postponed this printing process.’.
[50]
The reality of the matter is that the applicant
was in default at the arbitration proceedings of 18 January 2012 as
its principal
directors were busy with a very important printing
process. They were not in California as the attorney that appeared
for the applicant
informed the Commissioner when moving the second
application for a postponement. That attorney is recorded in the
transcript as
having stated the following:
‘
MR
LALOCK
:
So
I am instructed that the – they did – attempts were made
to get hold of the other side, but unfortunately they were
unsuccessful. At this state the directors of the Respondent, which is
– are currently – the directors of the Respondent
are
currently overseas in the USA on business, hence there was no –
they could not – there was no application –
there was not
an affidavit filed of record because there were overseas and they
could not get hold of the – the attorney
could not get hold of
the Respondents because they are overseas, they were only
communicating through e-mail’.
[51]
Based on what is stated in the electronic mail of
8 February 2012, what the attorney representing the applicant told
the Commissioner
was not correct. The applicant’s directors
were not overseas on business. They were at the applicant’s
offices attending
to the printing process which could not be
cancelled or postponed.
[52]
No mention of the trip to the USA having been
cancelled on account of the printing process is made in the
applicant’s application
for rescission. The applicant was
simply not candid in its rescission application. The Commissioner
was, therefore, justified in
refusing to rescind the default award.
[53]
In its application for rescission, the applicant
simply did not give any explanation for its default at the
arbitration hearing
of 18 January 2012. An explanation for the
default is one of the factors for consideration in an application for
rescission. That
much was stated in
Shoprite
Checkers (Pty) Ltd v CCMA and Others
[13]
.
[54]
The applicant, in the application for rescission,
baldly contended that the default award ‘…was
erroneously sought
and granted.” As to exactly in what
respect/s the default award was erroneously sought and granted, the
applicant did not
spell out.
[55]
The applicant simply alleged that the ‘…
refusal
by the Commissioner to entertain an application for a postponement of
the arbitration was erroneous’
.
The following passage from
Health &
Hygiene (Pty) Ltd v Yawa NO and others
(
supra
)
is instructive on this score:
‘
[28]
On that approach the problem confronting the applicant is to identify
the error which gave rise
to the commissioner granting his original
award. There was no error of fact. He was aware, because he had been
apprised of the
fact, that the applicant contended that it had been
unaware until that morning of the fact that the arbitration
proceedings were
due to proceed that day. He was aware of that
because it was he who had conveyed that information to the applicant
at approximately
10 o’clock in the morning. He was aware that
the applicant’s representative was in Johannesburg and
manifestly was
not available to appear at the arbitration that day.
There is no fact which he is said to have overlooked. There is no
matter which,
had he known it, would have caused him to act any
differently. In those circumstances I am unable to see on what basis
it can be
contended that the original award was erroneously sought or
erroneously made.
[29]
Mr Snyman submitted that the error lay in
the decision which the commissioner made in regard to the
question of
postponement. That is not, however, an error of the type contemplated
by
section
144
.
If the arbitrator’s approach was erroneous in that regard, then
it was an erroneous decision in the conduct of the proceedings.
If it
was to be challenged it had to be challenged in terms of the
provisions of
section
145
of
the
Labour Relations Act on
the grounds that the arbitrator either
misconducted himself or perpetrated a gross irregularity in the
conduct of the proceedings.
Neither of those courses was followed’.
[56]
In the present matter, the applicant takes issue
with the Commissioner’s refusal to entertain the second
application for a
postponement. In the rescission application, the
applicant was simply aggrieved by the Commissioner’s refusal of
the application
for a postponement. It can, therefore, not be said
that the default award that ensued was ‘erroneously sought and
granted’
as alleged by the applicant. The Commissioner was,
therefore, justified in concluding as follows:
‘
In the
present case I am not convinced that the [applicant] has given a
reasonable explanation for its default. On the balance of
probabilities I can only come to one conclusion that the Award issued
on 30 January 2012 … was not erroneously made in the
absence
of the party …affected by it.’
[57]
For all of the above reasons, the applicant’s
application for review cannot succeed. It, accordingly, stands to be
dismissed.
Costs
[58]
In the exercise of the discretion conferred by
s.
162
of the LRA, it is my view that costs should follow the results.
From the onset, there were numerous shortcomings on the manner in
which the applicant prosecuted its case.
[59]
To mention but a few: The applicant deliberately
failed to attend the arbitration proceedings as its directors had
other important
matters to attend to. It sought an application for a
postponement at the hearing of 18 January 2012 on false grounds.
After the
default award was issued, the applicant elected to launch
an application for rescission notwithstanding the absence of an
‘error’
contemplated by
s. 144
of the LRA. The applicant
failed to join the Commissioner as a party to the present
application. It equally failed to bring an
application for
condonation of the late delivery of the review application as against
the default award of 30 January 2012. An
order for costs is warranted
under such circumstances.
Order
[60]
I,
accordingly, make the following order:
(i)
The application for review is dismissed.
(ii)
The applicant is ordered to pay the first
respondent’s costs.
___________________
Voyi, AJ
Acting Judge of the Labour Court of South Africa
APPEARANCES:
For the
Applicant:
..........
B .........................
Advocate
O.J. La Grange
.........
B
..................................................
.
Instructed
by Frank Biccari Attorneys
For the First
Respondent:
.........
B ..............
Advocate
JNW Botha
.........
B
..................................................
Instructed
by MD Swanepoel Attorneys
[1]
This
electronic mail forms part of the record at p. 62 and is annexed as
“D12” to the founding affidavit in support
of the review
application.
[2]
[2000]
12 BLLR 1434
(LC) at para 32.
[3]
(2001)
22
ILJ
1213
(LC)
[4]
[2009]
9 BLLR 896 (LC)
[5]
At
para 33.
[6]
[1998]
12 BLLR 1307 (LC)
[7]
At
para 3.
[8]
[2004]
2 BLLR 118 (LAC)
[9]
At
para 25.
[10]
[2000] 9 BLLR 995
(LAC) at para 15:
[11]
At
para 29.
[12]
(1999)
20
ILJ
635
(LC) at para 20.
[13]
[2007]
10 BLLR 917
(LAC) at para 35