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[2014] ZALCJHB 109
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JDG Trading (Pty) t/a Joshua Doore v Modipa NO and Others (JR123/2011) [2014] ZALCJHB 109 (6 March 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT SOUTH
AFRICA, JOHANNESBURG
JUDGMENT
Reportable
CASE NO: JR123/2011
In
the matter between:
JDG
TRADING (PTY) t/a JOSHUA DOORE
and
MODIPA,
S
N.O.
(cited in his capacity as Commissioner
of the Commission for Conciliation, Mediation and Arbitration)
COMMISSION
FOR CONCILIATION MEDIATION AND ARBITRATION
FOURIE
LESLIE
Applicant
First Respondent
Second
Respondent
Third
Respondent
Heard:
16 January 2014
Delivered:
6 March 2014
Summary:
Review- rescission ruling before the CCMA. Interpretation of section
s144 considered.
JUDGMENT
PHALA
A J
Introduction
[1]
This is an application to review and set aside the ruling of the
First Respondent in terms of which he refused to rescind the
award
issued by the Second Respondent under case number NWKD2180-10 dated
the 30 December 2010.
Background
facts
[2]
The Applicant employed the Third Respondent Leslie Fourie since 2002
as a Branch Manager at a Zeerust store and his services
were
terminated on the 18 March 2010 for misconduct.
[3]
The Third Respondent was at all material times to this matter a paid
up member of the trade union SACCAWU.
[4]
The Third Respondent was absent from work for the period from 2 March
2010 to 07 March.
[5]
As a result the Third Respondent was notified on the 10 March 2010 to
attend a disciplinary hearing to be held on 17 March 2010
on three
charges of breach of company policy and dishonesty.
[6]
The disciplinary hearing was conducted on the 18 March 2010 and the
Third Respondent was dismissed on the same day pursuant
to such
disciplinary hearing.
[7]
After his dismissal the Third Respondent did not agree with the
fairness of his dismissal and as a result referred a dispute
concerning an alleged unfair dismissal dispute to the Second
Respondent.
[8]
The arbitration hearing took place on the 16 November 2010 and the
Third Respondent was present and represented by an attorney
but the
Applicant or representative failed to appear.
[9]
The matter was heard in the absence of the Applicant and a default
arbitration award was handed down in favour of the Third
Respondent
by the First Respondent where the dismissal of the Third Respondent
was found to be substantively unfair.
[10]
The First Respondent re-instated the Third Respondent and ordered the
payment of accrued remuneration in the amount of R64
000 which is
equivalent to the Third Respondent salary for a period of eight
months.
[11]
The Applicant thereafter applied for rescission of the default
arbitration award and the said application was served and filed
on
the 30 November 2010.
[12]
The Third Respondent opposed the application and on the 30 December
2010 the First Respondent handed down a ruling in terms
of which he
refused to grant rescission.
[13]
In declining the rescission application the First Respondent stated
‘It should be noted that the Commissioner proceeded
with the
case on the 16 November 2010 as he found that the Respondent was duly
notified by a fax dated 20 October 2010 at 12h06.
This is the same
fax number that the CCMA used to send the Award which is currently
challenged ‘
[14]
In line with the cited case Law of
Northern
Province Local Government Association v CCMA and Others
[1]
.
I as a Commissioner noted that the CCMA further contacted the
respondent telephonically on 22 October 2010 at 018 642-1062 where
Mr. Arens confirmed that they were aware of the sitting and that they
intend attending. I believe this was in compliance with Case
Law that
it seems to me that a Commissioner in considering whether or not a
notification of an arbitration hearing has indeed been
received by a
respondent, it is necessary to consider the facts bearing on that
question.
[15]
I have also taken into consideration the Respondent’s
submission that he was informed by his Attorney Mr. Obakeng
Lawrence
Thobegane, that the Applicant was aware that this matter was set down
for hearing on 16 November 2010. ‘According
to Mr. Thobegane,
on the 09 November 2010, he personally went to Joshua Doore Zeerust
to serve the Applicant with a copy of the
bundle of documents that
were used during Arbitration. The said index of bundle was received
and signed for by Mr. Erens Laaka,
the new Branch Manager. In support
of this allegation, he attached a copy of the index of the bundle
marked annexure “LF1’
bearing Mr. Erens Laaka’s
signature as well as the stamp of JDG TRADING (Joshua Doore)’
[16]
I have therefore, come to the conclusion that the Applicant has not
succeeded in making a case for rescission.
Principles
for Rescission
[17]
Rescission of CCMA awards are governed by s144 of the LRA. That
section reads as follows:
‘
144. Variation
and rescission of arbitration awards and rulings
.---
Any commissioner who has
issued an arbitration award or ruling, or any other commissioner
appointed by the director for that purpose,
may on that
commissioner’s own accord or, on the application of any
affected party, vary or rescind an arbitration award
ruling----
(a)
erroneously sought or erroneously made in the absence of any party
affected by that award;
(b)
in which there is an ambiguity, or an obvious error or omission, but
only to the extent
of that ambiguity, error or omission; or
(c)
granted as a result of a mistake common to the parties to the
proceedings.
[18]
The procedure for instituting a rescission application is set out in
rule 32 of the Rules of the CCMA which reads as follows:
‘
32 How to
apply to vary or rescind arbitration awards or rulings
.
(1)
An application for the variation or rescission of an arbitration
award or ruling must
be made within 14 days of the date on which the
applicant became aware of:
(a)
the arbitration award or ruling; or
(b)
a mistake common to the parties to the proceedings.‘
[19]
In
Shoprite
Checkers (Pty) v CCMA and Others
[2]
,
the
court held that good cause should be read into s144 of the LRA. The
decision in that case confirmed what had already been decided
in
Northern
Training Trust v Maake and Others
[3]
,
where
the test for rescission in terms of s144(a) of the LRA was said to be
the following:
“
The enquiry in an
application for rescission on an arbitration award is consequently
bipartite. The first leg is one which is concerned
with whether or
not the notice of set down was sent, …,a probability is then
created that the notice sent was received.
The second leg to the
enquiry is one which concerns itself with reasons proffered by the
applicant who failed to attend the arbitration
proceedings. Such
applicant needs to prove that he or she was not in willful in
defaulting, that he or she has reasonable prospects
of being
successful with his or her case, should the award be set aside.
However, the applicant need not deal with the merits of
the case”.
[20]
In exercising the power to either grant or refuse the rescission
application, the commissioner has to make sure that in doing
so he or
she applies his or her mind to the factors relevant to such
determination. Failure to consider or apply one’s mind
to any
of the relevant factors by the commissioner in his or her
consideration of the rescission application could make such a
decision unreasonable or defective as envisaged in s145 of the LRA.
[21]
In
Martin
v Commission for Conciliation Mediation and Arbitration and
Others
[4]
Van Niekerk A J (as he then) was stated:
‘
A reasonable
decision maker in the present circumstances would apply the relevant
test—in other words, the test referred to
in North Training
Trust and affirmed by the Labour Appeal Court in Shoprite Checkers.
This required her to establish that the notice
of set down was sent
(which she did) and then to determine whether the applicant’s
default was wilful, and whether she had
reasonable prospects of
success in her claim. A commissioner’s decision cannot be said
to be reasonable when the commissioner
fails to consider all the
materially relevant factors prior to making that decision’. .
Evaluation
[22]
I have noted that the case number of the ruling the Applicant seeks
to review and set aside is KNPM2191 but on the ruling and
the
arbitration award (which is not the subject of the review but was
attached to the paginated bundle of documents) is NWKD2180-10.
The
Third Respondent did not make it an issue in the opposing papers and
the parties are the same. I therefore, conclude that the
Applicant
party made a bona-fide mistake and this should not affect the
substance of the application.
[23]
In arriving at a conclusion that the arbitration award he handed down
should not be rescinded, the Second Respondent appear
to have been
influenced by primarily two things, that the Respondent was duly
notified by a fax dated 20 October 2010. Secondly
that the Third
Respondent’s Attorney Mr. Obakeng Thobegane informed him that
the Applicant was aware that the matter
was set down for
hearing on the 16 November 2010 because he personally served the
index of the bundle which was received and signed
for by Mr. Erens
Laaka, the new branch manager.
[24]
In
Local
Government Association v CCMA and Others
[5]
Sutherland
AJ had this to say:
‘
It seems to me
that the commissioner in considering whether or not a notification of
an arbitration hearing has indeed been received
by a respondent, it
is necessary to consider all the facts bearing on that question.
Axiomatically, in deciding whether or not
a fax transmission was
received, proof that the fax was indeed sent creates a probability in
favour of receipt, but does not logically
constitute conclusive
evidence of such receipt...’
[25]
In its founding papers’ the Applicant states that the only
reason for non-attendance at the hearing was because it was
not aware
that the arbitration would take place on the 18 November 2010.
[26]
The Third Respondent averred that his legal representative served the
index to the bundle and also had a discussion with the
new store
manager a Mr. Erens Laaka about the date of the arbitration. The
Applicant submitted that the mere handing over of the
bundle did not
constitute service of the notice of set down. Moreover, Laaka was a
new employee and may not have been aware of
the facts of the case.
[27]
It is notable that neither the Applicant nor the Third Respondent
sought a confirmatory affidavit from Erens Laaka about his
involvement in the matter. However, the Applicant had a greater
burden to disprove the allegations of the Third Respondent on this
aspect. The probabilities favour the Third Respondent that the
Applicant was aware of the set down through Erens Laaka.
[28]
The First Respondent did not deal with the prospects of success in
the ruling. The approach to be adopted in dealing with the
prospects
of success is well established. In
Foschini
Group (Pty) Ltd v CCMA and Others
[6]
Francis J said:
‘
An applicant who
wants to have a decision of a commissioner who has refused to rescind
an award reviewed must show that he has a
bona fide case to place
before the tribunal and that it had not lost interest in having its
case heard and its absence at the hearing
has been reasonably
explained.
If the explanation given
for a party’s non appearance at the arbitration proceedings
does not demonstrate that the absent
party was wholly blameless, the
force of that explanation must still be balanced against the force of
the case which that party
seeks to present in support of its case.
The weight of a solid bona fide case will usually make up for a thin
explanation for default’.
The Honourable judge
further stated;
‘…
to
establish that there is a reasonable probability of success on the
merits, it suffices if an applicant shows a prima facie case
in the
sense of setting out averments which, if established at the
proceedings, would entitle that party to the relief asked for.
An
applicant need not necessarily deal fully with the merits of the
case’.
[29]
In
Chetty
v Law Society, Transvaal
[7]
the
court in dealing with prospects of success has this to say:
(ii)
that on the merits such party has a
bona fide
defence which
prima facie
, carries some prospects of success.
[30] In considering the
prospects of success the commissioner does not have to
pronounce
on the merits of the case. All, what the Commissioner has to do is to
investigate whether on the averments made by the
applicant there is a
prima facie
case, that there is a chance of succeeding when
the main case is heard.
[31]
The First Respondent did not deal with the prospect of success in the
ruling he issued. As a result he failed to apply the
correct
principles on how to deal with prospects of success in an application
for rescission. Consequently the First Respondent
committed a gross
irregularity because he failed to analyze, fully and properly the
likelihood of the Applicant succeeding in its
defence at the unfair
dismissal hearing.
[32]
On this ground the ruling handed down by the First Respondent stands
to be set aside.
[33]
The Applicant in the Notice of Motion prayed that the rescission be
granted and that the matter be referred back to the CCMA
for
arbitration on the merits thereof on an opposed basis. In this regard
I am guided by what Molahlehi J in
SADTU
v CCMA and Others
ZALC
7 2007
[8]
said:
‘
In the time
available I have not been able to find an appeal decision that
interprets s144 or any section of the LRA that gives
a court a
concurrent jurisdiction with that of the CCMA in as far as rescission
of awards is concerned. The provisions of s144
are in my view
perfectly clear on this point. The power to rescind arbitration
awards is conferred on the commissioner and not
this court. See
Deutch v Pinto & Another (1997) 18 ILJ 1008 (LC)and- Mimmo’s
Franchisee Cc & others v Spiro &
Others (2000) 21 ILJ 2065
(LC).
Conclusion
[34]
In the premises, I make the following order:
(a)
The ruling issued under case number NWKD2180-10 on the 30 December
2010 is reviewed and
set aside.
(b)
The application for rescission is remitted to the Second Respondent
to be heard by a Commissioner
other than the Second Respondent.
(c)
There is no order as to costs.
___________________
Phala
A J
Acting
Judge of the Labour Court of South Africa.
APPEARANCES
APPLICANT:
S
Morgan (Attorney)
FIRST
RESPONDENT: O L
Thobegane (Attorney)
[1]
[2001] 5 BLLR 539 (LC).
[2]
(2007) 28 ILJ 2246 (LAC
[3]
(2006) 27 ILJ 828 (LC) at para 28.
[4]
(2008) 29 ILJ 2254 (LC) at para 25.
[5]
(2001) 22 ILJ 1173 (LC) at para 46.
[6]
(2002) 23 ILJ 1048 (LC) at paras 16-17 and 21.
[7]
1985 (2) SA 756 (A)
[8]
Case no JR 2896/05 at para 40.