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[2014] ZALCJHB 149
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AM Germishuizen t/a AC Payroll And Recruitment Services Solution CC v Fulton and Others (JR964/12) [2014] ZALCJHB 149 (6 May 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT REPORTABLE
CASE NO: JR964/12
In the matter between:
AM GERMISHUIZEN t/a AC
PAYROLL AND
RECRUITMENT SERVICES
SOLUTION
CC Applicant
and
MICHAEL DAVID
FULTON First
Respondent
THE
CCMA Second
Respondent
COMMISSIONER JOHN
SHARDLOW Third
Respondent
COMMISSIONER R
MCGREGOR Fourth
Respondent
Heard:
4 July 2013
Delivered:
6 May 2014
Summary:
Review of rescission application and jurisdictional ruling- applicant
not attending arbitration hearing-
default arbitration granted
against applicant- reason for non attendance unreasonable-
commissioner dismissing rescission application
– commissioner
not having jurisdiction to entertain arbitration hearing-
commissioner rescission and jurisdictional rulings
reasonable –
review applications dismissed.
JUDGMENT
MANCHU
AJ
Introduction
[1] The applicant has
brought an application to review and set aside two decisions of the
second respondent.
[2] The first decision is
a rescission ruling handed down on 1 February 2012. The second is an
arbitration award handed down on
8 March 2012.
[3] Although the review
is against the above two decisions, there are in effect three
rescission rulings that form part of the facts
of this review.
[4] The three rescission
rulings are concerned with the same matter that had been referred to
arbitration and consequently from
the same default arbitration award.
[5] It appears that in
the end, the applicant wishes to have this Court placed the applicant
in a position where it can have
the facts around the dismissal
dispute finally heard at the CCMA. The background facts against which
this review is brought are
set below.
Background facts
[6] On 15 February 2011,
the first respondent referred an unfair dismissal dispute to the
CCMA. The dispute remained unresolved
after conciliation and it was
then referred to arbitration on 9 May 2011.
[7] The applicant failed
to attend the arbitration hearing on 9 May 2011 and the arbitration
proceeded in its absence.
[8] The third respondent,
Commissioner John Shardlow, handed down a default award in which he
found the first respondent’s
dismissal unfair and ordered the
applicant to,
inter alia
, pay compensation in the amount of R
60 000, outstanding commissions in the amount of R 138 530.30 and
notice pay in the amount
of R7500.00. The award is dated 15 May 2011
and I shall refer to it as the default award.
[9] The applicant alleges
that it failed to attend the arbitration proceedings because it did
not receive a notice of set down.
This allegation is disputed by the
first respondent. A dispute on this issue became a central issue in
the various rescission applications
that followed.
[10] On 01 June 2011, the
applicant brought an application to rescind the default award.
[11] Although the first
respondent did not attend the hearing, he did file an opposing
affidavit. The opposing affidavit argued
that the applicant did in
fact receive the notice of set down and that the rescission
application was one day late but that the
applicant failed to bring a
condonation application.
[12] The rescission
application came before Commissioner Shardlow who gave a ruling
rescinding the default award. I will refer to
this rescission ruling,
which is dated 29 July 2011, as the first rescission ruling.
[13] It is unclear
whether Commissioner Shardlow considered the opposing affidavit, his
ruling however said that the matter was
unopposed.
[14] The matter was then
set down for arbitration on 7 September 2011.
[15] Before the
arbitration was heard in September, the first respondent brought an
application to rescind the first rescission
ruling. This application
was brought on 11 September 2011.
[16] The application to
rescind the first rescission ruling was heard on 7 September, the
date on which the arbitration hearing
was meant to commence.
[17] Commissioner
Shardlow was persuaded that the first rescission ruling had been
erroneously granted because the applicant had
failed to bring a
condonation application for the late filling of the rescission
application. Therefore, a second rescission ruling,
which rescinded
the first rescission ruling, was made. I refer to the rescission
ruling of September 2011 as the second rescission
ruling.
[18] The applicant
alleged that a condonation application was in fact brought and that
Commissioner Shardlow had failed to consider
this. This allegation
was brought to the attention of Commissioner Shardlow, in a formal
application.
[19] On 2 February 2012,
Commissioner Shardlow issued a condonation ruling, condoning the late
referral of the first rescission
application and a second ruling
declining to rescind his second rescission ruling. I will refer to
the ruling declining to rescind
the second rescission ruling as the
third rescission ruling.
[20] I am unable to
establish from the papers, with certainty, whether the various
rescission applications were the appropriate
remedial courses for the
parties for revisiting Mr Shardlow’s various decisions. None of
the parties that appeared before
me raised any attack on this issue.
Therefore I accept, for purposes of this judgment, that they were
appropriate courses.
[21] The matter was
finally set down for arbitration on 8 March 2012 and it came before
the fourth respondent, Commissioner McGregor.
[22] Commissioner
McGregor found that he did not have jurisdiction because the default
arbitration award remained in force.
[23] This review
application is against Commissioner Shadlow’s third rescission
ruling and Commissioner McGregor’s jurisdiction
ruling.
Rescission ruling
[24] Commissioner
Shardlow, found that the applicant gave different versions of what
led to the first respondent’s dismissal
and that these could
only be tested at arbitration. The commissioner was accordingly
minded that the applicant raised a defence
worth referring to
arbitration. This spoke to the applicant’s prospects of
success.
[25] The real dispute was
whether the applicant had given a reasonable explanation for its
failure to attend the arbitration on
09 May 2011.
[26] Ms Germishuizen said
that she failed to attend the hearing on behalf of the applicant
because she did not receive the notice
of set down. Although the
notice of set down was sent to her fax number, it did not come to her
attention.
[27] The first
respondent’s account contradicts Ms Germishuizen’s
version. The first respondent says that Ms Germishuizen
was aware of
the set down and in fact advised her legal representative that she
could not attend the hearing because she wished
to attend a funeral.
He further alleges that Ms Germishuizen failed to provide any proof
of such funeral or that there has indeed
been a death affecting Ms
Germishuizen.
[28] The version put
forward by the first respondent was not met or contradicted by the
applicant. The applicant in its replying
affidavit, in the rescission
application did not place any substantial allegations or facts to
meet the first respondent’s
account.
[29] Since this was the
primary issue in the rescission application, one would have expected
the applicant to deal with this version
in its founding affidavit to
the rescission application in this Court, but it failed to do so.
[30] Commissioner
Shardlow considered the parties’ versions on whether the
applicant was aware of the hearing and found that
the first
respondent’s version was more probable. It is difficult to see
how he would have found otherwise in the absence
of evidence showing
to the contrary.
[31] Although the
applicant has demonstrated prospects of success, he has failed to
give a satisfactory explanation for his default.
[32]
It is not sufficient if only one of these requirements is met. An
ordered judicial process would be negative if a party who
could offer
no explanation of his default other than his disdain of the rules was
nevertheless permitted to have a judgment against
him rescinded on
the ground that he had reasonable prospects of success on the
merits.
[1]
[33]
Since the applicant sought rescission, it was encumbered on it to
give a satisfactory explanation for his default.
[2]
[34] I find that
Commissioner Shardlow’s finding on the applicant’s
failure to attend the arbitration hearing to be
reasonable and not
susceptible of interference.
[35] Commissioner
McGregor’s findings stand or fall on the judgment in respect of
Commissioner Shardlow. Since the court upholds
Commissioner
Shardlow’s rescission ruling, the award of Commissioner Mc
Gregor is also upheld.
[36]
The review application is accordingly dismissed with no order to
costs.
________________________
Manchu AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For the
Applicant: J N W Botha
Instructed
by:
M D Swanepoel Attorneys
For the Respondents: J
F Du Toit
Instructed
by:
Henk Kloppers Attorneys
[1]
Chetty
v Law Society Transvaal
1985
(2) SA 756
(A), at 765D-F.
[2]
Meintjies
v HD Combrinck (EDMS) Bpk
1961
(1) SA 262
(A) at 263 H – 264A; and
Salojee
and Another v Minister of Community Development
1965
(2) SA 135
(AD) at 13E-F.