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[2014] ZALCJHB 151
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Prodin (Pty) Ltd v NUMSA obo Funo and Others (JR1796/12) [2014] ZALCJHB 151 (6 May 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT REPORTABLE
CASE NO: JR1796/12
In the matter between:
PRODIN
(PROPRIETORY)
LIMITED
Applicant
and
NUMSA
obo LAWRENCE
FUNO
First
Respondent
CENTE FOR DISPUTE
RESOLUTION (MEIBC) Second
Respondent
JOSEPH
MPHAPHULI Third
Respondent
Heard:
2 July 2013
Delivered:
6 May 2014
Summary:
Review of a rescission ruling- applicant failing to show good cause
for not appearing at the arbitration
hearing- commissioner rescinding
award- rescission ruling review and set aside- rescission application
dismissed.
JUDGMENT
MANCHU
AJ
Introduction
[1] The Applicant has
brought an application to review and set aside a rescission ruling
issued by the Second Respondent under case
number MEGA 33898.
[2] The facts that give
rise to this application are set out below.
Background facts
[3]
Mr Lawrence Funo (“Mr Funo”) was dismissed on 17 August
2011 after being found guilty of a charge of intimidation
and
assault.
[4]
The First Respondent, on behalf of Mr Funo, referred his dismissal to
conciliation on 12 September 2011. The events of 12 September
are
important for the determination of this review.
[5]
The dispute that was referred to conciliation on 12 September 2011
remained unresolved and a certificate to that effect was
issued. What
is significant is that, with both parties present, the arbitration
was postponed to 16 April 2012. Therefore, both
parties were aware,
as at 12 September 2011, that the hearing was postponed to 16 April
2012.
[6]
On 16 April 2012, Mr Funo failed to attend the arbitration.
[7]
It appears that, by chance, two officials from NUMSA were at the CCMA
for another matter and they became aware that the First
Respondent’s
arbitration hearing was also set down. These two officials, who were
not initially involved in Mr Funo’s
referral, then attended the
hearing. Their attendance was presumably for purposes of obtaining a
postponement.
[8]
The arbitration was dismissed on account of Mr Funo’s
non-appearance.
[9]
The First Respondent brought a rescission application against the
dismissal award.
[10]
In the affidavit in support of the rescission application, the First
Respondent gave an account on how the facsimile of the
notice of set
down had not reached his attention and how the First Respondent was
unaware that the arbitration hearing had been
set down for 16 April
2012.
[11]
The affidavit also alleged that the First Respondent’s
prospects of success were good because ‘the presiding officer
despite the fact that she found that there was no evidence that the
Applicant had incited a group of people to attack and assault
(his)
co-employees, she concluded that she had to find in favour of
respondent’ (the Applicant). Nothing more of substance
was said
of the First Respondent’s prospects of success.
[12]
The Applicant filed a comprehensive opposing affidavit in opposition
to the rescission application. The affidavit raised several
points
in
limine
and dealt
ad seritium
with the allegations in the
founding affidavit.
[13]
Of significance, the opposing affidavit highlighted the fact that the
First Respondent ought to have been aware of the date
of arbitration
because the date was determined at conciliation, with both parties
present. There was no replying affidavit before
the Second
Respondent, therefore, this allegation remained an undisputed fact.
Discussion of the
award
[14]
In his rescission ruling, the Third Respondent found that Mr Funo had
not attended the scheduled arbitration on 16 April 2012
because he
had no knowledge that the matter had been scheduled for that day. The
Third Respondent also found that Mr Funo was not
found guilty of any
misconduct at the pre-dismissal hearing. These findings were not
consistent with the evidence in the affidavits
before him.
[15]
The grounds on which a commissioner can rescind awards are set
out in section 144 of the LRA. The grounds are essentially the same
as those that permit judges and magistrates to rescind judgments or
orders.
[16]
In
Shoprite
Checkers (Pty) Ltd v CCMA and Others
,
[1]
the Labour Appeal Court held that section 144 must be interpreted so
as to include good cause as a ground for the rescission of
a default
arbitration award.
[17]
Good cause has been found to be present when an Applicant has given
reasonable explanation for his default and has shown a
bona
fide
defence or prospect of success to the claim.
[2]
Explanation
for default
[18]
The First Respondent argued that it was not aware of the arbitration
hearing because the notice, although properly served,
was not brought
to the attention of the relevant person at the NUMSA.
[19]
This argument ignored the fact that the date of the arbitration
hearing was determined at conciliation, where both parties
were
present.
[20]
The matter was specifically postponed for arbitration on 16 April
2012 at the conciliation hearing. The First Respondent did
not
explain why it defaulted in appearing when it was appraised of the
date already in September 2011.
[21]
Furthermore, there were no allegations in the affidavit explaining
why Mr Funo failed to attend the hearing. The affidavit
instead
confined itself to explaining the default of the NUMSA
representative.
[22]
Even if I accept that the notice of set down did not reach the
attention of the relevant official at NUMSA, there still has
not been
a proper explanation on why the First Respondent himself failed to
appear.
[23]
The First Respondent did not need the notice of set of down to advise
him of the date because he was already advised of the
date at
conciliation.
[24]
I am, accordingly, of the view that there is no reasonable
explanation for Mr Funo’s default in appearing at the hearing.
[25]
The Third Respondent’s finding on this issue is not one which a
reasonable decision-maker could make.
Prospects
of success in the referral
[26]
The Third Respondent found that the First Respondent enjoyed
prospects of success.
[27]
From the record of the rescission application, I am unable to see how
the Third Respondent was persuaded of the First Respondent’s
prospect of success. The First Respondent failed to give a
satisfactory account of its prospect of success.
[28]
The Applicant in turn, gave a detailed account of the events that led
to the Mr Funo’s dismissal. The First Respondent
failed to deal
or respond to these allegations.
[29]
The Third Respondent appears to have not placed any weight or
consideration to the allegations made by the Applicant.
[30]
The Third Respondent found that the “submission that the
dismissal lacked legal and factual support in that the Applicant
was
found guilty of misconduct makes for a successful application”
was not supported by any evidence before him. This appears
to be a
conclusion reached by the Third Respondent and submitted by the First
Respondent, without any evidentiary support.
[31]
Accordingly, I find that the First Respondent’s rescission
application did not demonstrate any prospects of success by
the First
Respondent.
[32]
Lastly, there was a condonation application before me for the late
filling of the First Respondent’s answering affidavit.
The
affidavit was filed some 41 days late. After considering the
application for condonation, I am inclined to grant condonation.
My
findings above include a consideration of the First Respondent’s
affidavit.
[33]
I, accordingly, make an order:
1)
Reviewing and setting aside the rescission
ruling that was issued by the Second Respondent under case number
MEGA 33898.
2)
Dismissing the First Respondent’s
rescission application that was launched on 9 May 2012 relating to
the dismissal ruling
that was issued.
3)
Ordering the First Respondent to pay the
costs of this application.
________________________
Manchu AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Joe Campanella
Instructed
by: Dewey-DeSouza Attorneys
For
the Respondents: Tumiso Manasoe
Instructed
by: NUMSA
[1]
[2007] 10 BLLR 917
(LAC) at para 38.
[2]
See
Total
Facilities Management Co (Pty) Ltd v CCMA
[2007] ZALC 53
;
[2008] 1 BLLR 73
(LC) at para 24.