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[2015] ZALCJHB 99
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Fuelogic (Pty) Limited v Schoeman and Others (JR1235/13) [2015] ZALCJHB 99 (12 February 2015)
iAfrica Transcriptions
(Pty) Ltd
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE NO: JR1235/13
DATE: 12 FEBRUARY 2015
Not Reportable
In the matter between
FUELOGIC (PTY)
LIMITED
.................................................................................................
Applicant
And
J. SCHOEMAN &
OTHERS
..............................................................................................
Respondents
J U D G M E N T
EUIJEN AJ:
This is an application in terms of
Section 145
of the
Labour Relations Act 66 of 1995
, seeking to review
and set aside an award of a Bargaining Council Commissioner dated 28
May 2013, in which the Commissioner (the
second respondent) refused
an application for a postponement of the proceedings by the present
applicant, and instead allowed the
matter to proceed by default.
After hearing evidence from the first
respondent in these proceedings, the dismissed employee, Mr Schoeman,
the Commissioner rendered
an award in which she found that the
dismissal of Mr Schoeman, was procedurally and substantively unfair,
and she ordered that
he be reinstated with effect from 15 June 2013,
and paid an amount of R81 000, by way of arrear salary.
It is that award which the applicants
seek reviewed in these proceedings.
Although there was criticism levelled
at the way in which the grounds of review are formulated in the
founding affidavit by Mr Wagenaar
who appeared on behalf of the first
respondent, I accept that the principal ground of review is that the
Commissioner's decision
to refuse the postponement, is alleged be so
at variance with the evidence tendered in support of the postponement
application,
that the conclusion which the Commissioner reached, is
said to be grossly unreasonable, rendering the entire result of the
arbitration
proceedings susceptible to review.
The test on review is now well
established and I do not need to restate it. It is set out in the
Supreme Court of Appeal cases of
Heroldt v Nedbank Limited
[2013] 11
BLLR 1074
(SCA) at 1084 paragraph 25 and also Edcon Ltd v Pillemer NO
and Others
[2010] 1 BLLR 1
(SCA) at page 9, paragraph 16. That, in
brief, is that the result which the Commissioner reached must be so
unreasonable that
no reasonable Commissioner could have reached the
same conclusion.
It therefore becomes necessary to
examine the basis for the postponement and the Commissioner's reasons
for refusing it. The sole
basis upon which the applicant applied for
a postponement of the Bargaining Council proceedings was that its key
witness, Mr Church,
could not be at the Bargaining Council on the day
scheduled for the arbitration, namely 27 May 2013, as he had an
important MANCOM
meeting of the applicant to attend on the same day.
Although Mr Wagenaar has made
submissions about the bona fides of that application, since there is
evidence that it was arranged
only after receipt of the notice of set
down, I accept both that Mr Church was an essential member of the
MANCOM meeting and that
also it was an important meeting for the
applicant's business.
However, even accepting those two
facts, I do not at all accept that a MANCOM meeting on its own, no
matter how important it may
be to the applicant, can, without more
take precedence over Bargaining Council proceedings.
Ms Pillay, who appeared for the
applicant, levelled much criticism at the Commissioner's reasons for
not finding that it would be
impossible for Mr Church to get from the
Bargaining Council proceedings held in Bloemfontein, to the MANCOM
meeting to be held
in Johannesburg later that afternoon, if he was
required to attend the Bargaining Council proceedings. To my mind
that is not the
real issue.
The issue is that the applicant made a
deliberate decision to attend its own MANCOM meeting instead of the
duly constituted statutory
dispute resolution proceedings set down
for the same day in terms of the LRA. It ought therefore to have
realised, prior to the
Bargaining Council proceedings commencing,
that if it elected to hold its own business interests of attending
its MANCOM meeting
to be more important than the Bargaining Council
proceedings, then it would have to take the consequences of that
decision. There
is nothing to suggest that the MANCOM meeting could
not have been re-scheduled; as stated earlier, the applicant simply
considered
its own business interests to outweigh those of attending
at the Bargaining Council.
The consequences of that decision were
that Mr Church, who the applicant says was its essential witness at
the Bargaining Council
proceedings, was not then present at those
proceedings. The applicant also did not have any other witnesses
present, with whom
it could proceed at those proceedings.
Ms Pillay submitted that the
Commissioner made a mistake in believing that there were other
witnesses who were to be called by the
applicant, whereas the true
position was that only Mr Church would be called. To my mind this is
all immaterial.
The fact remains that on the day
appointed for the hearing at the Bargaining Council, the applicant
was not in a position to proceed
with any witnesses. The only
explanation offered as a basis for the postponement was that the
applicant considered its own MANCOM
meeting scheduled for later on
that day in Johannesburg, to be more important. That is the sole fact
which the Commissioner was
required to consider in support of the
postponement application.
Based on that fact, the Commissioner,
in my view, perfectly correctly refused the postponement, and I do
not find anything unreasonable
or irregular in her doing so.
That then meant that the Bargaining
Council proceedings went by default. The first respondent testified
in support of his own case,
and called one other witness. From the
transcript of the evidence led it is clear that the thrust of the
first respondent's evidence
was that he was not the person who was
responsible for the alleged negligent performance of the duties with
which he was charged
and that led to his dismissal. The applicant led
no evidence at the arbitration to contradict that.
Various other issues of procedural
fairness were debated between the parties but in my view the
Bargaining Council's conclusion
or the result, which is what the
authorities enjoin me to have regard for, is justifiable simply on a
finding of substantive unfairness
alone.
I do not therefore proceed to enter the
debate as to the reasonableness or otherwise, of the Bargaining
Council Commissioner's
findings on procedural fairness.
On an overall conspectus of this award
I cannot find anything unreasonable about it. To my mind it is
perfectly correct. I would
have also refused the postponement. In
those circumstances, the evidence led at the default proceedings is
unassailable and justifies
the Commissioner’s order made. I
simply cannot find any grounds on which to review that award.
In the result, in my judgment, the
application must be dismissed. Mr Wagenaar asked for additional
relief aimed at enforcing compliance
with the award if I was of a
mind to dismiss the review application. There is no formal
counter-application. In my view, I do not
have any power in the
absence of a proper counter-application, to award the extra relief
which Mr Wagenaar has sought. The first
respondent must enforce his
Bargaining Council award in the same way that every other litigant
does in terms of the
Labour Relations Act, taking
into account the
new amendments.
Therefore the order of the court in
this matter is that the review application is dismissed with costs.
TMG Euijen
Acting Judge of the Labour Court
Date revised: 27 February 2015
Appearances:
For the applicant: Ms Pillay
For the first respondent: Mr
Wagenaar