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[2015] ZALCJHB 114
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Mahamo v CMC Di Ravenna South Africa and Others (JR 1231/12) [2015] ZALCJHB 114 (9 April 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR 1231/12
DATE:
09 APRIL 2015
Not
reportable
In
the matter between:
PAUL
REFILOE
MAHAMO
...................................................................................................
Applicant
And
CMC
di RAVENNA SOUTH AFRICA
PG
MAVUNDLA JOINT
VENTURE
.........................................................................
First
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
......................................................................
Second
Respondent
BHEKI
KHUMALO
N.O
...........................................................................................
Third
Respondent
Date
heard: 17 December 2014
Date
delivered: 09 April 2015
Summary:
Review application. Incomplete record and no reviewable irregularity
shown. CCMA in any event has a discretion to grant
or refuse a
postponement. No reasonable explanation for delay in launching
review. Condonation application and review dismissed.
JUDGMENT
VAN
DER MERWE AJ
Introduction
[1]
This is an unopposed Review Application in which the Applicant (the
“employee”) seeks the review and setting aside
of the
Third Respondent's ("the arbitrator") arbitration award in
terms of
Section 145
of the
Labour Relations Act 66 of 1995
, as
amended.
[2]
The matter concerns the refusal of the arbitrator to grant a further
postponement to the employee and proceeding to hear the
matter
without the employee having legal representation present.
[3]
The employee was employed by the First Respondent on the 12
th
of March 2008 as a mine shift boss on a project based employment
contract for a project numbered 4600008065 which was phase one
(main
access tunnel) at Ingula Pump Storage Scheme.
[4]
According to the CCMA default award, the employee was charged with
the failure to observe safety rules and regulations and a
disciplinary hearing was held on 18 July 2008. The Applicant pleaded
guilty and was subsequently dismissed on the 23rd of July
2008.
[5]
The employee then proceeded to refer a dispute regarding an unfair
dismissal to the Second Respondent (the “CCMA”)
for
conciliation. The matter could not be resolved and was subsequently
referred to arbitration. The matter was heard by the arbitrator
on
the 12
th
of October 2011.
[6]
At the arbitration proceedings, the First Respondent called three
witnesses in support of its case. The First Respondent closed
its
case on the 12
th
of October 2011 but due to time
constraints the matter could not be finalised and was postponed
sine
die
.
[7]
The matter was to reconvene on the 11
th
of November 2011,
but the employee’s legal representative, Mr Tshifura, could not
attend as he was to appear in the Labour
Court on that day. The
matter was therefore postponed by the arbitrator. The CCMA then
proceeded to set the matter down for continuation
on the 10
th
of January 2012 at 12h00.
[8]
The employee’s attorney, Mr Tshifura, received notice on the
21
st
of December 2011 that he was to
sit
for a
supplementary examination on 10 January 2012. Mr Tshifura contends
that he had no support staff available to him and therefore
could not
type and send a letter to the CCMA and the First Respondent to
request a postponement.
[9]
On the 3
rd
of January 2012 Mr Tshifura managed to dictate
the letter requesting postponement of the matter scheduled for 10
January 2012.
[10]
The First Respondent contacted the employee’s attorney on 9
January 2012 informing him that the First Respondent would
oppose the
postponement. The employee’s attorney also ascertained that the
CCMA had not received his letter of 3 January
2012 and as such Mr
Tshifura faxed through the letter once more.
[11]
The employee’s attorney
thereafter
contacted
the arbitrator who indicated that he would not grant a further
postponement and that the matter would commence on the
scheduled
date.
[12]
The employee attended the arbitration proceedings on 10 January 2012
without the presence of his attorney and attempted to
request a
further postponement which was opposed by the First Respondent. The
request was denied by the arbitrator.
[13]
The arbitrator stated in paragraph 3 of his award that:
"By
their letter dated 3/1/2012 which was faxed to CCMA on the 9/1/2012,
the applicant’s attorney Mr Tshifura purportedly
applied for
postponement. Attached to such letter was a notice to Tshifura of
a
supplementary examination scheduled for 10/1/2012.
The applicant appeared without a representative on the 10/1/2012 and
further
requested a postponement. The respondent’s
representative opposed the postponement application. I considered and
refused
the postponement application. Reasons for my decision are
that the applicant’s request does not comply with
Rules 23
and
31
of the CCMA rules and by his own admission, Tshifura became aware
of the supplementary examination date on 21/12/2011 but failed
to
apply for postponement.”
[14]
The arbitrator dealt with various issues in his award and concluded
at paragraph 12
[1]
that:
“
The
second issue to be determined is the fairness of the applicant’s
dismissal. The evidence tendered by the three witnesses
who worked
with the applicant at the time of his dismissal was not unchallenged.
The applicant chose not to testify. Therefore
based on such evidence,
I find that on the balance of probabilities, the applicant’s
dismissal was procedurally and substantively
fair. In terms of
section 192
of the
Labour Relations Act, the
employer bears an onus
to justify the dismissal. In this case I find that the respondents
succeeded to justify the dismissal of
the applicant, therefore, in
the circumstances, I deem the following award fair and equitable.”
Review
Proceedings - Incomplete Record
[15]
This court is presented with an incomplete record of the CCMA
proceedings.
The
employee’s Supplementary Affidavit in fact records that the
record of arbitration proceedings is incomplete and that the
Commissioner’s notes are not clear and cannot be read
[2]
.
In addition, even though the Notice of Filing by the CCMA is included
in the paginated Labour Court Bundle
[3]
which indicates that the Rescission Application dated 10 February
2012 was filed, this application was not placed before
this court in
the current proceedings. Therefore the record of the rescission
proceedings is also incomplete.
[16]
A complete record allows a review judge to ascertain the full facts
that were before
an
arbitrator.
[17]
It is true that sometimes, in the absence of a complete record, the
courts have been robust in determining the matter on the
available
information. But these instances are limited to where the
"irregularity may be so patent from the award that a record
might not be necessary" or because there was no "material
dispute of fact going to the very heart of the review."
[4]
[18]
The Applicant was obliged to place a complete record before this
court and in the absence thereof, this court is in no position
to
properly adjudicate the review application before it and the review
application should on this ground alone be dismissed.
[5]
[19] The
employee’s legal representative, at the conclusion of his
submissions, requested a postponement in this court so
as to allow
him to obtain a complete record of the CCMA proceedings. The request
for a postponement is refused as the employee
party had sufficient
time to file the record prior to the enrollment date and, in any
event, I do not find any merit in the employee’s
review
application as will appear from what is stated below.
Review
Proceedings
o
[20
]
According to the Notice of Motion the employee seeks the review and
setting aside of the arbitrator’s rescission ruling
dated 15
March 2012 alternatively the review and setting aside of the
arbitrator’s default arbitration award of 11 January
2012.
[21] The
employee however fails to allege any reviewable irregularities in his
Founding Affidavit as supplemented in his Supplementary
Affidavit.
[22] The only
complaint appearing from the papers seems to be that the employee is
alleging that it was improper for the arbitrator
to refuse the
request for postponement on 10 January 2012 since the employee was
previously represented by his legal practitioner.
It is patently
clear that this attack is only against the so-called “Default
Award” and there is thus no challenge
on the papers to the
Rescission Ruling.
[23] The
challenge to the “Default Award” is also doomed to fail.
The arbitrator had a discretion to determine whether
a postponement
should have been granted. This discretion is judicially exercised. I
find nothing untoward in the arbitrator’s
decision to refuse
the postponement especially when the following factors are taken into
account:
23.1
as stated by the arbitrator, the employee’s request for a
postponement did not comply with
rules 23
and
31
of the CCMA rules
and the employee’s legal representative, by his own admission,
became aware of his unavailability on 21
December 2011;
23.2
the applicant’ and his legal representative should have been
aware of the fact that this matter has already been postponed
once
before and that it is generally accepted that unlike in the courts of
law, postponements in arbitration proceedings are not
readily
granted; and
23.3
the employee and his legal representative or an alternative legal
representative should have become prepared to the arbitration
on 10
January 2012 especially given the fact that they were informed that
the request for postponement would be opposed and were
given prior
warning that the arbitrator was not willing to postpone the
arbitration
[6]
.
[24]
The review of the default award is furthermore excessively late. The
proceedings should have been instituted within six weeks
of receiving
the award according to
Section 145
(i)(a) of the
Labour Relations
Act, No. 66 of 1995
, as amended. The review proceedings were only
instituted on 8 June 2012 thus some 15 weeks late. Condonation in
this regard is
refused for the reasons set out below.
Condonation
[2
5
]
In
Melane
v Santam Insurance Co Ltd
[7]
Holmes JA explained the relevant principles applicable to an
Application for Condonation as follows: “the basic
principle
is that the Court has a discretion, to be exercised
judicially upon a consideration of all the facts, and in essence it
is a matter
of fairness to both sides. Among the facts usually
relevant, is the degree of lateness, the explanation thereof, save of
course
that if there are no prospects of success there would be no
point in granting condonation”
[26] No
reasonable explanation has been offered on the papers for the delay
of some 15 weeks.
[27] The
prospects of success in these review proceedings are also very poor
given the above and the fact that the employee
pleaded guilty to the offence in the disciplinary hearing and chose
not to testify
and refute the evidence offered by the First
Respondent’s witnesses in the arbitration proceedings. I
therefore cannot see
any reason for this Court to overturn the ruling
of the arbitrator.
Conclusion
[28
]
In the circumstances, I make the following order:
2
8
.1
The Applicant's Condonation Application is dismissed.
2
8
.2
The Applicant's Review Application is dismissed.
2
8
.3
There is no order as to costs.
G
Van Der Merwe
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: R T Tshifura Attorneys
For
the Respondent: Unopposed
[1]
See page 32 of the court bundle
[2]
See
Record page 54 paragraphs 4 and 5
[3]
See
Record pages 43 and 57
[4]
See
Shoprite
Checkers (Pty) Ltd v CCMA
(2002) 23 ILJ 943 (LC) at par 11,
Ram
Hand-to-Hand Couriers v National Bargaining Council for the Road
Freight Industry
C174, 2007 and
Lifecon
Special Health Services (Pty) Ltd v CCMA
et
al
DA 15/02.
[5]
See
Metalogic
Engineering and Manufacturing CC v Fernandes and Others
(2002) 10 BLLR 985
(LC).
[6]
See
Record page11 paragraph 14)
[7]
1962
(4) SA 532
(A)