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[2015] ZALCJHB 181
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NUDPW obo Kgwele v CCMA and Others (JR1663-13) [2015] ZALCJHB 181 (17 June 2015)
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR1663-13
In the matter between:
NUDPW obo KGWELE,
D
Applicant
and
CCMA
First Respondent
CARMEN WARD
N.O
Second Respondent
SELLO NANISO
N.O
Third Respondent
MIDDLEBULT EIEDOMME
Fourth Respondent
Heard:
26 January 2015
Delivered:
17 June 2015
Summary:
Application to review the rescission ruling made by the Commissioner.
The Commissioner had refused
to rescind the ruling dismissing the
employee’s claim of alleged unfair dismissal. The powers
of the CCMA to determine
the place where the matter will be heard in
terms of s161 of the LRA and Rule 24 of the CCMA Rules. Applicant
contending
that he was entitled to have the matter heard at the
region of his choice.
JUDGMENT
MOLAHLEHI, J
Introduction
[1]
This
is an application to review and set aside the ruling of the second
respondent (“the Commissioner”) made under case
number FS
2770-13 and dated 19 July 2013. In terms of that ruling, the
Commissioner dismissed the applicant’s application
to rescind
the ruling dismissing his alleged unfair dismissal claim due to his
failure to attend the hearing on 14 February 2011
at Welkom.
[2]
The
fourth respondent has opposed the application and has raised a
preliminary point concerning the
locus
standi
of SACWU to represent the individual applicant. .
Background facts
[3]
It
is common cause that the individual applicant was dismissed by the
fourth respondent, apparently, for allegedly assaulting another
employee.
[4]
Aggrieved
by the dismissal, the individual applicant referred an alleged unfair
dismissal dispute to the CCMA assisted by NUDPW.
It is common cause
that NUDPW has since been deregistered and accordingly could not
represent the individual respondent. SACWU
has subsequently taken
over the representation of the individual respondent in these
proceedings.
[5]
The CCMA set the matter down with notice to all the parties for a
hearing at Kroonstad. The individual applicant was unhappy
with the
matter being set down at Welkom as he preferred to have had it heard
at Welkom which is nearer to where he stays. He in
this regard
addressed a letter dated 6 May 2013 to the CCMA requesting that his
matter be consolidated with case number FS2699-12
and be scheduled
for a hearing at Kroonstad.
[6]
The
request to have the matter consolidated and rescheduled for a hearing
at Kroonstad was refused by the Convening Senior Commissioner
[CSC].
The decision of the CSC was communicated to the applicants in a
letter dated 10 May 2013 which reads as follows:
‘
The
above-mentioned matter and your letter dated 6 May 2013, has
reference I have considered the request but cannot concede for
the
following reasons:
·
The
employer party in FS 2770-13 and FS 2769-13 is not the same employer
and thus the two cases cannot be heard together.
·
Rescheduling
FS 2770-13 to be head on 13 May 2013 does not comply with the
required notice.
The
Con/Arb hearings for FS 2770-23 on 14 May 2013 in Welkom
and FS 2769-13 on 13 May 2013 in Kroonstad will still be
heard as
scheduled.’
[7]
It
is common cause that the matter proceeded as scheduled on 14 May 2013
at Welkom. The individual applicant did not attend the
hearing and it
was for that the reason that his claim was dismissed.
[8]
As
indicated earlier the individual applicant being unhappy with the
decision and assisted by his erstwhile union filed the rescission
application which was unsuccessful. It was for that reason that the
present proceedings were instituted.
The point
in limine
[9]
The
fourth respondent as indicated above has raised a point concerning
the
locus
standi
of SACWU to represent the individual applicant. Its contention is
that the union cannot represent the individual applicant because
he
is not a member.
[10]
In
the replying affidavit, Mr Mogase, the official of SACWU, states the
following in relation to the preliminary point raised by
the fourth
respondent:
‘
locus
standi
issue
2.1
Previously the Applicant was the member National Union of Democratic
Workers [NUDPW], and
I was the Union Organizer for the same Union at
the same Region.
2.2
On the 09 October 2013 NUDPW was deregistered and on the 06 January
2014 I was employed
by SACWU and my first task was to recruit
all the members of an NUDPW in my area into SACWU.
2.3
Applicant is one of those who I recruited into SACWU while Applicant
was having this matter
against the Respondents.
2.4
I represent the Applicant because he is a paid up member of SACWU...’
[11]
Mr
Mogase in contending that SACWU has the right to represent the
individual applicant relies on the provisions of s 161 of the
Labour
Relations Act of 1995 (the LRA) and s 35(3) (f) of the Constitution.
[12]
Section
35 of the Constitution deals broadly with the rights of arrested,
detained and accused persons. Sub-section 35(3) (f) of
the
Constitution provides that an arrested, detained and accused persons
have the right to choose and be represented by a legal
representative.
[13]
The
broad principle governing employment rights in as far as the
Constitution is concerned is found in section 23.
[1]
The
full and specific expression of those rights is set out in the LRA.
For the purposes of this judgment, the relevant section
that applies
is section 161 of the LRA which reads as follow:
‘
161.
Representation before Labour Court
In
any proceedings before the Labour Court, a party to the proceedings
may appear in person or be represented only by -
(a)
a
legal practitioner
;
(b)
a
director
or
employee
of the party;
(c)
any
office-bearer
or
official
of that party’s
registered
trade union
or registered
employers’
organisation
;
(d)
a designated agent or official of a
council
; or
(e)
an
official
of the Department of Labour.’
[14]
The
two key requirements for representation by a trade union in the
Labour Court in terms of s 161 of the LRA is that the employee
must
be a member of the trade union and the trade union must be
registered. There is no restriction imposed on that right except
for
these two requirements. The fact that the union seeking to represent
an employee, does not organise in the industry or sector
where the
employee is employed is irrelevant as concerning the right to
representation before the court. The issue of membership
of the
union is an internal affair of the union and, therefore, no third
party, including the employer, has the right to interfere
in that
regard.
[15]
In
NUM
obo Mabote v Kalahari Country Club
,
[2]
Steenkamp
J in dealing with facts very similar to those of the present case
observed:
‘
It
is for the trade union to decide whether or not to accept an
application for membership and whether or not that member is covered
by its constitution. It could not have been the intention of the
legislature to unduly restrict the right to representation by
a trade
union to the extent that it is up to a third party… to deny a
worker that right, based on the trade union’s
constitution.
The
NUM constitution makes it clear that eligibility for membership is
"subject to the approval of the branch committee which
has
jurisdiction." It is up to the union and its branch committee to
deal with any challenge to membership. It is not for
an employer to
interfere with the internal decisions of a trade union as to whom to
allow to become a member.’
[16]
It
is common cause that SACWU is a registered trade union. The version
of Mr Mogase that he recruited the individual applicant from
NUDPW
has not been disputed by the fourth respondent. I am also satisfied
from the submissions made by Mr Mogase that the individual
applicant
is a member of SACWU and thus SACWU has the right to represent him
before this Court.
[17]
In
light of the above, the preliminary point raised by the fourth
respondent stands to fail.
The
late filing of the answering affidavit
[18]
The
applicants have in their heads of argument raised the point
concerning the late filing of the fourth respondent’s answering
papers. In this respect, the applicants served and filed their
founding affidavit on 13 September 2013. The fourth respondent filed
its answering affidavit on 25 November 2014 without any application
for condonation. The delay in filing the answering affidavit
is
excessive. In the absence of an application for condonation and the
granting of the same by this court, the fourth respondent’s
answering affidavit has to be treated as not being properly before
this court. Accordingly, the matter has to be treated as being
unopposed.
[19]
The
fact that the matter is treated as unopposed does not mean that the
ruling of the Commissioner stands to be automatically reviewed.
There
is a general perception in the public, in fact even amongst some
lawyers, that once a review is unopposed the Court is obliged
to
grant the relief sought by the applicant. In law, the Court is
enjoined to consider the review application even when it is
unopposed. The Court applies the same test as it would apply when
considering an opposed review application. I will revert to the
test
which the court has to apply later in this judgment.
The grounds of review
[20]
It
is not clear as to what the grounds of review are upon which the
applicant relies on in seeking to review the ruling of the
Commissioner. The deponent to the founding affidavit, Mr Mogase
says the issues which this court is required to determine
are:
‘
3.1
Whether the CSC acted unlawfully, unreasonable and procedurally
unfair when she refused to concede
to our lawful, reasonable and
procedurally fair request...
3.2
Whether Commissioner Sello Naniso has exercised his sense of fairness
when he decided on
the Rescission ruling when he blindly followed his
CSC which is the subject of tis application.
3.3
Whether the CCMA is at liberty to schedule at random as it deems
fit.’
[21]
Mr
Mogase further states under the heading “REASONS FOR THE
REVIEW” that:
‘
4.1
First of all it is insensitive of the CSC, Carmen Ward, to dismiss
our fair request like that
without a second thought. There were many
remedies at her disposal, and this would apply to the Third
Respondent.’
[22]
At
paragraph 4.3, Mr Mogase says that the reason for the failure to
attend the hearing as directed by the notice of set down was
that the
individual applicant had requested that the matter should be heard in
Kroonstad and not Welkom. He seems to also suggest
that the decision
of the Commissioner is based on his fear to contradict the decision
of the CSC not to reschedule the matter to
Kroonstad.
[23]
The
other point made by Mr Mogase is that the CCMA is inconsistent in the
manner in which it allocates matters in terms of geographic
spread.
He gives examples of two cases where they had pointed out to the CSC
that the matters were incorrectly set down in terms
of their
geographic relations to the applicants. According to him, the CSC did
acknowledge that to have been a mistake and apologised
for it.
[24]
The
applicants’ application stands to be dismissed for the above
reasons alone. As will appear later in this judgment the
review
application stands to be dismissed even when a liberal interpretation
is adopted to what is stated in the applicants’
papers. The
liberal interpretation entails reading into the applicants’
papers the grounds as envisaged in s 145 of the LRA.
The essence of
the question to be answered in this regard is whether the decision
reached by the Commissioner is one that a reasonable
decision maker
could not reach.
The ruling
[25]
In
dismissing the applicants’ application for rescission, the
Commissioner reasoned that the individual applicant failed to
furnish
a reasonable explanation for his failure to attend the hearing. He
further found that the individual applicant received
the letter from
the CSC advising him that his request to have the matter set down at
Kroonstad was refused and that he wilfully
stayed away from the
hearing. It was for these reasons that the Commissioner found that
the individual’s application to rescind
the dismissal ruling
did not comply with the requirements of section 144 of the Labour
Relations Act of 1995 (LRA).
Evaluation/Analysis
[26]
The
test to apply in considering a review application is now well
established. The test is that of a reasonable decision maker set
out
in
Sidumo
and Another v Rustenburg Platinum Mines and Others
.
[3]
The
enquiry to apply in implementing the test is to determine whether the
decision reached by the Commissioner is one which a reasonable
decision maker could not reach.
[27]
The
reasonableness or otherwise of the ruling of the Commissioner in the
present matter has to be determined in the context of the
principles
governing rescission of a ruling. It has to be considered
specifically within the meaning of s 144 of the LRA.
[28]
Section
144 of the LRA 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 or ruling –
(a)
erroneously
sought or erroneously made in the absence of any party affected by
that award;
(b)
in
which there is an ambiguity, 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.’
[29]
In
the present matter, the issue of the ruling having been made
erroneously in the absence of the individual applicant does not
apply
as it is common cause that he was properly served with the notice of
set down and that he did receive the same. In other
words, the
individual applicant was aware of the time, date and venue where the
matter would be heard. He objected to the venue
and insisted that the
matter should be heard at Kroonstad and not Welkom. He in other words
wilfully stayed away from attending
the hearing.
[30]
It
is common cause that the request to have the matter rescheduled to
Kroonstad was rejected by the CSC who also in writing informed
the
individual applicant that the matter would proceed as scheduled at
Kroonstad. On these facts it can therefore not be said that
the
ruling was erroneously made in the absence of the individual
applicant.
[31]
The
issue that then arose is whether the individual applicant has shown
good cause for his non-attendance of the hearing.
[32]
Although
s 144 is silent on the need to show good cause in the event of a
party defaulting in attending proceedings, the Labour
Appeal Court
interpreted the section to included “good cause” to be
shown in the event failure to attend a hearing.
The test to apply in
determining good cause is set out by the LAC in
Shoprite
Checkers (Pty) Limited v Commission For Conciliation, Mediation and
Arbitration and Others
,
[4]
per
Jappie AJA in the following terms:
‘
[35]
The test for good cause in an application for rescission normally
involves the consideration of at least two factors. Firstly,
the
explanation for the default and secondly whether the applicant has a
prima
facie
defence.
In
Northern
Province
Local
Government Association v CCMA
and
Other
[2001]
5 BLLR 539
(LC
)
at para 16 it was stated:
“
An
application for the rescission of a default judgment must show good
cause and prove that he at no time denounced his defence,
and that he
has a serious intention of proceeding with the case. In order
to show good cause an applicant must give a reasonable
explanation
for his default, his explanation must be made bona fide and he must
show that he has a bone fide defence to the plaintiff’s
claims.”’
[33]
The
LAC further quoted with approval what was said in
MM
Steel Construction CC v Steel Engineering and Allied Workers Union of
SA and Others,
[5]
where
the court held that:
‘
These
two essential elements ought nevertheless not to be assessed
mechanistically and in isolation. While the absence of
one of
them would usually be fatal, where they are present they are to be
weighed together with relevant factors in determining
whether it
should be fair and just to grant the
indulgence.
. .”
[34]
It
is apparent from the reading of the papers that the reason for not
attending the hearing by the individual applicant was because
he was
opposed to the matter being heard at Welkom. He did not, in this
regard, assert that he had a right to have his matter heard
at
Kroonstad. He accepted that scheduling the matter to Kroonstad was an
indulgence which he requested from the CCMA. Once the
indulgence was
refused he had a duty to attend the hearing. He, as the Commissioner
indicates in the ruling, had the opportunity
to appear at the hearing
and raise his concerns including the issue of joinder.
[35]
The
law is very clear as to the powers and the authority of the CCMA for
setting down matters such as the present one. Firstly,
in terms of s
114 of the LRA, the CCMA has a national jurisdiction to determine
matters that fall under its jurisdiction. Secondly,
CCMA
Rules provide that unless Senior Commissioner directs otherwise a
dispute must be heard in the province in which it arose.
[6]
This
means that matters in the CCMA could even be heard outside the
province which they occurred. The rules also give the power
to the
Senior Commissioner to determine the venue where the proceedings will
take place. In the present matter, as indicated earlier,
the CSC, in
exercising her powers in terms of the rules, directed that the
proceedings be conducted in Welkom.
[36]
In
light of the above, the only conclusion reach is that the ruling of
the Commissioner cannot be said to have been made in error
because
the individual applicant was aware of the date of the hearing. He
wilfully failed to attend the hearing and has not been
able to show
good cause for his non-attendance of the hearing. I do not however
believe that costs should in the circumstances
of this case be
allowed to follow the result.
Order
[37]
In
the circumstances, the applicants’ application to review the
ruling made by the Second Respondent under case number FS
2770-13 and
dated 19 July 2013 is dismissed with no order as to costs.
_____________
Molahlehi, J
Judge of the Labour
Court of South Africa
Appearances
:
For the Applicant:
Union
Official Mr Mogase
For the
Respondent:
Adv. Obelholzer
[1]
The
purpose of the LRA specific to the present matter is set out in
section 1(a) of the LRA which provides: “
To
give effect to and regulate the fundamental rights conferred by
section 23 of the Constitution.”
[2]
[2013] 10 BLLR 1020
(LC); (2013) 34 ILJ 3296 (LC) at paras 27 and
28.
[3]
[2007]
12 BLLR 1097(CC)
at para 110.
[4]
(2007)
28
ILJ
2246 (LAC) at para 35.
[5]
(1994)
15
ILJ
1310 (LAC) at 1311J-1312A.
[6]
Rule
24 provides: ‘(1) Where a conciliation or
arbitration will take place.—(1) A dispute must be conciliated
or arbitrated in the province in which the cause of action arose,
unless a senior commissioner in the head office of the Commission
directs otherwise. (2) The Commission within a province determines
the venue for conciliation or arbitration proceedings.
This
reinforced also by the CCMA Practice Manual which provides:
2.4.3
A party to a dispute does not have a choice as to where
conciliations and arbitrations should take place. A dispute must
be
conciliated or arbitrated in the region in which the cause of action
arose (usually where the workplace was), unless a senior
commissioner in the head office of the CCMA directs otherwise.”