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[2015] ZALCJHB 218
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National Union of Mineworkers and Another v Commission for Conciliation Mediation And Arbitration and Others (JR1864/11) [2015] ZALCJHB 218 (22 July 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 1864/11
NATIONAL UNION OF
MINEWORKERS
REUBEN VAN DONDER
First Applicant
Second Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION AND ARBITRATION
COMMISSIONER JACOB
DANIEL SELLO NO
SA
EARTHWORKS LTD
First Respondent
Second
Respondent
Third
Respondent
Heard:
12 June 2014
Delivered:
22 July 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
The
applicants seek to review and set aside the arbitration award dated 4
July 2011, issued under case number GATW7166-10 by the
second
respondent (Commissioner), acting under the auspices of the first
respondent (The CCMA). In the award, the Commissioner
had found that
the dismissal of the second applicant (Van Donder) was substantively
fair, and had dismissed his referral. The application
is opposed.
Preliminary
points:
[2]
Both
parties had raised preliminary points. The applicants contended that
the third respondent lost the right to oppose the application
on a
variety of grounds including
inter
alia
,
that it had filed its answering affidavit out of time without an
application for condonation. Other than this issue, the applicants
had further alleged that the deponent to the answering affidavit, DN
van der Westhuizen had committed perjury in that he had denied
being
properly served with documents pertaining to the review application,
and further that he had made misrepresentation to this
court
[3]
The
third respondent on the other hand raised a similar point in regards
to the applicants’ replying affidavit, and further
lamented the
fact that the applicants had not attended to the pagination and
indexing of documents prior to the hearing.
[4]
The
Notice of Motion and the founding affidavit to the review application
were filed and served on the third respondent on 5 August
2011. The
third respondent’s attorneys of record, Louw Pienaar Attorneys
(LPA) had on 12 August 2011, filed a notice of opposition.
[5]
The
CCMA had filed its Rule 7A (3) compliance on 12 August 2011, in terms
of which the record of proceedings was dispatched to the
Registrar of
this Court. Notwithstanding the LPA being on record, the applicants
had filed a notice to stand by the notice of motion
dated 30 November
2011 on 8 December 2011, together with the transcribed record on the
third respondent.
[6]
On
24 January 2013, LPA had sent correspondence to the applicants,
noting that since its notice of opposition was filed, no further
pleadings were filed in prosecution of the review application. The
applicants were further informed that having inspected the Court’s
file, it was noticed that a Rule 7A (8) (b) notice and annexures were
served on the Registrar on 30 December 2011 but that there
was no
such service on the attorneys. The applicants were accordingly
implored to serve the notice on the attorneys in order for
them to
act.
[7]
The
applicants did not respond to the above correspondence. An answering
affidavit to the review application was nevertheless filed
and served
on 21 February 2013. This was followed upon by the applicants’
replying affidavit on 1 March 2013, wherein the
issue of condonation
was raised.
[8]
The
third respondent’s contention was that in the notice of
opposition, the address (LPA’s) at which it would receive
all
further notices and processes in the matter was expressly recorded,
and it was further indicated that the answering affidavit
in terms of
Rule 7A (9) would be delivered after the receipt of the notice of
amendment or notice that the applicants stood by
its notice of
motion. Notwithstanding this recordal, 17 months went by with without
the attorneys receiving any documents.
[9]
It
was further submitted on behalf of the third respondent that
notwithstanding the fact that LPA was on record since 11 August
2011,
the applicants’ Mr. Zwane had nevertheless delivered the Rule
7A (8) (b) notice directly on the third respondent on
1 February
2012. The applicants’ replying affidavit filed on 1 March 2013
was further deemed to be out of time by 13 days
(between 4 February
2013 and 1 March 2013), and it was pointed out that no application
for condonation had been filed in that regard.
[10]
The
applicants submitted that the transcribed record was delivered by
hand to the third respondent on 8 December 2011, with a notice
advising that it stood by its notice of motion. They had done so
being fully aware that the third respondent had appointed LPA,
but
that service was nevertheless accepted with the understanding that
the documents would be forwarded to LPA. The record was
again
delivered to the third respondent on 1 February 2012 which was again
accepted and accordingly, service of all documentation
pertinent to
the review application was delivered in accordance with Rule 4 (1)
(a) read with sub-rule (2) (c). Despite this service,
the third
respondent had only filed its answering affidavit some 358 days late
and had not filed an application for condonation.
Evaluation:
[11]
Rule
7(2) of the Rules of this Court require a notice of application to
substantially comply with Form 4 and must be signed by the
party
bringing the application. The application must be delivered and must
contain the following information-
(a)
the
title of the matter;
(b)
the
case number assigned to the matter by the registrar;
(c)
the
relief sought;
(d)
an
address of the party delivering the document at which that party will
accept notices and service of all documents in the proceedings.
[12]
In
terms of Rule 7 (4), (c) a notice of opposition and an answering
affidavit must respectively contain, with the changes required
by the
context, the same information required by sub-rules (2) and (3).
[13]
In
terms of Rule 7A (9), any person wishing to oppose the granting of
the order prayed in the notice of motion must, within 10 days
after
receipt of the notice of amendment or notice that the applicant
stands by its notice of motion, deliver an affidavit in answer
to the
allegations made by the applicant.
[14]
A
variety of issues arise in this application. The first is that it is
trite that once attorneys are on record as it had happened
in this
case with the notice of opposition filed on 12 August 2011, for the
purposes of compliance with the provisions of Rule
7 (2), all
subsequent documentation should be served on those attorneys.
[15]
For
the purposes of service in terms of Rule 7, and where attorneys are
on record, the provisions of Rule 4 (1) (a) read with those
of Rule 4
(2) (c) are not pertinent, in that service must be effected on those
attorneys. There can therefore not be proper service
on a party if
the serving party simply ignores the method of service the other
party had preferred. To this end, it is not sufficient
for the
applicants in this case to merely allege that such service was
willingly accepted by the third respondent, and that there
was
therefore compliance with the rules pertaining to service. In the
light of this conclusion, there is no merit in the applicant’s
contention that van der Westhuizen or the third respondent made a
misrepresentation to this court, in that it was correct that
the
applicants had not effected service of further documents in terms of
Rule 7 after the notice of opposition was served on them.
[16]
A
further difficulty with this application is that having improperly
served the notice to stand by the notice of motion and the
transcribed record on the third respondent instead of on LPA, no
action was taken on the matter, including after the third applicant’s
attorneys of record’s correspondence of 24 January 2013. Only
after the answering affidavit was filed on 21 February 2013
were the
applicants prompted into action with the filing of the replying
affidavit.
[17]
In
the light of the background as above and further having considered
the provisions of Rule 7 and 7A, it is my view that the third
respondent’s failure to timeously file an answering affidavit
was as a direct result of the applicant’s unreasonable
service
of documents directly on the third respondent despite LPA being on
record. There is nothing to gainsay the third respondent’s
attorneys’ contention that they could only have filed an
answering affidavit after having inspected the court’s file
on
23 January 2013. To the extent that they had immediately done so, it
is my view that it would be iniquitous to bar the third
respondent
from opposing the matter, let alone require it to seek condonation.
[18]
The
applicants have further not sought condonation for the late filing of
the replying affidavit. It is appreciated that the delay
in that
regards was not significant and in the light of the protracted
history of this matter, and further having had regard to
considerations of expediency, no purpose will be served in further
postponing the matter in order for the applicants to file a
condonation application.
[19]
I
further do not deem it necessary to deal with the third respondent’s
contentions that despite written and repeated notification
to the
applicants of the need to re-index and repaginate the review papers
in compliance with this Court’s Practice manual,
they had
failed to do so. Non-observations in this regard with the provisions
of clause 10.5 of the Practice Manual should be condoned.
In regards
to the issue of the incomplete record as raised by the third
respondent, clause 11.2.6 of the Practice Manual provides
that;
“
Parties
are reminded that Rule 7A (5) requires an applicant in a review
application to copy and deliver only those portions of a
record that
are necessary for the purposes of the review. The filing of
unnecessary portions of a record is a factor that may be
taken into
account for the purposes of any order of cost”
[20]
In
the light of the above provisions, and further to the extent that the
third respondent had not indicated which portions of the
record that
are missing had disadvantaged it in opposing the main application, it
is concluded that there is a proper record before
the court to enable
it to deal with the review application.
The
review application:
[21]
The
above preliminary points having been disposed of, it is my view that
no purpose will be served in postponing the matter any
further for
further oral submissions to be made in regards to the merits of the
review application. The court is satisfied that
based on the record
of proceedings, the parties’ pleadings and written heads of
argument, it is in the position to deal with
merits of the review
application.
Background:
[22]
Van
Donder was in the employ of the third respondent with effect from
August 2006. He held the position of Excavator Operator when
he was
dismissed by the third respondent on 15 June 2010 following a
disciplinary enquiry into allegations of misconduct pertaining
to;
(i)
“
Failure
to comply with a lawful instruction;
(ii)
Fraud
or forgery, or attempts of forgery, of any nature. Guilty of
corruption or acceptance of a bribe
(iii)
Any
conduct affecting the employer/employee relationship detrimentally
”
(Sic)
The
above allegations related to Van Donder allegedly having refused to
work three hours per day despite instructions to that effect;
alleged
attempted fraud in that he had booked himself on duty for 9 hours per
day whilst he had in fact refused to do any work,
and claims in
regards to sick leave.
The
arbitration proceedings:
[23]
A
dispute referred to the CCMA came before the Commissioner for
arbitration. Evidence was presented on behalf of the third respondent
by its Site Agent, Arend von Wielligh Treurnicht. His evidence as
summarised by the Commissioner was that Van Donder had previously
sustained an eye injury and had taken leave for about eight months.
As a result of his injury, the third respondent had decided
that Van
Donder should work a maximum of three hours with full pay for a full
shift pending a further medical assessment.
[24]
On
3 May 2010, Van Donder had raised some dissatisfaction with his
working hours with Treurnicht. Van Donder was informed by him
that if
he refused to work the stipulated hours he would not be remunerated.
On the same date, an accident occurred on site resulting
in damage
being caused to an excavator. When Treurnicht enquired about the
whereabouts of Van Donder, it was discovered that he
had went back to
his room (living quarters on site).
[25]
Following
the accident, Van Donder had refused to report for work and stayed in
his room. Notwithstanding the fact that he had failed
to report for
duty, Van Donder had submitted daily time sheets in which he had
claimed that he had worked 9 hours between April
and May 2010.
Treurnicht had nevertheless refused to authorise payment based on the
time sheets, as Van Donder had not reported
for duty.
[26]
Van
Donder’s testimony during the arbitration proceedings was to
confirm that having returned from paid sick leave, there
was an
agreement that he would only work for three hours per shift. Despite
this agreement, Treurnicht had refused to work with
him or to
allocate any work to him. He had made attempts to raise the matter
with Treurnicht without success.
[27]
Van
Donder further confirmed that he had claimed nine hours in his time
sheets because his contract of employment required him to
work nine
hours per shift. He had denied having stayed in his room instead of
reporting for duty after the accident on site and
testified that it
was common for employees to be paid their salary even if they had not
tendered their services.
The
award:
[28]
In
his award, the Commissioner had found that Van Donder had not
rendered any services after 3 May 2010. Van Donder had made a false
representation by submitting time sheets for the full nine hours when
he did not perform any duties in April and May 2010. The
Commissioner
concluded that Van Donder had accordingly committed fraud, and that
the misconduct was serious as it went to the core
of the employment
trust relationship. The Commissioner further found that Van Donder’s
conduct amounted to dishonesty.
Grounds
for review:
[29]
As
per the founding affidavit, the applicant’s ground of review
appears to relate to the fact that the Commissioner had afforded
the
third respondent the right to legal representation. Further grounds
of review related to the Commissioner allegedly having
committed
misconduct, ‘poor and negligent performance’; and
exceeding his powers.
[30]
The
basis upon which this Court can intervene with a Commissioner’s
award as per the test enunciated in
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[1]
is to pose the question whether the decision made by a Commissioner
is so unreasonable that no reasonable decision-maker could
come to
that decision. In answering this question, the conduct of the
Commissioner is assessed, in addition to determining whether
there is
a basis to conclude that the Commissioner failed to apply his or her
mind to issues which are material to the determination
of the case.
Furthermore, it is determined whether the commissioner misconceived
the true nature of the enquiry, or whether the
commissioner’s
conduct resulted in an unreasonable outcome
[2]
.
[31]
In
regards to the issue of legal representation, the Commissioner in the
light of the application before him had taken into account
that the
third respondent’s Human Resources Manager who had dealt with
the matter internally and all the other witnesses
relevant to the
case had since left its employ, and that the only witness available
to deal with the matter was a lay person, who
could also not act as
its representative. The Commissioner took into account the comparable
abilities of the representatives and
then concluded that legal
representation should be allowed. Significantly, the Commissioner
also offered to adjourn the proceedings
in order for the applicants,
who were represented by Mr Zwane, to seek legal representation. This
offer was not taken despite Mr.
Zwane expressing his dissatisfaction
with the ruling.
[32]
Rule
25(1)(c) of the CCMA Rules provides that;
‘
If the
dispute being arbitrated is about the fairness of a dismissal and a
party has alleged that the reason for the dismissal relates
to the
employee’s conduct or capacity, the parties, despite subrule
1(b) are not entitled to be represented by a legal practitioner
in
the proceedings unless –
1) the commissioner and all the other
parties consent;
2) the commissioner concludes that it
is unreasonable to expect a party to deal with the dispute without
legal representation, after
considering –
(a) the nature of the questions of law
raised by the dispute;
(b) the complexity of the dispute;
(c) the public interest; and
(d) the comparative
ability of the opposing parties or their representatives to deal with
the dispute.’
[33]
In
CCMA
v Law Society, Northern Provinces
[3]
,
the Supreme Court of Appeal in endorsing the constitutionality of
Rule 25 (1) (c ) held that;
“…
.The
subrule indeed allows the commissioner considerable latitude in
allowing legal representation. It may be allowed where the
commissioner and all the parties agree. In addition, the commissioner
may allow it in exercising his or her discretion when he
or she
considers that it is ‘unreasonable to expect a party to deal
with the dispute without legal representation’
after
consideration of the listed factors….”
[4]
[34]
The
applicants’ contention in regards to the Commissioner’s
ruling in regards to legal representation was that in looking
at the
comparative abilities of the parties’ representatives, he had
not made an enquiry into the skills and experience of
the third
respondent, and in particular, its Mr. Treunicht.
[35]
The
applicant’s arguments in this regard are clearly misplaced.
When a Commissioner exercises his or her discretion based
on the
comparative abilities it can only be in reference to the comparative
abilities of the representatives of the parties at
the proceedings at
the time, and not those of any other persons. In this case, the
comparative abilities enquired into would have
been those of Mr.
Pienaar who had appeared on behalf of the employer, and those of Mr.
Zwane, who had appeared on behalf of Van
Donder.
[36]
I
am in agreement with the applicant’s contention that there is
no absolute right to legal representation in arbitration proceedings
where
a
party has alleged that the reason for the dismissal relates to the
employee’s conduct or capacity. Be that as it may, ultimately,
it is for the Commissioner to exercise his or her discretion in
allowing legal representation. Only in circumstances where it is
alleged that the discretion was not properly exercised or was
exercised in a capricious manner can there be cause to intervene
with
the Commissioner’s ruling.
[37]
In
this case, I did not understand the applicants’ case to be that
based on the comparative abilities of the parties’
representatives, Mr. Zwane, who had appeared on behalf of Van Donder
in both these and arbitration proceedings was at a disadvantage
comparatively. Furthermore, the Commissioner had afforded the
applicants an election to secure legal representation if they wished,
which offer was not taken. To this end, I am satisfied that upon a
consideration of the provisions of Rule 25 (1) (c) of the CCMA
Rules,
and in particular, the comparative abilities of Messrs Zwane and
Pienaar, the Commissioner properly exercised his discretion
in
allowing the applicant legal representation.
Findings
on the merits:
[38]
In
the applicants’ written arguments, reference was made to the
Commissioner having acted ‘grossly irregular on the
grounds of
having allowed and being influenced by hearsay evidence’. This
was in relation to the allegation that the Commissioner
had relied on
the evidence led at the internal disciplinary enquiry.
[39]
There
is no merit in this contention in the light of the evidence proffered
by Van Donder himself. On his own version he did not
do any work as
he was not instructed to do any
[5]
.
Furthermore, in claiming the hours he had not worked, he had relied
on his contract
[6]
. The
Commissioner had upon a consideration of the evidence before him,
concluded that Van Donder’s evidence to the effect
that he had
submitted the time sheets stating that he worked 9 hour shifts in
April and May as his contract of employment required
him to work
those hours was preposterous. He had found that Van Donder had not
worked the full shifts or the three hours agreed
upon when he
returned from sick leave.
[40]
The
essence of this finding was that Van Donder could not have claimed
the full 9 hour shifts as per his time sheets as he had not
worked
the full hours or the three hours agreed upon, and this according to
the Commissioner formed the basis of the conclusion
that Van Donder
had committed fraud and had acted dishonestly. In the light of this
reasoning on the common cause facts, I fail
to appreciate how it can
be said that the conclusions reached by the Commissioner were
unreasonable.
[41]
Contrary
to the applicants’ contentions, it cannot be said that the
Commissioner failed to apply his mind to the full facts
of the case,
or misconceived the nature of the enquiry in relations to the
material before him. There is no basis therefore to
conclude that the
Commissioner had relied on factors not placed before him in that
fraud, which in itself amounts to dishonesty
was one of the charges
preferred against Van Donder.
[42]
The
applicants complained that the Commissioner had failed to consider
Van Donder’s contract of employment in arriving at
the
conclusion that he had committed fraud. There was no need for the
Commissioner to consider the contract as a Van Donder, who
had placed
reliance on that contract had not produced in the arbitration
proceedings. The issue ultimately was whether Van Donder
had
committed misconduct or not in relation to the submission of the time
sheets. Once it was established that Van Donder was not
entitled to
claim for the full 9 hours on account of his absence from the
workplace, that would have been the end of the enquiry,
and little
significance was to be attached to the contract of employment in any
event.
[43]
I
have had regard to the record and noted that in the course of making
closing arguments, the Commissioner further with a view of
seeking
clarity on certain issues, not only engaged with the parties but also
went as far as asking Van Donder questions. It is
accepted that this
was indeed irregular on his part, but this in itself did not render
the ultimate outcome reached unreasonable.
[44]
To
conclude then, there is no basis for any finding to be made that the
Commissioner misconstrued the nature of the enquiry before
him or
failed to take any relevant material into account in reaching his
conclusions. Having concluded that the misconduct related
to fraud
and dishonesty had been proven, the Commissioner had further
considered the fact that the misconduct in question impacted
on the
trust relationship. I am satisfied that on the material placed before
the Commissioner, the award is unassailable, and no
basis has been
laid for a conclusion to be reached that the decision reached was not
that of a reasonable decision-maker. I have
further had regard to the
issue of costs, and in my view, considerations of law and fairness
militate against such an order. In
these circumstances, the following
order is made;
Order:
i.
The
preliminary points raised by the applicants are dismissed.
ii.
The
late filing of the replying affidavit in the review application is
condoned.
iii.
The
application to review and set aside the award issued by the second
respondent is dismissed.
iv.
There
is no order as to costs.
_________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicants:
Mr. B Zwane (NUM Official)
On
behalf of the Third Respondent: Mr JL Pienaar of Louw Pienaar
Attorneys
[1]
(2007) 28 ILJ 2405
(CC)
[2]
See
Herholdt
v Nedbank
[2013] 11 BLLR 1074
(SCA) and
Goldfields
Mining South Africa v CCMA & others
[2014] 1 BLLR 20 (LAC)
[3]
CCMA v Law
Society, Northern Provinces
(005/13)
[2013] ZASCA 118
[4]
At para [21]
[5]
P129 of the record
of proceedings
[6]
P130 of the record
of proceedings