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[2015] ZALCJHB 307
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Mahlangu v Commission for Conciliation, Mediation and Arbitration and Others (JR1679/13) [2015] ZALCJHB 307 (16 September 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR1679/13
In
the matter between:
SIZANO ADAM
MAHLANGU
Applicant
and
COMMISION FOR
CONCILIATION, MEDIATION AND
ARBITRATION
First Respondent
JOSEPH MPHAPHULI
N.O.
Second Respondent
SENTECH SOC LTD
Third Respondent
Delivered:
16 September 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
The
Applicant approached the Court in terms of section 158 (1) (g) of the
Labour Relations Act
[1]
(the
LRA) to seek an order reviewing and setting aside a rescission ruling
issued by the Second Respondent (Commissioner)
on 8 July 2013
under case number GAJB9724-13. In his ruling, the Commissioner had
dismissed the Applicant’s application for
rescission after his
referral was dismissed on account of having failed to attend con/arb
proceedings on 16 May 2013. The review
application is opposed.
Background:
[2]
The
Applicant was employed by the Third Respondent in the position of a
Construction Artisan until his contract of employment was
terminated
on 27 March 2013. He then, with the assistance of Communications
Workers Union, referred an alleged unfair dismissal
dispute to the
First Respondent (the CCMA). The dispute was set down for a con/arb
process on 16 May 2013. None of the parties
attended that process,
and Commissioner Motsoeneng issued a certificate of outcome
indicating that the dispute remained unresolved,
and had further
dismissed the matter.
[3]
The
Applicant, on his own, launched an application for rescission which
was considered by the Second Respondent (Commissioner) and
dismissed
in accordance with the ruling which is the subject matter of this
review application.
[4]
In
his application for rescission, the Applicant’s submissions
were essentially the following;
4.1
Upon receipt of the ruling he had contacted an official of his Union
to establish the reasons
his matter was dismissed. His reason for not
attending the con/arb hearing was that he was told by Alfred
Hlongwane of the Union
on 15 May 2012 that his case was to be
postponed as a result of an agreement reached between the parties.
4.2
In regards to the prospects of success, the Applicant averred that
his dismissal was procedurally
and substantively unfair in that at no
stage was he called to a disciplinary hearing before his dismissal.
Furthermore he stated
that he was dismissed on the basis that the
employer alleged that he could not drive a motor vehicle even when he
was in possession
of a valid driver’s license.
4.3
He was a lay person and therefore did not fully understand the rules
and regulations relating
to the postponement of proceedings and had
relied on the information provided by his Union which subsequently
turned out to have
misled him into not attending the hearing on the
set down date.
[5]
The
Commissioner in his ruling stated that if an application for a
postponement or an agreement to postpone was served in compliance
with the rules, that application or agreement would be considered by
another Commissioner. However the matter could only be deemed
to have
been postponed when a ruling to that effect had been issued. There
were no documents on file to prove that the application
for
postponement was made in compliance with the rules and that the
ruling to postpone the matter was made. What was merely before
the
Commissioner was that there was an application to postpone, which
application was made after the fact as it was served on the
CCMA on
30 May 2014, days after the matter was dismissed. Accordingly, the
Commissioner held that the application for rescission
did not meet
the requirements of section 144 of the Labour Relations Act in that
the dismissal ruling was not issued in error.
Grounds
of review:
[6]
The
Applicant’s grounds of review were as follows;
6.1
The
Commissioner ought to have set the matter down for a hearing before
simply determining the matter on the papers and dismissing
it;
6.2
Secondly
the finding by the Commissioner that the postponement application was
made after the fact indicated that the Commissioner
failed to apply
his mind to the material before him and thereby committed an
irregularity. In this regard, it was pointed out that
the
postponement application was dated and signed on 16 May 2013 by both
parties. Therefore the Commissioner was required in the
circumstances
to convene a hearing and afford the parties an opportunity to clarify
what was perceived to be at odds with the time
frames prescribed by
the CCMA Rules.
6.3
It
was further submitted that the Applicant had given a reasonable
explanation for his default in that he had indicated in this
application that the parties had agreed to a postponement of the
matter, hence neither party attended the hearing on 16 May 2013.
It
was further pointed out that the Third Respondent had not denied that
the parties had agreed to a postponement of the con/arb
proceedings.
6.4
It
was further submitted that the Commissioner erred in his ruling by
failing to take into account that the conciliating Commissioner
ought
to have convened the rescission hearing to enable the parties to
explain the default rather than relying on the fact that
there was no
ruling for a postponement.
6.5
The
Applicant further averred that his application for a rescission was
made in good faith in that his failure to attend the hearing
was
occasioned by the agreement between the parties to postpone the
scheduled hearing.
[7]
The
Third Respondent which had not initially opposed the rescission
application before the Commissioner nevertheless the opposed
this
review application on the following basis;
7.1
Rule 23 of the CCMA Rules governs the postponement of proceedings.
Thus proceedings can
only be postponed by agreement between the
parties or through an application to the CCMA for that postponement.
7.2
If the parties agreed to a postponement, that the agreement must be
in writing and must
be received by the CCMA seven days before the
date of the scheduled hearing. In this case, the parties agreed on 16
May 2013 to
postpone, and thus the agreement was not received by the
CCMA before the proceedings commenced.
7.3
There was no compliance with Rule 23 (2) of the CCMA Rules. The
Applicant had not brought
an application in terms of Rule 31 to
postpone the conciliation hearing set down for 16 May 2013. In the
absence of compliance
with Rule 23 (2) and (3) of the Rules, the CCMA
was therefore entitled to deal with the referral in terms of Rule 30
(1) (a) and
to dismiss the matter.
The
legal framework and evaluation:
[8]
The applications for rescission of awards and rulings are determined
in terms of section 144 of the LRA which provides that;
‘
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.’
[9]
Flowing from the decision in
Shoprite
Checkers (Pty) Ltd vs CCMA and others
[2]
,
it is now accepted that ‘good cause’ should be read into
the above provisions when considering rescission applications.
The test for good cause involves a consideration of at least two
factors. The first is whether there is an explanation for the
default, and secondly whether the applicant has a
prima
facie
defence. This Court in
Northern
Province Local Government Association v CCMA and Other
[3]
stated the approach in establishing good cause as follows:
“
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
bona
fide
defence to the plaintiff’s claims.”
[10]
In
MM
Steel Construction CC v Steel Engineering & Allied Workers Union
of SA and Others
[4]
,
it was held that while the absence of one of the two essential
elements would usually be fatal, they are not to be considered
mechanically and in isolation, but they are to be weighed together
with other relevant factors in determining whether it should
be fair
and just to grant the indulgence
[5]
.
[11]
Section 158 (1) (g) of the LRA under which this application was
brought, provides that subject to section 145, this Court may
review
the performance or purported performance of any function provided for
in the Act on any grounds permissible in law. To the
extent that the
Commissioner considered the application before him in terms of
section 144 of the LRA, section 145 of the LRA permits
the review of
an arbitration award where a defect in any arbitration proceedings is
alleged. A defect means that (a) the commissioner
committed
misconduct in relation to the duties of the commissioner as an
arbitrator; (b) committed a gross irregularity in the
conduct of
arbitration proceedings; or (c) exceeded the commissioner’s
powers.
[12]
In this case, the Applicant’s grounds of seeking to review the
Commissioner’s ruling was that the latter had committed
a gross
irregularity. In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[6]
,
it was held that;
“
Sidumo does
not postulate a test that requires a simple evaluation of the
evidence presented to the arbitrator and based on that
evaluation, a
determination of the reasonableness of the decision arrived at by the
arbitrator. The court in Sidumo was at pains
to state that
arbitration awards made under the Labour Relations Act (LRA) continue
to be determined in terms of s145 of the LRA
but that the
constitutional standard of reasonableness is “suffused”
in the application of s145 of the LRA. This implies
that an
application for review sought on the grounds of misconduct, gross
irregularity in the conduct of the arbitration proceedings,
and/or
excess of powers will not lead automatically to a setting aside of
the award if any of the above grounds are found to be
present. In
other words, in a case such as the present, where a gross
irregularity in the proceedings is alleged, the enquiry is
not
confined to whether the arbitrator misconceived the nature of the
proceedings, but extends to whether the result was unreasonable,
or
put another way, whether the decision that the arbitrator arrived at
is one that falls in a band of decisions to which a reasonable
decision-maker could come on the available material”
[7]
.
[13]
It is further accepted that like the courts, commissioners enjoy a
discretion whether or not to grant an application brought
under
section 144 (a) of the LRA
[8]
.
The exercise of this discretion obviously involves a consideration of
whether facts exist which makes the award or ruling to be
rescinded
on any ground under the provisions of section 144 of the LRA, and
whether the applicant had shown good cause as to why
he or she should
be entitled to an order of rescission. A failure to consider or
apply one’s mind to any of these relevant
factors by the
commissioner in his or her consideration of the rescission
application could make such a decision unreasonable or
defective as
envisage in s145 of the LRA. In
Martin
,
the appropriate approach in this regard was stated as follows;
“
A reasonable
decision maker in the present circumstances would apply the relevant
test- in other words the test referred to in
North
Training Trust
and affirmed by the Labour Appeal Court in
Shoprite
Checkers
.
This required her to establish that the notice of set down was sent
(which she did) and then determine whether the applicant’s
default was wilful, and whether she had reasonable prospects of
success in her claim. A commissioner’s decision cannot be
said
to be reasonable when the commissioner fails to consider all the
materially relevant factors prior to making that decision.”
[9]
[14]
In this case, it was common cause that the parties were properly
notified of the set-down date, and that both had not attended
those
proceedings. I further did not understand it from the Third
Respondent’s submissions to be that there was no agreement
between the parties to postpone those proceedings,
albeit
that
agreement only reached the CCMA after the date of the hearing.
[15]
It can further not be doubted that any postponement sought arising
from the agreement had not complied with the provisions
of Rule 23 of
the CCMA Rules in that the agreement in that regard was only
concluded on the date of the hearing, and had not been
brought to the
attention of the CCMA more than seven days prior to 16 May 2013.
Prima facie
, and on the strict interpretation of the
provisions of Rule 23 of the CCMA Rules, there was no proper
application for a postponement
before Commissioner Motsoeneng on 16
May 2013 when he dismissed the matter.
[16]
Having established that the provisions of Rule 23 of the CCMA had not
been complied with in seeking a postponement, the next
issue which
the Commissioner was required to establish was whether the
Applicant’s default was wilful. Thus the Commissioner
was
therefore required to determine whether the applicant had proffered a
reasonable explanation for his default, and whether his
explanation
was made
bona fide
.
[17]
One of the difficulties with the Commissioner’s ruling is that
he made a finding that the application for rescission
did not meet
the requirements of section 144 of the LRA on the basis that the
dismissal ruling was not issued in error. This in
my view implies
that other factors pertinent to whether the Applicant had shown good
cause were not considered at all in arriving
at that decision.
Nowhere in the ruling is it mentioned or determined whether the
Applicant’s default was wilful or not,
whether the explanation
for the default was proffered in good faith, whether he had any
prospects of success, or whether the Applicant
had evinced any
intention of not pursing his matter. These considerations were
indeed important, and by failing to address
them, the Commissioner
indeed committed a reviewable irregularity.
[18]
It is accepted that in terms of Rule 31 (10) of the CCMA Rules,
Commissioners may deal with applications identified under Rules
31
(1) in any manner that they deem fit. Reservations have been
expressed about allowing Commissioners latitude in this regard
as
this may infringe upon
audi
alteram partem
principles
[10]
.
Essentially, the concern is that it is simply not appropriate to just
deal with rescission applications on the documents filed,
and
fairness and the requirements of the principle of
audi
alteram partem
dictates that a hearing to determine the issue of rescission must be
convened, no matter what the Rules of the CCMA or bargaining
council
may provide as to conducting proceedings in a manner deemed
appropriate.
[19]
I share the concerns raised in
Satinsky
in regards to the
blanket approach in dealing with such applications. One acknowledges
the discretion Commissioners enjoys in terms
of the provisions of
Rule 31 (10) of the CCMA Rules when determining applications
identified under Rule 31 (1) of the Rules. At
the same time, one
cannot be prescriptive about how such applications should be dealt
with in view of the discretion enjoyed and
in my view, the decision
to convene a hearing should be considered in all applications
irrespective of whether they are opposed
or not. This is even more
apposite in the light of the standard application forms that are
completed by the applicant parties in
regard to these applications
and the limited information they can give in those forms.
[20]
Furthermore, it is appreciated that the discretion enjoyed under Rule
31 (10) also has the objective of achieving CCMA efficiencies
and
dealing with such applications as expeditiously as possible. It is
also appreciated that dealing with such applications on
the papers is
indeed convenient, less time consuming, inexpensive and also
dispenses with such applications expeditiously. However,
considerations of expediency and efficiencies cannot come at the
expense of fairness, which is the underlying principle governing
the
functions of the CCMA. Thus where the merits of an application
require that a hearing should be convened in order to enable
a
Commissioner to come to a reasonable and well considered decision, a
discretion in that regard should be exercised accordingly.
[21]
The facts before the Commissioner in this case appeared to be
straightforward when this was clearly not the case. Firstly,
the
application before him was unopposed, and there was nothing to
gainsay the Applicant's averments in regards to the reasons
for his
default or other factors pertaining to that application. In my view,
the Third Respondent had not opposed the application
in that it knew
that it had agreed to the postponement. For the Third Respondent to
suddenly oppose this review application is
not only opportunistic,
but also in bad faith in the light of its agreement to postpone the
con/arb proceedings.
[22]
Whilst the Commissioner’s findings that there was no proper
application for a postponement hence the matter was dismissed
cannot
be faulted, the matter however should not have ended there and the
next enquiry was whether there was wilful default. The
Commissioner
had not considered that factor, and before him was an explanation
that the Applicant had relied on his Union which
had informed him
that the matter was postponed by agreement between the parties. The
issue to be considered therefore was whether
that explanation was
reasonable, acceptable, plausible or
bona fide
. There was
nothing before the Commissioner to gainsay that explanation and if he
was not inclined to give the Applicant a benefit
of the doubt, this
would have been one of those instances where a hearing should have
been convened, more specifically since from
the standard application
before the Commissioner, it was apparent that the Applicant had filed
that application on his own and
had relied on the information of the
Union in not attending the proceedings on 16 May 2013. Furthermore,
the Commissioner had acknowledged
a copy of the agreement to postpone
before him,
albeit
this was filed after the hearing date. In
these circumstances, the Commissioner ought to have given the
Applicant a benefit of the
doubt.
[23]
In my view, in the light of the application not being opposed, and
further it being apparent that the Applicant had brought
it without
the assistance of the union, a reasonable decision maker would have
accepted the explanation as reasonable and made
bona fide
, and
a conclusion would have been that the Applicant’s default was
not wilful, as he had relied on the
bona fides
of the Union
and the Third Respondent that indeed the proceedings were postponed
by agreement.
[24]
A further aspect which the Commissioner failed to address in
establishing whether good cause had been shown pertained to whether
on the merits, he had prospects of success in regards to his claim of
unfair dismissal. It is trite that it is not necessary to
give
details of one’s claim in such applications, but that at most,
a
prima facie
case should be made out. Again, there was
nothing to gainsay the Applicant’s contentions that his
dismissal was procedurally
and substantively unfair, and to the
extent that the Commissioner failed to address this issue, the
conclusion to be reached is
that he indeed committed a reviewable
irregularity.
[25]
According to the Applicant, the dismissal ruling came to his
attention on 10 May June 2013. He had on the same date filed an
application for rescission, and there was nothing before the
Commissioner to suggest that the Applicant had no serious intention
of proceeding with his claim. In merely addressing the issue of
whether there was a proper application for a postponement, the
Commissioner in refusing to grant rescission, considered the relevant
factors mechanically and in isolation contrary to the principles
set
out in
MM Steel Construction CC v Steel Engineering & Allied
Workers Union of SA and Others
. To the extent that the
Commissioner failed to take into account all the other factors
pointed out above, it follows that his decision
cannot be said to
fall within a band of reasonableness, and accordingly out to be
reviewed and set aside.
[26]
I have further had regard to all the documentation and the record
placed before the Court, and no purpose will be served in
remitting
the matter back to the CCMA to be considered
de novo
. I have
further regard to considerations of law and fairness and I am of the
view that the Third Respondent’s conduct in
opposing this
application was blatantly opportunistic and in bad faith in the light
of its agreement to postpone the con/arb proceedings
scheduled for 16
May 2013 before the CCMA. To this end, it is appropriate that it
should be burdened with the costs of this application.
In the
circumstances, the following order is made;
Order:
i.
The
rescission ruling issued by the Second Respondent on 8 July 2013
under case number GAJB9724-13 is reviewed and set aside.
ii.
The
ruling is substituted with an order that;
“
The
application for rescission of a dismissal ruling issued on 16 May
2013 is granted’
iii.
The
First Respondent is ordered to set down the alleged unfair dismissal
dispute referred to it under case number GAJB9724-13 for
arbitration.
iv.
The
Third Respondent is ordered to pay the costs of this application.
________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
Mr D Majare of Mabaso
Attorneys
On
behalf of the Respondent:
Mr X Njokweni of Knowles Husain Lindsay INC
[1]
Act 66 of 1995 as
amended
[2]
(2007) 28 ILJ 2246
(LAC)
[3]
[2001] 5 BLLR 539
(LC) at para 16
[4]
(1994)
15 ILJ 1310 (LAC) at 1311J-1312A.
[5]
See
Grant
v Plumbers (Pty) Limited
1949(2) SA 470 20 (O) as referred to in
Edgars
Consolidated Stores Limited v Dinat and others
(2006)
27 ILJ 2356 (LC), where it was held that the following requirements
should be complied with in order to show good cause
viz;
“
(a)
An applicant must give a reasonable explanation of his default. If
it appears that his default was wilful, or that it was
due to gross
negligence, the Court should not come to his assistance.
(b)
The application was bona fide, and not made with the intention of
merely delaying plaintiff’s claim.
(c)
The applicant must show that he has a bona fide defence to the
plaintiff’s claim. It is sufficient if he makes out a
prima
facie defence in the sense of setting out averments which, if
established at the trial, would entitle him to the relief
asked for.
He need not deal fully with the merits of the case and produce
evidence that the probabilities are actually in his
favour.”
[6]
[2014] 1 BLLR 20
(LAC)
[7]
At para [14], in
reference to the review test set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] ZACC 22; 2008 (2) SA 24 (CC)
[8]
Martin v
Commission of Conciliation Mediation and Arbitration
(2008) 29 ILJ 2254 (LC)
[9]
At para [25]
[10]
See
Satinsky
128 (Pty) Ltd t/a Just Group Africa v Dispute Resolution Centre and
Others
(JR 1479/2012) [2013] ZALCJHB 38 (26 February 2013) at paragraphs
[4
5 to [47]