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[2015] ZALCJHB 376
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African Meter Reading (Pty) Ltd v Solidarity obo Muller and Others (JR2064/12) [2015] ZALCJHB 376 (23 October 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Case
no:
JR2064/12
In
the matter between:
AFRICAN
METER READING (PTY)
LTD Applicant
and
SOLIDARITY
ON BEHALF OF MULLER
AND
1
OTHER First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
Second
Respondent
GREYLING,
P N.O.
Third
Respondent
Heard:
10 July 2015
Delivered:
23 October 2015
Summary:
Review of a rescission ruling of the Commissioner.
JUDGMENT
COOK
AJ;
Introduction
[1]
The
Applicant seeks to review the rescission ruling of the Commissioner,
under case number NWKD3384/12(“the ruling”),
and that the
natter be remitted to the CCMA for a hearing before another
Commissioner other than the Third Respondent.
Background
[2]
The
arbitration was set down for 19 April 2012 at CCMA Klerksdorp. The
Applicant’s representative failed to attend the arbitration.
[3]
On
9 May 2012, the Applicant filed a rescission application of the
default award. The rescission application was unopposed. The
Commissioner dismissed the rescission application.
[4]
The
Commissioner found:
‘
14.
It is common cause that the Applicant was fully aware of the date of
the proceedings. The fact
that he was absent and failed to notify
anybody of his absence was entirely of his own making. The Applicant
also failed to provide
any reasonable prospects of success.’
[1]
[5]
The
Applicant filed a further rescission application on 26 June 2012. A
ruling on 27 July 2012 stating
‘
That
the nature of the ruling is one of finality. That means that the
final word has been said by the Commissioner regarding this
matter.
If the Applicant is still not satisfied with the ruling of the
Commissioner, the Applicant is obliged to take the ruling
of the
Commissioner on review in the Labour Court.”
[2]
Case
law
[6]
In
Herholdt
v Nedbank Limited, (Congress of South African Trade Unions as Amicus
Curiae),
[3]
the
SCA described the standard of review as follows:
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in section 145(2)(a) of
the LRA. For a defect in the conduct of the proceedings to
amount to
a gross irregularity as contemplated by section 145(2)(a)(ii), the
arbitrator must have misconceived the nature of the
inquiry or
arrived at an unreasonable result. A result will only be unreasonable
if it is one that a reasonable arbitrator could
not reach on all the
material that was before the arbitrator. Material errors of fact, as
well as the weight and relevance to be
attached to particular facts,
are not in and of themselves sufficient for an award to be set aside,
but are only of any consequence
if their effect is to render the
outcome unreasonable.’
[7]
In
Chetty
v Law Society, Transvaal
,
[4]
the
court, in considering when there ought to be a rescission of a
judgment, stated the following two requirements:
‘
(i)
that the party seeking relief must present a reasonable and
acceptable explanation
for his default; and
(ii)
that on the merits such a party has a bona fide defence, which, prima
facie, carries
some prospect of success.’
[8]
In
Foschini
Group (Pty) Limited v Commission for Conciliation, Mediation and
Arbitration and Others
:
[5]
‘
To
establish that there is a reasonable probability of success on the
merits, it suffices if an applicant shows a prima facie case
in the
sense of setting out averments which, if established at the
proceedings, would entitle the party to the relief asked for.
An
applicant need not necessarily deal fully with the merits of the
case.’
Analysis
[9]
In
terms of the award, it was held that:
‘
11.
It is admitted by the Applicant that the Applicant was fully aware of
the arbitration and notice
of set down and when it would take place.
The Applicant’s explanation was that Mr Sono was ill. Mr Sono
did not provide any
evidence as to what attempts have been made to
apply for a postponement. After all Mr Sono knew on 18 April 2012, a
day before
the proceedings that he was not going to attend the
proceedings. The Respondent’s representatives’
particulars as well
as the CCMA particulars were available to him.
Yet, Mr Sono made no attempt to notify any party to the proceedings
of the possibility
that he might not be able to attend or that he had
no intention to attend. Mr Sono also made no attempt to ask his local
office
to send somebody with the necessary particulars of his illness
and to apply for such postponement.’
[10]
In
the founding affidavit, the deponent Sono sates:
‘
16.
As the Applicant I could not notify the CCMA of my predicament let
alone my employer as I was
in bed for the whole day. I only realised
on the 19
th
of April 2012 that I was not going to be able to make it for the CCMA
than earlier thought. I suspect that the medication that
I took made
me dizzy and when I woke up the following day I was still not well.
17.
I am the only person that deals with all the deputes (sic) or CCMA
matters and no-one at
work knew that the CCMA case was set down for
this day hence not even a single person from the company made the
call to the CCMA.
18.
On 20 May 2012 I called the CCMA on 0861 161616 explained what
happened and after requesting
my case number I was then advised to
await the ruling of the Commissioner and apply for rescission
thereafter.’
[11]
In
the answering affidavit, the following is stated:
‘
2.13
It is submitted that the Applicant could have informed the CCMA and
Solidarity of his illness. The Applicant
was well aware of his
illness on the 18
th
of April 2012. On or about the 18
th
of April 2012, the Applicant visited a medical practitioner and was
booked off from the 19
th
of April 2012. The Applicant was in possession of the notice of set
down and had the contact details of the CCMA of the CCMA and
Solidarity.
2.14
The Applicant failed to proof (sic) that he took all reasonable steps
to either attend the proceedings
or postpone the matter. The
Applicant further failed to arrange for a fellow colleague to attend
the proceedings and request a
postponement.”
[12]
The
Applicant’s representative, Mr Sono, had been present during
the conciliation proceedings. The Applicant and the First
Respondent
had exchanged communication before the arbitration proceedings, the
last communication having taken place on 8 March
2012.”
[6]
[13]
The
above tends to indicate that the Applicant had an intention to
participate in the arbitration and had a present held desire
to
oppose the relief sought by the First Respondent.
[14]
The
Applicant has provided a reasonable and acceptable explanation for
its default. In the circumstances, the non-attendance of
the
Applicant was not wilful. The reason given by Sono that he did not
apply for a postponement was that he only realised on the
morning of
the hearing that he was not going to be able to attend whilst the
previous day, he thought he was going to be able to
attend. Sono
further states that he suspects the medication that he took made him
dizzy and when he woke up the following day he
was still not well and
this is the explanation as to why he did not contact people on the
day. Furthermore, he explains that he
was the only person dealing
with the disputes and, therefore, no one else in his office knew
about the matter.
[15]
In
respect of the prospects of success, it is alleged that the fixed
term contracts which came to an end on 31 January 2011 were
then
replaced with a verbal contract for another period of 12 months and
that the employees were notified in writing on 0 November
2012 that
the fixed term contracts were not going to be renewed. This is a
prima
facie
defence,
which, if proved at the arbitration, could be a
bona
fide
defence to the employee’s unfair dismissal dispute.
[16]
The
Commissioner seems, in his reasoning, to wish to place the blame on
the Applicant for Sono not having made a postponement application
or
failing to notify the parties of his non-attendance. This enquiry
seems to ignore the fact that Sono was not in wilful default
but did
not attend due to illness. The effect of the refusal to rescind
the arbitration award is just because Sono was ill
and did not apply
for a postponement and/or notify the parties, that the Applicant’s
right to defend the matter has been
lost. The effect of the ruling
does not serve the interest of justice.
Conclusion
[17]
The
ruling is, accordingly, one that a reasonable commissioner could not
reach on all the material that was before the commissioner.
[18]
The
Court finds that the opposition to the review was not unreasonable in
the circumstances and, accordingly, the Court will not
order costs.
[19]
In
the circumstances, the Court makes the following order:
1.
The
rescission ruling is reviewed and set aside.
2.
The
matter is remitted to the CCMA for arbitration before another
Commissioner other than the Third Respondent.
3.
No
order as to costs.
____________
Cook
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES
For
the Applicant:
Advocate
P R Ndlele.
Instructed
by:
Mabu Letaba Attorneys Inc
For
the Respondent:
N Greef.
Instructed
by:
Solidarity.
[1]
Bundle
of Record at 38.
[2]
Bundle
of Record at 14
[3]
[2013]
11 BLLR 1074 (SCA)
[4]
1985 (2) SA 756
(A) 765B-C.
[5]
(2002) 23 ILJ 1048 (LC) at para 21.
[6]
First
Respondent’s heads of argument at 5.