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[2015] ZALCJHB 467
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Chemstof (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1445/12) [2015] ZALCJHB 467 (1 December 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no: JR 1445/12
In
the matter between:
CHEMSTOF
(PTY)
LTD
Applicant
and
THE
COMMISSION FOR CONCILIATION
MEDIATION AND
ARBITRATION
First
Respondent
COMMISSIONER
JACKSON
MTHUKWANE
N.O.
Second
Respondent
TANKIE
KUOANE &
SEVEN
OTHERS
Third to Ninth Respondents
Heard:
06 January 2015
Delivered:
01 December 2015
Summary:
Review of Ruling on Postponement
JUDGMENT
FOUCHE,
AJ
Introduction
[1]
The applicant is applying, for the second respondent's ruling
refusing the applicant’s postponement application on 3 May
2012
and the second respondent’s arbitration award dated 14 May
2012, issued under the auspices of the first respondent,
to be
reviewed and set aside in terms of section 158(1)(g) read with
section 145 of the Labour Relations Act,1995 (LRA).
[2]
The applicant also seeks the matter to be referred to the first
respondent for a fresh hearing before a different commissioner
than
the second respondent.
[3]
The application is opposed a by the third to ninth respondents.
I will refer to them as the employees.
[4]
The Employees applied for condonation for the late filing of their
answering affidavit, which was not opposed by the applicant.
Having considered the application for condonation and the criteria
generally applied to such applications I see no reason not to
grant
the application.
Facts
[5]
The employees were dismissed on charges of alleged gross misconduct
during strike action that took place from 10 July 2011 to
19 August
2011. The employees referred an unfair dismissal dispute to the
first respondent.
[6]
The matter was postponed on three previous occasions. Once
because the applicant’s representative had to give evidence
in
a criminal matter, on a second occasion when several employees were
joined in the matter, and on a third occasion when one of
the
applicant’s witnesses was not available. The matter was
set down again for arbitration 3 and 4 May 2012.
[7]
Mr Herman Breedt, the official of the applicant's employers'
organisation, acted on behalf of the applicant during the employees’
strike, an urgent application in the Labour Court that resulted in an
interdict, and the disciplinary proceedings against the employees.
He also deposed to the applicant’s founding affidavit in this
matter.
[8]
Breedt was instructed to represent the applicant at the arbitration
of the unfair dismissal dispute on 3 and 4 May 2012.
However,
Breedt, on 2 May 2012, suffered a back injury. Breedt attended
a physiotherapist who diagnosed the injury as an
“
injury to
a lumbar disc with nerve route entrapment
” which meant that
Breedt was “
unable to drive as the pressure on the nerve
would cause a paralysis
”. Breedt was referred for an
MRI scan to be done later in the afternoon of 2 May 2012.
[9]
On 2 May 2012, a letter from the applicant requesting a postponement
of the arbitration set down for 3 and 4 May 2012, due to
the injury
to Breedt, including the letter from physiotherapist and the
appointment for the MRI scan, was send to Mr Mfikoe, a
trade union
official representing the employees. Mfikoe refused to agree to a
postponement.
[10]
Mr Dlamini from the applicant contacted the first respondent
telephonically and sent an application for postponement to the
first
respondent on 2 May 2012. The application for postponement was
also served on the employees. The unsigned letter
from the
physiotherapist was attached to the application.
[11]
In the award the second respondent mentioned that a senior
commissioner of the first respondent informed the respondent
telephonically
on 2 May 2012 that the respondent should present a
properly completed medical certificate to the hearing on 2 May 2012.
The
respondent denies that it received a call from the said senior
commissioner.
[12]
The applicant was represented by Mr Philip Bezuidenhout, its Safety
Officer at the arbitration on 3 May 2012. The arbitration
was
scheduled to start at 9:00. It was not disputed that
Bezuidenhout did not possess the qualifications or experience to
represent the applicant in arbitration proceedings.
[13]
Bezuidenhout informed the second respondent that Breedt was
consulting a neurosurgeon. The second respondent contacted
Breedt telephonically. Breedt confirms that the second
respondent did not accept the letter from the physiotherapist, which
did not contain the practice number of the physiotherapist.
[14]
According to the second respondent he received an unsigned medical
certificate from the neurosurgeon per telefax from Breedt
at 12:29 on
3 May 2012.
[15]
According to Breedt he received two telephone calls from the second
respondent on 3 May 2012. The second call was to
inform Breedt
that the medical certificate from the neurosurgeon was unsigned.
[16]
Breedt also confirmed that he faxed or caused the unsigned medical
certificate from the neurosurgeon to be faxed to the second
respondent twice on 3 May 2012. According to the
relevant communication result or transmission reports the first
fax
was sent at 12:30 and the second at 12:36. The second fax
included the first page of what seems to be the report form
the
radiologists on a MRI scan that Breedt underwent.
[17]
Breedt further refers to a third telefax that was sent to the second
respondent containing a signed copy of the medical certificate,
which
seems to have been sent at 12:49. The second respondent did not
refer to this medical certificate in the award.
[18]
According to Breedt the third fax was sent to his offices and
thereafter faxed to the second respondent on 3 May 2012.
The second respondent did not mention the third fax in his award and
seems not to have been aware of the third fax.
[19]
The employees were represented by a trade union official on 3 May
2012. The employees’ representative did not challenge
the
reasons presented by the applicant for the postponement. He
did, however, request a cost order to cover the transport
cost of the
employees’ and their representative.
[20]
The second respondent refused the applicant’s application for
postponement. The arbitration carried on in the absence
of the
applicant and the second respondent found in favour of the employees,
granting them reinstatement and certain amounts constituting
back
pay.
Grounds of review
[21] It is the
applicant’s case that the award and the ruling are reviewable
on the following gournds:
i. the second respondent
committed a reviewable irregularity in that he misconstrued what was
required by failing to apply the appropriate
test for postponements;
ii. the second respondent
acted unreasonably in reaching a decision without taking all the
evidence and circumstances of the matter
into account;
iii. the second
respondent failed to take into account the prejudice that would be
suffered by the Applicant if postponement was
refused.
Analysis
[22]
Rulings on
applications for postponement can be reviewed by the Labour Court
under section 145, on the basis that such rulings form
part of the
exercise of commissioners’ functions on arbitration. It
is not necessary to resort to section 158(1)(g).
[1]
[23]
The test to
be applied in dealing with applications for review was formulated in
Sidumo and Another v Rustenburg Platinum Mines
Ltd and Others.
[2]
The test requires the review court to ask the question: “
Is
the decision reached by the commissioner one that a reasonable
decision maker could not reach?
”
[24]
The Sidumo
reasonableness test has not replaced the specific grounds for review
permitted under s. 145(2) of the LRA.
The specific grounds
provided for in s. 145(2) of the LRA are suffused with the
constitutional standard of reasonableness.
[3]
In matters where the grounds for review include any of the grounds
listed in s. 145(2) of the LRA, such as the present
matter, it
is appropriate to first consider those grounds and then apply the
reasonableness test
.
[4]
[25]
During the arbitration proceedings the employees did not take issue
with either Breedt’s injury or the unsigned medical
certificate
from the neurosurgeon. The employees also did not seriously
oppose the application for a postponement.
The employees’
opposition to the application for postponement was focussed on
obtaining a cost award against the applicant
for the postponement.
[26]
It was not in dispute that Bezuidenhout was not in a position to
continue with the arbitration. He was a lay person and
had no
documents and no witnesses at the hearing. The record of the
proceedings confirms that in the end Bezuidenhout decided
to
participate in the arbitration only as an observer.
[27]
The aspects that weighed the most to the second respondent were: the
fact that the medical certificate from the neurosurgeon
was unsigned,
the matter had been postponed three times previously, and the
employees’ right to have their unfair dismissal
dispute
speedily resolved. The record of the arbitration proceedings
also confirm that the second respondent regarded the
multiple
applications for postponement as almost constituting an abuse of the
process.
[28]
In respect of the medical certificate the second respondent regarded
the provisions of
s.23
of the
Basic Conditions of Employment Act,
1997
, as the standard that the applicant had to meet. Relying
on the decision in
Mgobhozi v Naidoo & Others
(2006) 27
ILJ 786 (LAC) the second respondent found that the applicant did not
submit credible evidence to support the application
for postponement.
[29]
In coming to his conclusions the second respondent lost sight of the
general principles applicable to postponement applications
and the
fact that the application for postponement was brought on an urgent
basis.
[30]
In the
Carephone
matter the Labour Appeal Court summarised the
approach to postponement applications as follows:
“
In a court of
law the granting of an application for postponement is not a matter
of right. It is an indulgence granted by the court
to a litigant in
the exercise of a judicial discretion. What is normally required is a
reasonable explanation for the need to postpone
and the capability of
an appropriate costs order to nullify the opposing party's prejudice
or potential prejudice.
”
[5]
[31]
Ms Pillay presented compelling arguments on behalf of the employees
emphasising the weaknesses in the evidence that the applicant
presented in support of the reasons for the postponement. She also
argued that the second respondent’s approach to the
postponement
application was the correct one, relying on the
following passage in the
Carephone
judgement:
“
The first is
that arbitration proceedings must be structured to deal with a
dispute fairly and quickly
(section
138(1))
.
Secondly, it must be done with "the minimum of legal
formalities" (
section
138(1))
.
And thirdly, the possibility of making costs orders to counter
prejudice in good faith postponement applications is severely
restricted
(section
138(10))
.
”
[6]
[32]
The facts in this matter are, however, distinguishable from the facts
in the
Carephone
matter. In the
Carephone
mater
the employer had five days to arrange alternative representation and
failed to explain what steps were taken during that
time period, the
employer enjoyed legal representation, the employer was granted two
adjournments/postponements to make alternative
arrangements.
The court was further satisfied that the commissioner properly
weighed up the prejudice that the employer would
suffer from a
refusal of the postponement.
[33]
The facts in this matter more closely resembles those in
Erasmus
NO v Commission for Conciliation Mediation & Arbitration&
others
(2012) 33
ILJ
1670 (LC). The employer party’s
main witness was hospitalised on the day prior to the hearing of the
matter. The
commissioner refused the application for
postponement for reasons that included the lack of proof of
hospitalisation.
[34]
The
Labour Court approached the matter on the basis that the application
for postponement was brought on an urgent basis.
In terms of
rule 31(8)
of the Rules of the second respondent
the
commissioner in an urgent application may dispense with the
requirements of
Rule 31
if good cause exists, and may grant an order
against a party that has had reasonable notice of the application.
Further relevant
considerations are the prejudice that the
respondent would suffer should the application for the postponement
be heard on an urgent
basis or that the applicant would suffer should
it not be heard.
[7]
[35]
The Labour Court summarised the approach to postponement applications
as follows:
“
[61] The
considerations that are relevant in deciding whether or not to grant
a postponement are as follows:
61.1 The Commissioner
has a discretion whether an application for postponement should be
granted or refused.
61.2 The discretion
must be exercised judicially and for substantial reasons and should
not be exercised capriciously or on any
wrong principle.
61.3 The
CCMA/Commissioner must reach a decision after properly directing
its/his/her attention to all the relevant facts and principles
including . . . good cause for a postponement . . . The said factors
are not individually decisive and the weight to be attached
to each
factor is within the CCMA/Commissioner's discretion.
61.4 An application
must be made timeously or as soon as the circumstances, which may
justify an application, become known to the
applicant. In cases where
fundamental fairness and justice justify a postponement, the
CCMA/Commissioner may in appropriate cases
allow a postponement even
though the application was not timeously made.
61.5 The application
for postponement must always be bona fide and not used simply as a
tactical manoeuvre for the purpose of obtaining
an advantage to which
the applicant is not legitimately entitled.
61.6 Where a
postponement will cause prejudice to the adversary of the applicant
for a postponement, it must be considered whether
this can fairly be
compensated by an appropriate order of costs or any ancillary
mechanisms
.”
[8]
[36]
The
Labour Court found that the commissioner had failed to exercise his
discretion judicially and set aside the award.
[37]
It is not in dispute that Breedt informed the second respondent that
the medical certificate was being signed by the neurosurgeon
and that
it would be faxed within minutes after the telephone discussion
between the second respondent and Breedt. It is
also not in
dispute that a signed medical certificate was faxed to the same
number as the number of which the second respondent
earlier on 3 May
2012 received the previous faxes.
[38]
In these circumstances there was no need for the second respondent to
act with the haste with which he did. The second
respondent was
aware that Breedt intended to provide him with a signed medical
certificate.
[39]
The matter was set down for 2 days and there was nothing preventing
the second respondent from standing the matter down to
4 May 2012 in
order to provide Breedt with an opportunity to present a signed
medical certificate.
[40]
It was not appropriate for the second respondent to rely on the
statement from
Mgobhozi v Naidoo & Others
(2006) 27 ILJ
786 (LAC) quoted in paragraph 8 of the award, in circumstances where
the postponement application was being brought
on an urgent basis.
If it was the second respondent’s intention to hold Breedt to
the standards set out in
Mgobhozi v Naidoo & Others
(2006)
27 ILJ 786 (LAC), he should have given Breedt a reasonable chance to
submit the signed medical certificate.
[41]
The second respondent’s suspicion of the validity of the
medical certificates submitted by Breedt may well have been
proven to
be with some merit had the second respondent acted with more patience
in pursuing the issue.
[42]
The second respondent’s haste to make a ruling on postponement
application also has to be considered within the context
of the
second respondent failing to consider the prejudice that the
applicant would suffer should the postponement application
be
refused.
[43]
The second respondent appropriately considered the employees’
right to have their disputes resolved speedily. This should
have been
weighed up against the prejudice that the applicant would suffer if
the postponement application was refused. The second
respondent
failed to do so.
[44]
The second respondent also failed to consider whether any prejudice
to the employees could be cured by an order for costs.
The
employees indicated to the second respondent that postponement of the
matter would be acceptable to them provided the second
respondent
made an appropriate order as to costs.
[45] In this regard the
approach of Van Niekerk AJ (as he then was) in
Fundi
Projects & Distributors (Pty) Ltd v Commission for Conciliation,
Mediation & Arbitration & others
(2006)
27 ILJ 1136 (LC), is instructive. Relying on the general
principles applicable to applications for postponement as
set out in
Insurance & Banking Staff
Association & others v SA Mutual Life Assurance Society
(2000)
21 ILJ 386 (LC), Van Niekerk AJ came to the following conclusion:
“
There is no
evidence that the commissioner properly exercised her discretion, and
in particular that she properly weighed the prejudice
that might have
been caused to the applicant and third respondent respectively had
she granted the postponement. Had the commissioner
done so, she might
have considered whether any prejudice to the third respondent
could be compensated by an order for costs
on an appropriate scale.
On this basis, any financial prejudice to the third respondent (and
to the CCMA and thereby the taxpayer)
might have been cured, and the
policy related concerns expressed by the commissioner met. Had she
weighed the respective prejudice
to the parties, the
commissioner may well have concluded that the prejudice to the
applicant was significant - it was effectively
deprived of presenting
its case for consideration prior to any award being made.”
[9]
[46]
The second respondent acted unreasonably and committed gross
irregularities by:
i. making the ruling on
the postponement application in circumstances where the second
respondent had failed to properly consider
Breedt’s undertaking
to fax a signed medical certificate and had failed to provide Breedt
with a reasonable opportunity to
submit signed medical certificate;
and
ii. failing to weigh up
the prejudice to the employees against the prejudice that the
applicant would suffer if the postponement
application was refused
and failing to consider whether any prejudice to the employees could
be cured by an order for costs.
[47]
The applicant did not ask for an order as to costs save in the event
that any of the respondents unsuccessfully oppose the
review
application. When considering the appropriateness of a cost
order Breedt’s conduct cannot be ignored.
[48]
Breedt has a right of appearance in proceedings conducted under the
auspices of the first respondent by virtue of being an
official of an
Employers’ Association. There is no reason why his conduct
should not be held to high standards.
[49]
There is no doubt in my mind that Breedt’s conduct on 2 and 3
May 2012, fell short of such standards. His lack of attention
to
detail, specifically ensuring that medical certificates were signed
by the medical practitioners and contained appropriate information
on
which the second respondent could rely, such as a practice number,
created the impression that Breedt regarded a postponement
as a
matter of right and not a privilege or indulgence to be granted at
the discretion of the second respondent.
[50]
Breedt was acting as the applicant’s agent and as such the
applicant must suffer the consequences of Breedt’s conduct.
Breedt could have done more at an earlier stage to ensure that second
respondent was in possession of an appropriate medical certificate.
The applicant, having been at least partially the author of its own
misfortune is thus not entitled to a cost order.
Order
[51]
I therefore make the following order:
1. The third to ninth
respondents’ application for condonation for the late filing of
their answering affidavit is granted.
2. The postponement
ruling of the second respondent under case number GATW11840/11 is
reviewed and set aside.
3. The default
arbitration award of the second respondent under case number
GATW11840/11 is reviewed and set aside.
4. The matter is remitted
to the Commissioner for Conciliation Mediation and Arbitration for
arbitration before a commissioner other
than the second respondent.
____________
FOUCHE
AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Mr C P J Strydom
Instructed by GP Prinsloo
Attorney
For
the Respondents: Ms L
Pillay
Instructed by M S
Molebaloa Attorneys
[1]
Carephone
(Pty)
Ltd v Marcus NO & others
[1998]
11 BLLR 1093
(LAC), at para 24
[2]
(2007) 28
ILJ
2405
(CC), at para 110
[3]
Herholdt
v Nedbank Ltd
(2013)
34
ILJ
2795
(SCA) at para 14;
Fidelity
Cash Management Service v CCMA and Others
(2008)
29
ILJ
964
(LAC) at para 101
[4]
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
(2014)
35
ILJ
943
(LAC) at para 15
[5]
Carephone
,
supra, at para 54
[6]
Carephone
,
supra, at para 55
[7]
Erasmus
NO v Commission for Conciliation Mediation & Arbitration&
others
,
supra, at para 60
[8]
Erasmus
NO v Commission for Conciliation Mediation & Arbitration&
others
,
supra, at para 61
[9]
Fundi
Projects & Distributors (Pty) Ltd v Commission for Conciliation,
Mediation & Arbitration & others
(2006)
27 ILJ 1136 (LC), at par 12