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[2015] ZALCCT 75
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Computer Storage Services Africa (Pty) Ltd v CCMA and Others (C734/2014) [2015] ZALCCT 75 (2 October 2015)
REPUBLIC
OF SOUTH AFRICA
Not reportable
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
case
no: C 734/2014
In the matter between:
COMPUTER STORAGE SERVICES AFRICA
(PTY) LTD
APPLICANT
and
CCMA
FIRST RESPONDENT
JOHN M SAIVHE
N.O
SECOND RESPONDENT
MOHAU NTAOPANE
N.O
THIRD RESPONDENT
VERONICA
BOWIE
FOURTH RESPONDENT
Date of hearing: 16
September 2015
Date
of judgment: 2 October 2015
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside both an arbitration
award issued by the second respondent and a rescission ruling
issued
by the third respondent. The arbitration award was issued by the
second respondent on 31 March 2014. The second respondent
held that
the fourth respondent (the employee) had been unfairly suspended and
ordered that she be reinstated. The rescission ruling
under review
was issued by the third respondent on 13 June 2014. In that ruling,
the third respondent held that the applicant had
failed to show good
cause for rescission and that the application should be refused.
[2]
The applicant has applied for the condonation of the late filing of
the review. In a founding affidavit deposed to by an official
of the
employers’ organisation representing the applicant, the
deponent states that on receipt by the applicant of the default
award, he advised the applicant to file an application for
rescission. On receipt of the rescission ruling, it became clear to
him that the third respondent had been satisfied that the notice of
set down in respect of the arbitration proceedings had been
received
by the applicant. What followed was an investigation conducted by the
applicant into whether the notice of set down had
in fact been sent,
the consequence of which was that the review application was filed on
3 September 2014, some 20 days late.
[3]
It is clear from the terms of the affidavit that the deponent
addresses only the lateness of the application to review the third
respondent’s rescission ruling. The application for
condonation does not extend to the late filing of the present
application in relation to the arbitration award granted by default
by the second respondent. In this regard, the review application
is
some 14 weeks late. The applicant’s representative appears to
have assumed that it was sufficient to see condonation only
in
respect of the rescission application – this cannot be so,
since the merits of review sought appear to canvass both the
rescission ruling and the default arbitration award. To the extent
that the applicant has failed to apply for condonation for the
late
filing of the review application in relation to the default
arbitration award issued by the second respondent on 31 March
2014,
this court has no jurisdiction to entertain a review against that
award.
[4]
Insofar as the application for condonation extends to the rescission
ruling issued by the third respondent, the explanation
proffered for
the late filing of the application relates, as I have indicated
above, to attempts by the applicant to confirm proof
of service on
itself of the notice of set down in respect of the arbitration
hearing. To the extent that the applicant submits
that its prospects
of success in the application to have the rescission ruling reviewed
are good, the applicant relies primarily
if not exclusively on its
submissions regarding the notice of set down in respect of the
arbitration proceedings. In summary, the
applicant submits that there
was no proof that the notice of set down had been served by the CCMA
or received by the applicant
and that on this basis, the arbitration
proceedings ought to have been postponed. Insofar as the merits of
the substantive issue
referred to arbitration are concerned, the
applicant avers that the employee was an independent contractor and
not an employee,
and that her referral ought to have been dismissed
on that basis.
[5]
The case made out in the founding affidavit filed in support of the
rescission application (the deponent is the same official
who is the
deponent to the founding affidavit in the present application) is
that the second respondent erroneously came to the
conclusion that
the applicant had wilfully failed to attend the arbitration hearing.
The deponent refers to the note by the second
respondent in paragraph
1 of his award in which he records the following:
…
The [applicant in the present
proceedings] was absent and was not represented despite proper
notification of the date, time and
venue of the arbitration hearing
sent by fast mail to the address provided by the applicant in the LRA
7.11 Form. The matter was
set down for con\arb. There was no
objection to arbitration commencing immediately after the matter was
unresolved during conciliation;
I therefore first set aside myself
that proper notice of set down was served on the respondent and then
proceeded with arbitration
immediately after issuing unresolved
outcome certificate. Telephonically spoke to James the CEO, who
informed me that he was not
aware of the set down, I disagreed with
him since he confirmed the address which is the address to which the
setdown was sent.
It is therefore my conclusion that the respondents
default was wilful.
[6]
The transcript of the proceedings on 26 March 2014 reveals that the
second respondent stated on record that he had contacted
the CEO of
the applicant, James, to find out his whereabouts since the matter
had been set down for 12 o’clock. The second
respondent records
that James indicated to him that he did not get the notice of set
down. The second respondent continues to note
that he had reference
to the file which indicated that:
The
fax went through and there is a letter sent through by fast mail to
the address, 7539 Midrand – that is PO Box 7539 –
in
Midrand 1685. The address confirmed with the applicant, since it is
in a business card. So it is my conclusion that the respondent’s
default is willful…
[7]
The deponent submits that in the circumstances, the default award was
issued erroneously in the absence of the applicant and
that the
applicant was therefore entitled to the rescission of the award.
[8]
The application for rescission, as I have indicated, was supported
only by an affidavit deposed to by the applicant’s
representative. The applicant’s case was a denial by its CEO
that the notice of set down had been received. There was no
confirmatory affidavit filed in that application by the applicant’s
CEO. One might have expected, given the second respondent’s
assertions regarding service and the reference in the record to a
successful fax transmission, that the applicant deal with these,
or
at least provide some response or explanation beyond the
unsubstantiated assertion that the notice was not received by the
CEO. But there is no reference to any of the methods of service
referred to by the commissioner, either in the form of the
successfully transmitted fax referred to in the transcript or the
posting of the notice by fast mail to an address verified as
that of
the applicant. In the circumstances, it was incumbent on the
applicant to place before the third respondent an adequate
and
sufficient explanation for its assertion that it had not received the
notice. What the applicant appears to do is to place
the onus on the
respondents to prove effective service and receipt of the notice of
set down in circumstances where the facts indicate
successful service
by both fax and fast mail.
[9]
Insofar as the applicant relies in support of its submission that it
has good prospects of success on the terms of the agreement
concluded
between itself and the fourth respondent, the less said about this
the better. The so-called consultancy and confidentiality
agreement
entered into between the parties record that there is no employment
relationship between them. This despite the fact
that the fourth
respondent was clearly required in terms of the agreement to abide at
all times with the rules, policies and procedures
implemented by the
applicant a ‘disbursement’ of R 10 000 per month to cover
costs (payable during the course of the
first six months of the
contract period) and further payments and commissions based on
performance and gross profits. It is clear
from the terms of the
agreement that the fourth respondent was required to devote a full
time and attention to the business of
the applicant. Many years ago,
before the amendments effected to the LRA in 2002, this court exposed
similar agreements as shams
which seek to conceal the reality of an
employment relationship. After the introduction of list of factors
introduced by s 200A
to determine the existence of an employment
relationship and the statutory presumption of employment, there
can be little
doubt that despite the label and the content of the
contract in which the applicant relies, the reality in the present
instance
is one of employment. The applicant does not address the
merits of the forth respondent’s referral, i.e. that she was
summarily
suspended without pay after expressing her dissatisfaction
at the fact that a colleague had received a better offer from the
applicant.
[10]
Any assessment of the prospects of success in a review application
must necessarily take into account the high threshold that
applies.
This court is entitled to interfere if and only if the decision to
which the third respondent came was so unreasonable
that no
reasonable decision-maker could come to the same decision on the
available material. As the Labour Appeal Court has observed,
it is
not often that this threshold will be met.
[11]
In short, despite the fact that the delay in filing the application
to review the rescission ruling is not inordinate, I am
not persuaded
that the applicant has any prospects of success in the review
application. The application for condonation accordingly
stands to be
refused.
[12]
I deal next to the issue of costs. The present application was
enrolled for hearing in Cape Town. When the applicant’s
representative was asked why the matter had been so enrolled given
that the applicant was located in Johannesburg, that the arbitration
award and rescission ruling had been issued in Johannesburg and that
the fourth respondent was resident there, the applicant’s
representative could do no more than submit that it was convenient
for the applicant’s adviser to institute proceedings in
Cape
Town. While it is correct that this court is a single court with
national jurisdiction and that a litigant is entitled to
institute
proceedings in any city where the court has a seat, any abuse of this
provision can justifiably be taken into account
in the exercise of
the broad discretion conferred by s 162 in relation to costs.
In the present instance, the applicant elected
to institute these
proceedings in Cape Town knowing full well that the fourth respondent
would be prejudiced in her opposition
to the application. This is
indicative of an attitude on the part of the applicant that pervades
this matter, and in my view there
is no reason to deny the fourth
respondent her costs, such costs to include the travel and
accommodation costs of her attorney.
For
the above reasons, I make the following order:
1.
The application to condone the late filing of the
application for review is dismissed.
2.
The applicant is to pay the costs of these
proceedings, such costs to include the travel and accommodation costs
of the fourth respondent’s
attorney reasonably incurred in
relation to his attendance at court in Cape Town on 16 September
2015.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
REPRESENTATION
For
the applicant: Mr Carelse, Carelse Khan Attorneys
For
the fourth respondent: Mr A Lahree, Afzal Lahree Attorneys.