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[2017] ZALCJHB 19
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Tiger Brands Limited t/a Albany Bakery Germiston v Mvelase and Others (JR2253/13) [2017] ZALCJHB 19 (25 January 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JR2253/13
In
the matter between:
TIGER
BRANDS LIMITED t/a ALBANY
BAKERY
GERMISTON
Applicant
and
THOKOZANI MVELASE
First Respondent
STEVEN NTOMBELA
N.O.
Second Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
Third Respondent
Heard:
21 April 2016
Delivered:
25 January 2017
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction
[1]
This
is an application in terms of the provisions of section 158(1)(g) of
the Labour Relations Act
[1]
. The
Applicant seeks an order reviewing and setting aside a rescission
ruling issued by the Second Respondent (the Commissioner)
on 8
October 2013. The Commissioner rescinded a ruling made on 20
January 2012 in terms of which the First Respondent’s
(Mvelase)
referral to the CCMA was dismissed in his absence.
Background
[2]
The
protracted history of this matter is as follows;
2.1
Mvelase
was employed by the Applicant for approximately 5 years until 3 June
2010 when he was dismissed for misconduct. He had allegedly
assaulted
a fellow employee. Pursuant to his dismissal he had referred an
unfair dismissal dispute to the CCMA.
2.2
Following
unsuccessful attempts at conciliation, the dispute was referred for
arbitration and set down on 22 September 2010. Mvelase
failed to make
an appearance or be represented at the proceedings, and his dispute
was dismissed. He subsequently launched a rescission
application on
or about 5 August 2011 (the first rescission application). This was
about some 11 months after the dismissal ruling.
This application was
granted on 1 September 2011.
2.3
The
matter was then re-scheduled for a hearing on 12 October 2011 but was
postponed at the request of the Applicant. It was again
postponed at
the request of the Applicant on 3 November 2011.
2.4
The
matter was again set-down for arbitration on 30 January 2012. Mvelase
did not attend the proceedings. However, his representative,
Mr
Mbatha of Inqubela Phambili Trade Union had attended and sought to
request a postponement on the basis that Mvelase was unwell
as he was
involved in a motor vehicle accident two days prior to the hearing.
The Commissioner (The Second Respondent in this application)
was not
satisfied with the explanation especially in the absence of a copy of
a medical certificate verifying the reasons Mvelase
could not attend
the proceedings. He had then dismissed the matter.
2.5
On
8 February 2012, Mvelase launched and served a rescission application
on the Applicant in respect of the second dismissal ruling.
It
appears however that his application was never filed with the CCMA
and was thus not pursued by Mvelase.
2.6
On
26 July 2013 Mvelase had launched a third rescission application.
This was some 18 months since the second dismissal ruling was
issued.
The Applicant had opposed this application. The Second Respondent had
considered and granted the application in terms of
a ruling issued on
8 October 2013, which ruling is the subject matter of this review
application.
[3]
In
its opposition to the rescission application before the CCMA, the
Applicant contended that it had questioned the CCMA’s
jurisdiction to determine the rescission application in the absence
of an application for condonation for its late filing. The
Applicant
also attacked Mvelase’s grounds for rescission and highlighted
material contradictions in the contents of the second
and third
rescission applications which were deemed to be mutually destructive
to his contentions that he had showed good cause.
The Rescission
Ruling
[4]
In
arriving at his conclusions, the Commissioner stated that Mvelase had
not been in wilful default as he was ill on the date of
the
proceedings, and had backed up that contention with a copy of a
medical certificate as attached to his affidavit. The Commissioner
in
the same vein stated that he was unable to pronounce on the
validity of the medical certificate, but had accepted it for
what it
was. The Commissioner further concluded that Mvelase had good
prospects of success in respect of his claim as he was not
given an
opportunity to respond to the allegations against him.
The grounds for
review
[5]
The
Applicant attacked the rescission ruling on a number of grounds,
including that;
5.1
The
Commissioner had committed a gross irregularity and/or exceeded his
powers in dealing with the rescission application in the
absence of
an application for condonation which he found was unnecessary;
5.2
The
Commissioner committed a material error of law in that he allegedly
failed to apply the general principles of evidence applicable
to
motion proceedings when he decided the matter;
5.3
The
Commissioner reached an irrational decision that no reasonable
decision maker could reach on the evidence before him.
[6]
Mvelase
in opposing the review application accused the Applicant of merely
delaying the matter to avoid facing an arbitration. The
substance of
his opposition is that the Court has no jurisdiction to hear the
matter (even though he does not suggest a basis for
such submission);
He had further contended that his application for rescission at the
CCMA was filed on time and in accordance
with the Rules and
procedures of the CCMA. Accordingly, he was of the view that there
was thus was no need for him to apply for
condonation.
Evaluation
[7]
Central
to this application is whether there was a need on the part of
Mvelase to apply for condonation in respect of the rescission
application considered by the Commissioner. It follows that if indeed
there was a need for such an application, the Commissioner
would not
have had the requisite jurisdiction to determine the application. To
the extent that this might be the case, this would
be the end of the
matter, as the resultant ruling would have been issued
ultra
vires
and thus a nullity.
[8]
The
starting point is Rule
32
of the
CCMA Rules, which provide that an application for the variation or
rescission of an arbitration award or ruling must be made
within
fourteen days of the date on which the applicant became aware of the
arbitration award or ruling. To the extent that the
time frames
stipulated in Rule 32 are not complied with, Rule 9 of the CCMA rules
stipulates that a party must apply for condonation
in compliance with
the provisions of Rule 31(2), whilst Rule 35 of the CCMA requires of
a party seeking condonation to show good
cause for non-compliance.
[9]
In
respect of the rescission application before the CCMA, it was not
disputed that the Mvelase had initially launched the first
application on
8
February 2012. Ordinarily, this application would have been filed on
time, safe for the fact that it was not properly filed with
the CCMA.
In essence then, there was no proper application before the CCMA.
[10]
The
second application in respect of the same dismissal ruling was
subsequently filed on 26 July 2013, some 18 months since the
dismissal ruling was issued.
The
Applicant’s contention was that it had raised the issue of
condonation with the Commissioner, and from the reading of
the
ruling, it does not appear that the Commissioner considered the
issue. This was despite the Applicant having submitted copies
of
Mvelase’s previous rescission application, in which he had
averred having received the dismissal ruling on 8 February
2012,
whilst in the subsequent affidavit he had averred that he only became
aware of the dismissal ruling on 23 July 2013. Even
if there was a
dispute as to the date on which Mvelase became aware of the dismissal
ruling, it is improbable that he could not
have been made aware of
that ruling on 30 January 2012, as he was represented by Mbatha at
those proceedings.
[11]
Even
if the Applicant had not raised the issue of condonation, the
Commissioner was still obliged to satisfy himself that indeed
the
rescission application was properly before him. In his ruling, the
Commissioner failed to deal with this jurisdictional requirement,
and
on that ground alone, the rescission ruling is a nullity and thus
ought to be set aside.
[12]
Even
if the Commissioner for some reason believed he had the requisite
jurisdiction, on the merits of the application itself, he
ought not
have granted the rescission. This conclusion is based on the
following;
12.1
Mvelase’s reason for failing to attend the arbitration
proceedings on 30 January 2012 was that he was
not feeling well and
was attended to by a medical doctor. However, on 30 January 2012 and
when Mbatha sought a postponement, his
reasons were that Mvelase had
been involved in a motor vehicle accident two days prior to the
hearing. A copy of the medical certificate
attached to his affidavit
is however dated 30 January 2012, and Mvelase is diagnosed with a
‘back pain’.
12.2
To the extent that Mvelase’s reasons for his default as
proffered by Mbatha were substantially different
from those he had
proffered in his application before the Commissioner, it follows that
a conclusion should have been reached that
he was indeed in wilful
default, specifically since it appeared that he did not take the CCMA
into his confidence. Furthermore,
even if the Commissioner sought to
rely on the copy of the medical certificate presented, it is trite
that such a certificate on
its own is not sufficient proof in respect
of the Mvelase’s absence
[2]
,
and merely constitutes hearsay. Worst still however, rather than
pronouncing on the validity and admissibility of that copy, the
Commissioner chose not to, and accepted the copy for what it was
worth. This in my view constituted a reviewable irregularity on
the
part of the Commissioner.
12.3
In regards to Mvelase’s prospects of success, his contention in
his affidavit before the CCMA was that
he was not afforded an
opportunity to respond to the allegations against him, and the
Commissioner had concluded that if Mvelase’s
statement was
anything to go by, this constituted a serious procedural
irregularity. As I understood Mvelase’s contentions,
his
primary complaint was that his dismissal was procedurally unfair.
This contention was further repeated during argument by Mr.
Luthuli
on his behalf, who had also added that Mvelase was dismissed simply
because he was a shop steward.
12.4
The contention that Mvelase was dismissed because he was a shop
steward is clearly a redherring. This allegation
was never raised in
his application for rescission before the CCMA. Furthermore,
the Applicant in its response had attached
minutes of a disciplinary
hearing leading to Mvelase’s dismissal, and
prima
facie
,
his contentions that his dismissal was procedurally unfair as he was
not afforded an opportunity to dispute the Applicant’s
allegations of misconduct against him could not have been
sustainable.
[13]
In
the light of the above conclusions, it follows that the rescission
ruling issued by the Commissioner is reviewable and thus ought
to be
set aside. The Commissioner had no jurisdiction to determine the
application in the absence of an application for condonation
for its
late filing, and in addition, Mvelase had not shown good cause as to
why rescission should have been granted. Given
the protracted
nature of this matter, and the material that was placed before the
Court, it would not be in the interests of justice
to remit this
matter back to the CCMA for re-consideration. Further having had
regard to the requirements of law and fairness,
a cost order is not
deemed to be warranted in this case.
Order
[
14]
Accordingly, the following order is made;:
1.
The
rescission ruling issued by the Second Respondent is reviewed, set
aside, and replaced with the following order;
1.1
The application for rescission of the dismissal ruling issued on 30
January 2012 is dismissed.’
2.
There
is no order as to costs.
__________________
Edwin Tlhotlhalemaje
Judge of the Labour Court
of South Africa.
APPEARANCES:
On
behalf of the Applicant:
Mr M Khoza of Edward Nathan Sonnenbergs
Inc.
On
behalf of the Respondent: Mr E
Luthuli of Inqubelaphambili Trade Union
[1]
Act 66 of 1995
[2]
Mgobhozi v Naidoo NO & Others
[2006] 3 BLLR
242
(LAC)