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[2017] ZALCJHB 286
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Alpine Swiss Foods CC v Food and Allied Workers Union obo Munyani and Others (JR2680/13) [2017] ZALCJHB 286 (4 August 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
CASE
NO: JR2680/13
In
the matter between:
ALPINE
SWISS FOODS
CC
Applicant
and
FOOD
AND ALLIED WORKERS UNION
OBO
MUNYANI,ELLA &11
OTHERS
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
Second
Respondent
TELADIA,SHAHID
N.O
Third
respondent
Heard
:
3 August 2017
Delivered
:
4 August 2017
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside a rescission ruling
made by the third respondent on 5 December 2013. In her ruling,
the
third respondent, to whom I shall refer as the commissioner, refused
to rescind an arbitration award in favour of the first
respondent
granted on 24 September 2013. The ruling under review incorporates a
ruling in relation to condonation for the late
filing of the
rescission application. That part of the ruling is not challenged in
these proceedings.
[2]
The factual background to the ruling is not in dispute. The applicant
and the first respondent were engaged in a dispute that
during the
course of February 2013 culminated in a strike at the applicant’s
premises. Various attempts were made to resolve
the dispute. I shall
revert to this issue in due course, but for present purposes it is
sufficient to note that by 25 June 2013,
the applicant had taken the
view that the first respondent’s members had absconded. On 11
June 2013, the second respondent,
the CCMA, issued a default
arbitration award in favour of the first respondent following the
applicant’s failure to attend
arbitration proceedings scheduled
for 7 June 2013. That award was rescinded on 31 July 2013. On 22
August 2013, the CCMA sent a
letter by registered post, giving notice
of the set down of an arbitration hearing on 19 September 2013. On 16
September 2013,
the CCM I telephoned the applicant’s offices
and spoke to one Lewis (Louis) du Plooy to confirm the hearing. Lewis
is the
applicant’s administrator. The applicant did not attend
the hearing on 19 September 2013 and after hearing evidence, the
commissioner issued a default award on 24 September 2013. In that
award, the commissioner found that the employees had been
substantively
and procedurally unfairly dismissed, and ordered the
applicant to reinstate them.
[3]
On 30 October 2013, the applicant filed an application for
rescission, seeking to rescind the default award issued on 24
September
2013. On 5 December 2013, the commissioner issued a ruling
refusing the application. That ruling, as I have indicated above, is
the subject of the present proceedings.
[4]
The grounds for review are not readily apparent from the founding
affidavit. The applicant appears to attack the correctness
of the
commissioner’s decision, and has cast the application in terms
more appropriate to an appeal. The applicable approach
requires the
applicant in a review application to establish acts of misconduct or
a gross irregularity in relation to the proceedings
or some other
reviewable irregularity, and further to establish that the result of
the proceedings (in this case, the ruling) falls
outside of a band of
decisions to which a reasonable person could come on the available
material. That is not the case that the
applicant has made out in the
founding affidavit, and is in itself a basis on which the present
application ought to be dismissed.
Be that as it may, there are three
grounds of complaint discernible from the founding affidavit which,
for present purposes, I
shall treat as grounds for review. The first
is the CCMA’s failure to comply with the
audi alterem partem
rule in that it failed to notify the parties of the rescission
hearing and made a ruling solely on the papers. The second ground
relates to the issuing of the notice of set down and the telephone
conversation with Lewis. The third ground relates to the existence
or
otherwise of any
bona fide
defence to the first respondent’s
claim, and the commissioner’s findings in this regard.
[5]
Turning first thing to the alleged failure to comply with the
audi
rule, rule 31 (10) of the CCMA rules entitles a commissioner to
determine an application in any manner that he or she deems fit,
provided that the parties are informed of how the process will be
conducted and given an opportunity to be heard. This court has
previously held their there is no hard and fast rule as to when a
hearing should be convened, and that cases of this nature ought
to be
assessed on a case-by-case basis (
Satinsky 128 (Pty0 Ltd v Just
Group Afroca v DRC & others
[2013] ZALCJHB (26 February
2013)).
[6]
In the present instance, the applicant’s attorneys were advised
by the CCMA that the application for rescission would
be decided on
paper. The deponent to the founding affidavit records that this
advice was given during the week preceding 23 November
2013 when the
applicant’s representative was advised of that fact and that
the ruling would be made by 6 December 2013. The
applicant’s
attorneys did not dispute the nature of the process, nor did they
demand a
viva voce
hearing. Instead, they instructed counsel
to draft heads of argument which were filed. The rescission ruling
indicates that the
commissioner had before her a bundle of documents
filed by the applicant, and that the application was unopposed.
[7]
Clearly, in terms of the applicable rule, the commissioner had a
discretion to determine the rescission application on the papers.
In
these proceedings, the applicant does directly not challenge the
exercise of that discretion; it simply states that it was ‘clearly
not in default of attendance of the rescission hearing’. That
is not the issue – the issue is whether the commissioner’s
award is reviewable on account of her electing to decide the
rescission application on the papers. As I have indicated, she was
entitled to do so and the applicant’s representatives had been
notified of her intention to do so. I fail to appreciate
how
the applicant can be said to have suffered any material degree of
prejudice on account of the application having been decided
in
chambers. In my view, the commissioner committed no reviewable
irregularity in regard to the process adopted in issuing the
rescission ruling.
[8]
Turning next to the second ground for review, it ought to be recalled
at the outset that the issue in the rescission application
was one of
wilful default. It was not, as the applicant would appear to contend,
one of the validity of the notice of set down.
Indeed, the thrust of
the applicant’s case is that in the absence of a valid notice
of set down, it could not be in wilful
default. Rule 5A of the CCMA
rules does not require the CCMA to ‘serve’ a notice of
set down on parties. The CCMA is
required to do no more than provide
notice of the hearing date of a conciliation or arbitration. It was
not incumbent on the CCMA
to serve the notice of set down on the
applicant using one or another of the permissible forms of service
contemplated by rule
6. It is not disputed that the arbitrator had
before her a schedule dated 22 August 2013 which reflects a list
presented by the
CCMA to the post office, reflecting items addressed
to various parties, including the applicant, to be sent by registered
post. The schedule was stamped by the Benoni post office on the same
date. The applicant contends that the document does not indicate
that
the notice of set down was indeed sent by registered mail and it
denies having received the notice. It is not incumbent on
the CCMA to
prove that the letter it delivered to the post office for posting by
registered post was actually posted. Be that as
it may, despite the
fact that the notice of set down was presented at the post office for
delivery by registered post, even if
I were to accept that the
applicant did not actually receive the letter, the fact remains that
the CCMA was in telephonic contact
with the applicant on 16 September
2013, through Lewis, to confirm the hearing date. In the rescission
application, the applicant
did not file an affidavit by Lewis denying
either the fact of the phone call or its content. Indeed, no such
affidavit has been
filed in these proceedings. The applicant says no
more than that Lewis is employed in an administrative position, that
she has
no dealings with employee relations and that a telephone
conversion between her and the CCMA did not constitute service for
the
purpose of the CCMA rules. In the answering affidavit in the
present proceedings, the deponent avers that Lewis is indeed employed
by the applicant as an administrator and that in his experience, she
always answered telephone calls and received telefaxes and
that there
was no reason why she should not state that she was aware of the
notice of set down. This is not disputed. In
my view, there is
no basis to call into question the commissioner’s reliance on
the conversation with Lewis as confirmation
of the applicant’s
knowledge of the date of the arbitration hearing. To the extent that
the applicants persisted with its
submissions to the effect that
regardless f any conversation with Lewis the notice of set down was
invalid and that this necessarily
had the consequence that the
applicant was not in wilful default, it always remained open to the
applicant to attend at the hearing
and take that point, or to seek a
postponement on the grounds of insufficient notice. Significantly,
the founding affidavit does
not reflect that the deponent, the
managing member of the applicant, was actually unaware of the hearing
date. His averments extend
only to the assertion that the CCMA’s
‘service’ by registered post was not in compliance with
the rules, and
that Lewis was employed in an administrative capacity
and therefore not the appropriate or responsible person with whom the
notice
of the hearing by the CCMA ought to have been telephonically
confirmed. It follows that the commissioner did not commit a
reviewable irregularity when she relied on the fact of the telephone
call to establish wilful default on the part of the applicant.
[9]
In regard to the third ground for review, the commissioner had before
her the version of the applicant in relation to the events
of
February 2013. She also had before her (in the application for
default arbitration) a record of the first respondent’s
version. She found that the applicant had failed to show in its
submissions that it had engaged with the respondent on 6 February
2013 and 21 February 2013, when the first respondent sought feedback
and confirmation on the employees’ return to work. The
commissioner added that the first respondent had written to the
applicant stating that employees would return to work on 11 February
2013 and had appealed for access to the premises. The applicant did
not respond to this email and it was only after the first respondent
again contacted the applicant on 21 February 2013 requesting a
response as a matter of urgency that on 25 February 2013, the
applicant
advised that the first respondent that the employees had
been dismissed on the grounds of desertion. The fact remains that the
applicant did not respond to the first respondent or engage with it
when the employees did not return to work on 11 February 2013
as the
applicant expected them to do. Instead, it ignored further
communications from the first respondent and simply, some two
weeks
later, advised the first respondent that the employees were no longer
employed. The offer of an appeal after the fact takes
matters no
further. In these circumstances, I fail to appreciate how it
can be said that the commissioner committed a reviewable
irregularity
in assessing the requirement of good cause as she did, or how it can
be said that her conclusion fails to meet the
reasonableness
threshold.
[10]
In short, in my view, the applicant has failed to establish that the
commissioner committed any irregularity or other misdirection
that
had the result of a ruling so unreasonable that no reasonable person
could come to the decision that she did on the available
evidence.
The review application accordingly stands to be dismissed. Finally,
there is no reason why costs ought not to follow
the result.
I
make the following order:
1. The application is dismissed, with
costs
_______________________
André
van Niekerk
Judge
APPEARANCES
APPLICANT:
Adv AJ Nel, instructed by Lindeque Van Heerden Attorneys
FIRST
RESPONDENT: Mr M Makhura, Cheadle Thompson and Haysom Inc.