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[2017] ZALCJHB 296
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Wade Walker (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1870/14) [2017] ZALCJHB 296; (2017) 38 ILJ 2842 (LC) (8 August 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JR1870/14
In
the matter between:
WADE
WALKER (PTY) LTD
Applicant
and
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
First Respondent
NICHOLUS SONO N.O.
CLEMENT
MASITE
Second Respondent
Third Respondent
Heard:
3
August 2017
Delivered:
8
August 2017
Summary:
Commissioner
misdirecting himself in refusing an application for a postponement –
award set aside on review
JUDGMENT
MYBURGH,
AJ
[1]
The central
issue in this section 145 review application is whether the
commissioner committed a reviewable irregularity in refusing
the
company a postponement of the CCMA arbitration.
[2]
The
essential background is this. Following his dismissal by the company
on 19 June 2014, the employee referred a dispute to the
CCMA. On 25
June 2014, a notice of set down was issued by the CCMA enrolling the
matter for con / arb on 21 July 2014. On that
day, the commissioner
first attempted to conciliate the matter and after having issued a
certificate of outcome, proceeded to the
arbitration phase. At this
point, the company applied for a postponement on the basis that it
was unprepared for the arbitration,
with the application having been
refused by the commissioner. The arbitration then proceeded, but the
company was unable to produce
witnesses and documentation necessary
to defend the matter properly. On 25 July 2014, the commissioner
issued his award, in which
he found the employee’s dismissal
substantively unfair and ordered his retrospective
reinstatement.
[3]
Focusing on
the application for a postponement, it is apparent that there was
some discussion with the commissioner in this regard
before he went
on record. On the record, Mr Oosthuizen (the company’s
representative) motivated the application on the basis
that the
notice of set down had not come to the attention of the persons
dealing with the matter, and that the company was thus
unprepared –
not having the necessary witnesses and documentation available. In
response, the employee expressly
agreed
to the postponement being granted (indeed, he appears to have wanted
a postponement himself). Immediately thereupon, and without
any
further engagement with the parties, the commissioner ruled that he
was refusing the postponement, and would give reasons in
his award.
[4]
In his
award issued four days later, the commissioner said this about the
refusal of the application for a postponement:
“
I have analysed the application
and applied my mind carefully hereon. The employer was notified of
the date of the hearing on the
25
th
of June 2014 via fax number 086 557 4912. The employee has
submitted proof that the fax number belongs to the respondent.
The
employer did not provide any explanation to show that there was a
technical problem with the fax on the 25
th
of June 2014. The employer was afforded more than 21 days in order to
prepare for the case. It was therefore my finding that the
employer
failed to submit convincing reasons for the postponement.”
[5]
This is a
remarkable finding. In effect, the commissioner refused the
application for a postponement because the notice of set down
had
been timeously issued. While that was a sound point of departure, the
commissioner completely failed to address the basis for
the company’s
application or the predicament that it found itself in. While Mr
Graham (who appeared for the employee in this
court) submitted that
this could be excused in the light of the fact that the commissioner
was only obliged to give brief reasons,
this is without merit.
Brevity is not an excuse for the lack of substance.
[6]
The general
principles applicable to applications for postponements are trite law
and need not be repeated here, save to say that
considerations of
prejudice will ordinarily constitute the “dominant component”
in the evaluation of an application
for a postponement.
[1]
The commissioner should weigh the prejudice which will be caused to
the respondent in such an application if the postponement is
granted
against the prejudice which will be caused to the applicant if it is
not. And in assessing prejudice, the commissioner
should consider
whether any prejudice caused by the postponement can fairly be
compensated by an order of costs or any other ancillary
mechanisms.
[7]
In
assessing the matter, I am mindful of the fact that in
Carephone
(decided
in 1998) the LAC found that the requirements for the functioning of
the CCMA “are less congenial to the granting
of postponements
than is the case in a court of law”.
[2]
But as found by Van Niekerk AJ (as he then was) in
Fundi
Projects & Distributors
:
[3]
“…
the
Carephone
case was decided at a time when CCMA commissioners had very limited
powers to award costs. The discretion afforded them by the
amendments
to the Labour Relations Act introduced in 2002 enables commissioners
to give full effect to the principles stated above,
and in doing so,
to address the policy concerns articulated in
Carephone
both in respect of the parties to a dispute and the public
generally.”
[8]
Reverting
to the facts of the present matter, while the dominant component of
the commissioner’s evaluation of the application
for a
postponement ought to have been the issue of prejudice, it is
apparent from both the transcript of the arbitration and the
award
that the commissioner failed to consider it in the slightest. If the
commissioner had considered the issue – as he
ought to have –
he would surely have concluded that the balance of prejudice favoured
the granting of the postponement,
especially
where the employee agreed to a postponement. In failing to do so, the
commissioner committed a material misdirection.
[9]
To my mind,
in the circumstances of this matter, the distorting effect of this
material misdirection was that the commissioner committed
a gross
irregularity in the conduct of the arbitration proceedings in three
respects. Firstly, he acted procedurally unfairly in
refusing the
company a postponement.
[4]
Secondly, he misconceived the nature of the enquiry, in that he
failed to undertake an assessment of the balance of prejudice,
which
ought to have been the dominant component in the evaluation of the
application for a postponement.
[5]
Put differently, the commissioner’s misconception of the
enquiry lay in his failure to “
conduct
the enquiry properly by asking the questions he ought rightly to have
asked to decide” the issue before him.
[6]
Thirdly, he acted
unreasonably in refusing the postponement. In relation to the latter,
in circumstances where the matter was heard
little more than a month
after the employee’s dismissal, where the employee agreed to a
postponement, and where, in the circumstances,
the balance of
prejudice overwhelmingly favoured the grant of a postponement, a
reasonable commissioner would not have refused
the postponement.
[7]
[10]
In the
result, the following order is made:
1)
the second
respondent’s award is reviewed and set aside;
2)
the dispute
arising from the third respondent’s dismissal is referred back
to the first respondent for a fresh hearing by
a commissioner other
than the second respondent;
3)
there is no
order as to costs.
________________________________
Myburgh, AJ
Acting
Judge of the Labour Court of South Africa
Appearances
For
the applicant: D Pretorius of Fluxmans Inc
For
the third respondent: T Graham of Graham Attorneys
[1]
See for a full rendition of these
general principles,
Insurance
& Banking Staff Association & others v SA Mutual Life
Assurance Society
(2000)
21
ILJ
386 (LC) at para 44. These principles have been found to be
applicable to CCMA arbitrations – see
MMMJN
Supermarket CC t/a Riverside Spar v Collins & Others
[2002] 5 BLLR 442
(LC) at paras 13-14,
Masstores
(Pty) Ltd t/a Builders Warehouse v CCMA & others
[2006] 6 BLLR 577
(LC) at para 41, and
Fundi
Projects & Distributors (Pty) Ltd v Commission for Conciliation,
Mediation & Arbitration & others
(2006) 27
ILJ
1136 (LC) at para 10.
[2]
Carephone (Pty) Ltd v Marcus NO &
others
(1998) 19
ILJ
1425 (LAC) at para 57.
[3]
Fn 1 above at para 14.
[4]
The fundamental right to
administrative action that is
procedurally
fair
has been found to
have suffused section 145 of the LRA:
Arends
& others v SA Local Government Bargaining Council & others
(2015) 36
ILJ
1200 (LAC) at para 19. And where a commissioner acts procedurally
unfairly, the reasonableness of the result of the award need
not be
assailed in order to succeed on review: Myburgh & Bosch
Reviews
in the Labour Courts
at
84, para 4.5.2.
[5]
The misconception of the nature of
the enquiry is a gross irregularity distinct from unreasonableness;
so where the former is
established, the latter need not be. This is
clear from
Herholdt v
Nedbank Ltd (COSATU as Amicus Curiae)
(2013) 34
ILJ
2795 (SCA) at para 25,
Head
of Department of Education v Mofokeng & Others
(2015) 36
ILJ
2802 (LAC) at para 33, and
Toyota
SA Motors (Pty) Ltd v CCMA & others
(2016) 37
ILJ
313 (CC) at para 118.
[6]
Xstrata South Africa (Pty) Ltd
(Lydenburg Alloy Works) v NUM obo Masha and Others
(JA4/15)
[2016] ZALAC 25
(14 June 2016) at para 11.
[7]
This being the test for
reasonableness set in
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
(2007) 28
ILJ
2405 (CC) at para 110.