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[2017] ZALCJHB 332
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Zurich Insurance Company SA Ltd v Nkosi NO and Others (JR438/11) [2017] ZALCJHB 332 (13 September 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JR 438/11
In
the matter between:
ZURICH
INSURANCE COMPANY SA LTD
Applicant
and
COMMISSIONER
J S K NKOSI N.O.
First Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second
Respondent
BIFAWU
obo MANZINI S.N.
Third Respondent
Heard:
4 July 2014
Delivered:
13 September 2017
JUDGMENT
LANDMAN
AJ
Introduction
[1]
This
is an application in terms of section 145 of the Labour Relations
Act,
[1]
brought by Zurich Insurance Company SA Ltd, the applicant, to review
and set aside a rescission ruling made on 21 January 2011
by the first respondent (to whom I shall refer as “the second
commissioner”) under case number GAJB 2537/10. The third
respondent (BIFAWU) on behalf of its member – Ms Manzini –
opposes the application.
[2]
The applicant employed Ms Manzini, until
she was retrenched along with approximately 252 other employees
pursuant to a large-scale
retrenchment exercise. The applicant
provided her with a notice of her retrenchment on 1 July 2010,
and dismissed her
with effect from 31 July 2010.
[3]
On about 14 September 2010, BIFAWU referred
an unfair dismissal dispute to the second respondent, accompanied by
an application
for condonation.
[4]
The second respondent convened an
in
limine
condonation hearing before
Commissioner Boyce. The applicant’s representative attended the
in limine
hearing. Ms Manzini and BIFAWU were absent. At the hearing held in
their absence, the applicant’s representative urged
Commissioner
Boyce to refuse condonation.
[5]
On 7 October 2010, Commissioner Boyce
issued a written ruling refusing condonation. Commissioner Boyce
attached weight to BIFAWU
and Manzini’s non-appearance before
him and found that Ms Manzini had failed to provide a reasonable
explanation for her
failure to refer the dispute timeously and that
there were no reasonable prospects of success.
[6]
On or about 4 November 2010, BIFAWU filed
an application for the rescission of the ruling. BIFAWU explained why
it and Ms Manzini
did not attend the
in
limine
hearing before Commissioner
Boyce.
[7]
The applicant opposed the rescission
application and filed an affidavit, which,
inter
alia
, addressed BIFAWU’s
explanation for its non-attendance before Commissioner Boyce. BIFAWU
did not file a replying affidavit.
[8]
The rescission application was set down for
hearing on 7 December 2010.
[9]
The applicant’s representative
attended at the second respondent on 7 December 2010. After
waiting over an hour,
Commissioner Boyce informed the applicant’s
representative that he would determine the rescission application on
the papers
without argument. I point out that BIFAWU and Ms Manzini
maintain that they too attended at the second respondent on
7 December 2011
albeit 30 minutes late. They too were
informed that the application would be decided on the papers.
The
rescission ruling
[10]
BIFAWU sought the rescission of “the
default award issued by” Commissioner Boyce. On 26 January 2010
the matter, as
we have seen was decided in the absence of the
parties, by the second commissioner. He noted that the issue to be
decided was whether
rescission should be granted. The second
commissioner rescinded “the dismissal ruling” (ruling
refusing condonation)
issued by Commissioner Boyce, and ordered that
the matter be rescheduled for arbitration and that there be no order
as the costs.
[11]
In arriving at his decision, the second
commissioner noted Mr Nhlapo’s – a union official in
BIFAWU’s employ
– explanation that he only learnt of the
ruling upon enquiring at the second respondent. He noted further
that, in terms
of section 144 of the Act, a commissioner may rescind
an award or ruling if such award or ruling was erroneously issued or
sought
in the absence of an affected party. The second commissioner
stated that the fact that the notice of set down was sent to a
correct
(fax number) is not proof that it was received. In the
absence of a contrary version, the second commissioner considered
himself
bound to accept BIFAWU’s version.
The
grounds of review
[12]
The applicant seeks an order setting aside
the rescission ruling on the following grounds:
(a)
The second commissioner did not apply his
mind to the facts. Had he done so the second commissioner would have
realised that Ms
Manzini’s
unfair dismissal dispute had to be viewed within the context of a
mass retrenchment of some 252 employees. Accordingly,
the second
commissioner ought to have recognized that the second respondent did
not have jurisdiction to arbitrate the dispute.
The dispute should
have been referred to the Labour Court. The second commissioner thus
exceeded his powers.
(b)
The second commissioner failed to apply his
mind to the issue of condonation. Had he applied his mind he would
have realised that
Commissioner Boyce made a decision of a final
nature that could be set aside only by way of review in the Labour
Court.
(c)
The rescission application ought to have
been conducted in the presence of the party or parties. The applicant
attended while BIFAWU
and Ms Manzini did not. The fact that BIFAWU
and Ms Manzini were in default by not attending the rescission
hearing, along
with factors such as their failure to file their
applications timeously; failure to attend proceedings; and filing a
rescission
application without a condonation application, were
important factors for consideration by the second commissioner. I
should point
out that BIFAWU avers that although Mr Nhlapo and
Ms Manzini were late for the hearing on 7 December 2010, they
arrived within
the thirty (30) minute grace period normally allowed
by the second respondent. On their arrival, they were met by the
Senior Commissioner
who informed them that the matter would be
decided on paper.
(d)
The applicant’s right to a fair
hearing and fair labour practices was infringed when the second
commissioner and the second
respondent chose to decide the matter on
the papers rather than convene an oral hearing. The failure to hear
oral submissions prejudiced
the applicant because it was not able to
submit,
inter alia
,
that the rescission application should be dismissed due to a further
non-appearance by BIFAWU or why the application should proceed
on an
unopposed basis (in line with the applicant’s contention, which
BIFAWU disputes, that BIFAWU and Ms Manzini were not
in attendance).
(e)
The second commissioner failed to apply his
mind to Commissioner Boyce’s condonation ruling but reviewed
the ruling. The second
commissioner failed to consider what he was
rescinding. The second commissioner was required to determine whether
there was a proper
explanation for BIFAWU and Ms Manzini’s
failure to appear before Commissioner Boyce. The second commissioner
was not required
to determine whether condonation should have been
granted or not.
(f)
The second commissioner found that: “
The
fact that notice was sent to a correct fax number is not proof that
it was received.
” However, the
second commissioner failed to consider that the applicant constantly
disputed BIFAWU’s averment that
BIFAWU only became aware of
Commissioner Boyce’s ruling on 28 October 2010. By finding that
“
In the absence of a contrary
version, I must accept the version of the applicant (Third
Respondent)
”, the second
commissioner failed to consider the evidence before him.
(g)
The second commissioner failed to consider
evidence presented by the applicant that BIFAWU did not seek
condonation for the late
filing of the rescission application. The
applicant avers that the rescission application ought to have been
filed on or before
21 October 2010.
(h)
The second commissioner acted unreasonably
by not recognizing that Commissioner Boyce considered all the factors
relevant to condonation
and there the ruling was not erroneously made
for purpose of section 144 of the Act.
The
test of review
[13]
This application is brought in terms of section 145 of the Act.
Section 145 provides, in relevant part, that:
“
(1)
any party to a dispute who alleges a defect in any arbitration
proceedings under the auspices
of the Commission may apply to the
Labour Court for an order setting aside the arbitration award—
(a)
within
six weeks of the date that the award was served on the applicant.
. . .
(2)
a defect referred to in subsection (1), means—
(a)
that the commissioner—
(i)
committed
misconduct in relation to the duties of the commissioner as an
arbitrator;
(ii)
committed
a gross irregularity in the conduct of the arbitration proceedings;
or
(iii)
exceeded
the commissioner’s powers; or
(b)
that
an award had been improperly obtained.”
[14]
In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
,
[2]
Navsa AJ held that in the light of the constitutional requirement (in
section 33(1) of the Constitution) that everyone has
the right
to administrative action that is lawful, reasonable and procedurally
fair, the reasonableness standard should now suffuse
section 145 of
the Act.
The
threshold test for the reasonableness of an award or ruling,
expressed negatively, is whether the decision reached by the
commissioner
is one that a reasonable decision-maker could not
reach.
[3]
Evaluation
(i)
The law
[15]
Section 144 of the Act provides,
inter
alia
, that any commissioner who has
issued an arbitration award or ruling, or any other commissioner
appointed by the director for that
purpose, may on that
commissioner’s own accord, or, on the application of any
affected party, vary or rescind an arbitration
award or ruling “
(a)
erroneously sought or erroneously made in the absence of any party
affected by that award”.
[16]
The procedure for instituting a rescission
application is set out in rule 32 of the Rules of the CCMA. Rule 32
of the CCMA rules
reads as follows:
“
An
application for the variation or rescission of an arbitration award
or ruling must be made within fourteen (14) days of the date
on which
the applicant became aware of the arbitration award or ruling.”
[17]
The
test for determining whether a rescission application should be
granted is articulated in the judgment of
Superb
Meat Supplies CC v Maritz
[4]
where it was held that:
“
The
applicant must give a reasonable explanation of his default; his
application must be made bona fide; he must show that he has
a bona
fide defence to the plaintiff's claim. This needs to be shown
prima
facie
only and it is not necessary to deal fully with the merits of the
case or to prove the case. It is sufficient to set out facts
that, if
established at the trial, would constitute a good defence. The
defence must have existed at the time of the judgment.
In determining whether or not good
cause has been shown, the court is given a wide and flexible
discretion in terms of rule 31(3)(b).
When dealing with words
such as ‘good cause’ and ‘sufficient cause’
the Appellate Division has refrained
from attempting an exhaustive
definition of their meaning in order not to abridge or fetter in any
way the wide discretion implied
by these words. The court’s
discretion must be exercised after a proper consideration of all the
relevant circumstances.”
[18]
I turn to consider whether the second
commissioner reached a conclusion that no reasonable commissioner
could have reached.
[19]
First,
the second commissioner did not afford the parties an opportunity to
address him and make oral submissions. The rules of
the CCMA permit a
commissioner to consider an application in the manner he or she deems
appropriate. Nonetheless, in
Satinsky
128 (Pty) Ltd t/a Just Group Africa v Dispute Resolution Centre
[5]
Snyman
AJ held:
“
Of
course, there can be no hard and fast rules as to when such a hearing
should be convened. This must be determined on a case by
case basis,
by the arbitrator to whom the determination of the rescission
application is allocated. In my view, the following can
however serve
as guidelines when the decision should rather be made to convene a
hearing to determine the rescission application:
47.1.
The determination of a rescission application only on the papers
should principally be reserved for instances
where the rescission
application is unopposed;
47.2.
Where the rescission application is opposed, a rescission hearing
should be convened. This situation will
leave parties with the view
that justice is not only done, but is actually seen to be done in
their presence. There may be instances
however where even an opposed
rescission would not necessitate a hearing. An example would be where
it is clear from the documents
filed that the default arbitration
award was indeed erroneously made, as in such a case, it is not even
necessary to determine
the issue of willful default and prospects of
success. Another example would be where the explanation for the
default is not contested,
and only the issue of prospects of success
is contested, because of the manner in which the issue of prospects
of success must
be determined;
47.3.
There have been several instances where arbitrators have determined
unopposed rescission applications unfavourably,
based on the
arbitrator’s own views gathered from external sources (such as
the case file) or from the arbitrator’s
own contradiction of
statements made the applicant’s founding affidavit in the
rescission, or where the arbitrator adopts
his own negative views
about the rescission applicant’s bona fides. In these kind of
instances it is imperative that the
rescission applicant be
confronted in a rescission hearing with these issues by the
arbitrator, so the applicant for rescission
can address the
arbitrator on the same.”
[6]
[20]
When the second respondent sets a matter
down for oral hearing well knowing that the application is one for
rescission, parties
can expect that an oral hearing will take place.
To deny one or both of the parties an opportunity to be heard is
unfair and can
cause material prejudice. In my view, the second
commissioner ought to have afforded the parties an opportunity to
address him
on issues material to the application.
[21]
The second commissioner’s failure to
receive oral argument constitutes a gross irregularity.
[22]
Secondly, there is no merit in the
applicant’s argument that the second commissioner failed to
apply his mind to the issue
of condonation and that Commissioner
Boyce’s decision was final in nature and could only be set
aside on review by the Labour
Court.
[23]
Thirdly, the second commissioner was
obliged to satisfy himself that BIFAWU’s application for
rescission was brought timeously,
that is to say, did he have
jurisdiction to entertain the application. If the application for
rescission is filed late and no application
for condonation has been
made and been granted, the commissioner does not have the power to
entertain the application. It is trite
that when an application is
late, an application for condonation for the late filing of the
application has to be made.
[24]
Mr Nhlapo averred in BIFAWU’s
founding affidavit that he became aware of Commissioner Boyce’s
ruling on 28 October 2010.
He then convened an urgent meeting with Ms
Manzini to discuss the matter. On 3 November 2010, Mr
Nhlapo and Ms Manzini
held a second meeting at which the latter
provided Mr Nhlapo with documents relating to her maternity leave,
which he attached
to the founding affidavit. It was under those
circumstances that the rescission application was filed on
4 November 2010.
On this version, BIFAWU filed the
rescission application within ten (10) days of becoming aware of the
condonation ruling.
[25]
The applicant, on the other hand contended
in its affidavit opposing the rescission application that Mr Nhlapo’s
assertion
that the condonation ruling came to his attention only on
28 October 2010 was not fully explained, and that, in any event,
BIFAWU
waited another 6 days before filing the rescission
application. In the ruling, the second commissioner appears to have
accepted,
despite the applicant raising its concerns, that the
rescission application was filed within the prescribed time limits. I
do not
find that the applicant’s concerns raise sufficient
doubt about Mr Nhlapo’s version so as to require an
application
for condonation.
[26]
The second commissioner was entitled to
hear the merits of the application.
[27]
Fourthly, the second commissioner was
obliged to consider, as one of several factors, BIFAWU’s
explanation for its default.
The second commissioner accepted that
BIFAWU’s Mr Nhlapo did not receive the notice of set down of
the
in limine
hearing before Commissioner Boyce even though the second respondent
faxed it to the correct number. The second commissioner addressed
this issue directly by stating: “
The
fact that notice was sent to a correct (address) is not proof that it
was received. In the absence of a contrary version, I
must accept the
version of the applicant [BIFAWU]
”.
[28]
In
MTN
South Africa v Van Jaarsveld and Others
,
[7]
it was held:
“
Rescission
applications of this nature require the presiding officer who is
responsible for deciding them to give consideration
to whether or not
in truth the party who was in default at the time when judgment was
granted or an award handed down, was unaware
of the hearing. If that
fact is established, the explanation for the unawareness must be
considered and if the explanation is reasonable
that
provides the basis for the rescission of the award or judgment as the
case may be. . . ”
[29]
And in
Northern
Province Local Government Association v Commission for Conciliation,
Mediation and Arbitration and Others
,
[8]
it was held:
“
It
seems to me that a commissioner in considering whether or not a
notification of an arbitration hearing has indeed been received
by a
respondent, it is necessary to consider all the facts bearing on that
question. Axiomatically, in deciding whether or not
a fax
transmission was received, proof that the fax was indeed sent creates
a probability in favour of receipt, but does not logically
constitute
conclusive evidence of such receipt. A party to proceedings who
claims that it did not receive a telefaxed notification,
must be put
in a position where it can consider the grounds upon which it is
contended that a notice was furnished to it, and thereupon
give an
explanation as to whether or not it was received, could have been
received, and any other germane circumstance, which has
a bearing on
the explanation tendered that the party was ignorant that the matter
had been set down. Naturally, commissioners must
be on their guard
against abuse of the process by parties who, having been properly
notified but having neglected to participate
in the proceedings,
subsequently wail once an adverse arbitration award is served on
them. Nevertheless, the prudent need to guard
against those
circumstances should not disturb a fair minded enquiry into whether
or not as a fact the notice did not come to the
attention of the
party.”
[30]
BIFAWU’s Mr Nhlapo said that although it appears from the fax
transmission slip that the notice of set down was sent
on
16 September 2010 to BIFAWU’s correct fax number, the
union could not trace having received it. Mr Nhlapo states
that
ordinarily a faxed notice of sent down would be brought to his
attention and reiterates that at no time did he receive a
notification of the set down of the matter for the condonation
process on 16 September 2010 by fax or registered post.
[31]
W J Hutchinson reminds us in a case note entitled “Rescinding
of Arbitration Awards Granted by the Way of Default”,
[9]
that:
“
At
the outset I think that it should be accepted that the use of the
telefax notification is not infallible. The possibility exists
that
an illegible fax may be received if the fax machine’s toner is
faulty. If there is lack of paper in the receiving machine
and it is
subsequently switched off for a certain period of time the
transmission may also be lost… Another possibility
is that a
document may be incorrectly set in the fax machine resulting in the
blank side of the paper being transmitted.”
[32]
The applicant endeavoured to provide reasons why Mr Nhlapo’s
assertion should be doubted. The second commissioner decided
that
there was insufficient reason to reject BIFAWU’s version. The
applicant has not shown that the second commissioner acted
unreasonably. He applied his mind to the issue and accepted BIFAWU’s
version that it had not received the notice of set down.
[33]
Fifthly, the second commissioner was required to be satisfied that
BIFAWU had set out a
prima
facie
case that its application for condonation would have been successful.
BIFAWU needed to refer the dismissal dispute to the second
respondent
but as the referral was out of time condonation was required. In
National
Union of Metalworkers of South Africa v Driveline Technologies
(Pty)
Ltd
,
[10]
Zondo AJP (as he then was) held that:
“
.
. . the wording of section 191(5) imposes the referral of a dismissal
dispute to conciliation as a precondition before such a
dispute can
either be arbitrated or referred to the Labour Court for
adjudication.”
[11]
[34]
The second commissioner was obliged to consider whether BIFAWU had
placed before him facts showing that it had reasonable prospects
of
success in the condonation application.
[35]
Commissioner Boyce had held that Ms Manzini did not have any
reasonable prospects of success in that she was retrenched for
a fair
operational reason. However, Commissioner Boyce was alive to the fact
that had Ms Manzini and/or BIFAWU attended the hearing
before him, he
may have heard a version establishing prospects of success. As he put
it, albeit somewhat cryptically, “
Nothing to gainsay
[company’s] version in the absence of [Ms Manzini]
”
It seems clear that Commissioner Boyce was prepared to entertain the
possibility that BIFAWU and or Ms Manzini may have
brought facts to
light that might persuade him that there are prospects of success.
[36]
In his affidavit supporting the rescission application, Mr Nhlapo
states that Ms Manzini’s dismissal was unfair
in that she
was retrenched while on maternity leave and that the written notice
in terms of section 189(3) was served on the
affected employees
while she was on maternity leave. As I understand Ms Manzini’s
case, the applicant acted unfairly by commencing
a retrenchment
process against her while she was not at work but rather on maternity
leave. The question is whether it is substantively
unfair for an
employer to do so.
[37]
An employer is obliged to seek to reach consensus with its employees
affected by a potential retrenchment exercise. It seems
unfair to
expect an employee who is on maternity leave to participate
meaningfully in that process when she seemingly did not receive
the
notice and could not make submissions to the employer personally or
via her union. Such conduct by employer would appear
prima facie
to be procedurally unfair. However, even if the dismissal was
procedurally unfair, the question is whether such would assist Ms
Manzini as, in cases of mass retrenchments falling within the ambit
of section 189A of the Act, lack of procedural fairness must
be
addressed by way of urgent action before the Labour Court. An urgent
application was launched but it was dismissed on grounds
of lack of
urgency.
[38]
Was the second commissioner’s finding that BIFAWU made out a
proper case for rescission unreasonable?
[39]
I note that the second commissioner failed to address Ms Manzini’s
prospects of success. As held by Snyman AJ in
Satinsky’s
matter:
“
The
second issue to consider in rescission applications is that of
prospects of success. This consideration must be dealt with on
an
equal footing as the explanation for the absence. The difficulty that
often arises in rescission proceedings in the CCMA and
the bargaining
councils is that this consideration is either completely ignored by
arbitrators dealing with the rescission application
or is simply
given cursory reference or consideration. Such conduct would clearly
amount to a failure to properly apply the requisite
principles in
rescission applications, and would constitute a reviewable
irregularity. As was said in
MM
Steel Construction CC v Steel Engineering and Allied Workers Union of
SA and Others
:
“
An
applicant who does not tender an acceptable explanation for his
default, and demonstrate that he has a defence which is bona
fide and
has a prospect of succeeding, will generally not meet that test and
his application will be bound to fail (
Chetty
v Law Society, Transvaal
1985 (2) SA 756
(A)). Those two essential elements ought nevertheless
not to be assessed mechanistically and in isolation. While the
absence of
one of them will usually be fatal, where they are present
they are to be weighed together with other relevant factors in
determining
whether it would be fair and just to grant the
indulgence.””
[12]
(Footnotes omitted.)
[40]
In the absence of any indication that the second commissioner
considered the second leg of the enquiry, I find that the second
commissioner failed to apply his mind to the test he was meant to
apply when considering whether to grant rescission of the
in
limine
ruling.
[41]
Before considering the so-called rescheduling of the dispute for
arbitration, it is necessary to point out that the second
commissioner misconceived his role and had in effect granted
condonation, which, I find, he was not entitled to do. The second
commissioner was not empower to substitute Commissioner Boyce’s
findings on the condonation ruling with his own. The second
commissioner’s role was to decide, firstly, whether BIFAWU was
in wilful default of appearing at the condonation hearing
and,
secondly, whether BIFAWU had prospects of success should a further
condonation hearing be convened. Although the second commissioner’s
ruling does not expressly record that he substituted Commissioner
Boyce’s ruling on condonation with his own, that the second
commissioner ruled that the matter should be referred to arbitration,
suggests that he did. If that is the correct interpretation
of the
second commissioner’s ruling, and I am of the view that it is,
then the second commissioner exceeded his powers in
granting
condonation.
[42]
The second commissioner went further than he should have done by
referring the matter to arbitration. He clearly did not appreciate
that the second respondent did not have jurisdiction to arbitrate the
dispute referred to it. It was common cause on the affidavits
before
him that Ms Manzini’s dismissal dispute had to be viewed
against the background of a wider dismissal dispute concerning
the
mass retrenchment of some 252 employee. In BIFAWU’s affidavit
filed in support of the rescission application, Mr Nhlapo
refers to a
section 189(3) notice served on the affected employees of which Ms
Manzini was but one. The applicant, too, pertinently
referred, in its
application, to the wide scale retrenchment of Ms Manzini and
approximately 252 other employees and pointed
out that section 189A
of the Act applied.
[43]
These allegations ought to have put the second commissioner on notice
that Ms Manzini’s dismissal was but one of several
dismissals
that took place within one retrenchment exercise. As such, the Labour
Court, and not the second respondent, has jurisdiction
to adjudicate
such dismissal disputes.
[44]
Nonetheless, the second commissioner’s ruled that the matter
should be scheduled for arbitration. The overall effect
of his ruling
was that the matter was to proceed directly to the next phase of
dispute resolution, namely, arbitration, without
requiring the
parties to meet under the auspices of the second respondent for
conciliation. In doing so, the second commissioner
misconceived the
nature of a rescission application and exceeded his powers. Had the
second commissioner applied his mind, he would
have realised that
were he to rescind Commissioner Boyce’s ruling, the proper
course would be to remit the matter for a further
in limine
hearing on the question of condonation.
[45]
In the circumstances, I am of the view that the ruling is reviewable
on the grounds set out above and should be set aside.
[46]
I do not consider it appropriate to remit the rescission application
to the second respondent for reconsideration. This Court
has the
power and discretion to determine the rescission application, and in
my view, the information, and evidence before me suffices
for me to
determine the application.
[47]
In
Cementation Mining v Commission for
Conciliation, Mediation and
Arbitration
and Others
,
[13]
it was held:
“
The
LAC and this Court have held that they should correct a decision
rather than refer it back to the CCMA for a hearing de novo
in the
following circumstances: (i) where the end result is a foregone
conclusion and it would merely be a waste of time to order
the CCMA
to reconsider the matter; (ii) where a further delay would cause
unjustified prejudice to the parties; (iii) where the
CCMA has
exhibited such bias or incompetence that it would be unfair to
require the applicant to submit to the same jurisdiction
again; or
(iv) where the Court is in as good a position as the CCMA to make the
decision itself. In this matter, the factors listed
under (i), (ii)
and (iv) are present. In these circumstances, it is appropriate to
grant a substituted order in terms of which
the applicant's
rescission application is granted.” (Footnote omitted.)
[48]
In my view, BIFAWU tendered a reasonable and plausible explanation
for its default in not appearing before Commissioner Boyce.
I find
that the explanation is reasonable and that BIFAWU was not in wilful
default.
[49]
As to the second leg of the enquiry, I find that the primary basis
upon which BIFAWU avers that Ms Manzini’s dismissal
was unfair,
was because Ms Manzini was on maternity leave when the section
189(3) notice was served on the affected employees.
I accept without
deciding that such conduct may amount to procedural unfairness on the
part of the applicant. BIFAWU does not appear
to dispute that the
applicant had sufficient operational grounds to carry out the
retrenchment exercise. However, BIFAWU avers
that the applicant
agreed with the Employee Consultative Forum – in Ms Manzini’s
absence – to implement the retrenchment
process and that
employees were to re-apply for their jobs in order to be selected to
the new business structure. As I understand
BIFAWU’s case,
Ms Manzini was denied the opportunity to participate in the
process of re-applying for her post. Her
complaint is therefore that
the selection process was unfair as she was excluded from the process
simply because she was on maternity
leave and could not participate
in that process. I find that she has some prospects of success.
[50]
In the exercise of the wide discretion afforded to a presiding
officer in deciding rescission applications, together with BIFAWU’s
reasonable explanation for its absence from the
in limine
hearing and the existence of some prospects of success, and the need
for fairness, I conclude that the
in limine
ruling by
Commissioner Boyce ought to be rescinded and set aside.
Order
[51]
I therefore make the following order:
1.
The rescission ruling made on 21 January
2011 by the first respondent (the second commissioner) under case
number GAJB 2537/10 is
set aside.
2.
The
in limine
ruling on condonation made on 7 October 2010 by Commissioner Boyce
under case number GAJB 2537/10 is rescinded and set aside.
3.
The second respondent is ordered to set
down the
in limine
hearing on condonation before another commissioner.
4.
There shall be no order as to cost.
––––––––––––––––––––––––––––
A.
Landman
Acting
Judge of the Labour Court
APPEARANCES
FOR
THE APPLICANT:
BIFAWU
FOR
THE RESPONDENT:
Crawford
and Associates Attorneys
[1]
66 of 1995,
as amended. (the Act).
[2]
[2007] ZACC
22
;
[2007] 12 BLLR 1097
(CC);
2008 (2) SA 24
(CC); (2007) 28 ILJ
2405 (CC); 2008 (2) BCLR 158 (CC).
[3]
Id at para
110.
[4]
(2004) 25
ILJ 96 (LAC) at paras 21 and 22.
[5]
(JR
1479/2012) [2013] ZALCJHB 38. (
Satinsky
)
[6]
Id at para
47.
[7]
(2002) 23
ILJ 1597 (LC) at para 4.
[8]
(2001) 22
ILJ 1173 (LC) at para 46.
[9]
1999 SALJ
744.
[10]
(2000) 21
ILJ 142 (LAC).
[11]
Id at para
73.
[12]
Satinsky
above
n 5 at para 37.
[13]
(2010) 31
ILJ 1167 (LC) at para 12.