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[2018] ZALCJHB 68
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Senator International Logistics (Pty) Ltd v Raphela NO and Others (JR1146/15) [2018] ZALCJHB 68 (22 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JR1146/15
In the matter between:
SENATOR
INTERNATIONAL LOGISTICS (PTY)
LTD
Applicant
and
COMMISSIONER T RAPHELA
N.O
First
Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
Second
Respondent
BONGANI
VINCENT
NGWENYA
Third
Respondent
Heard:
15 February 2018
Delivered:
22 February 2018
JUDGMENT
MAHOSI. J
Introduction
[1]
This is an application in terms of section 158(1)(g) of the Labour
Relations Act
[1]
(LRA) in
terms of which the applicant seeks an order to review and set aside
an award granted by the first respondent (the
commissioner) under the
auspices of the second respondent the Commission for Conciliation,
Mediation and Arbitration (CCMA) under
case number GAJB20566/14 on 28
May 2015, in terms of which the commissioner dismissed an application
by the applicant for the rescission
of an award granted by default on
2 March 2015 against the applicant and in favour of the third
respondent (the employee).
[2]
The applicant seeks that the default award be rescinded,
alternatively that the applicant’s application for the
rescission
of the default award be remitted back to the CCMA for
determination afresh before a commissioner other than the first
respondent.
[3] The applicant further
seeks condonation for the late filing of the review application.
Background
[4] The employee was
employed by the applicant as a driver from April 2013 until his
dismissal on 29 September 2014. The reason
for his dismissal was that
he committed an act of misconduct in that he allegedly deviated from
his routes despite numerous previous
verbal warnings. Dissatisfied
with his dismissal, the employee referred his dispute to the CCMA.
The dispute could not be resolved
through conciliation as the
applicant was not in attendance. The arbitration was scheduled for 17
February 2015. At the arbitration,
only the employee was in
attendance. The commissioner proceeded with the arbitration in the
absence of the applicant and issued
a default award on 2 March 2015.
In his arbitration award, the commissioner found that the employee’s
dismissal was substantively
and procedurally unfair. Consequently,
the applicant was ordered to pay the employee an amount of R33000.00,
being compensation
equivalent to his six months’ remuneration.
[5] On 24 March 2015, the
applicant filed an application before the commissioner seeking
rescission of the aforementioned default
award. The rescission
application was dismissed on the basis that the applicant failed to
show good cause for its failure to attend
the arbitration proceedings
despite being properly notified of the date and time. It is this
rescission ruling that the applicant
seeks to have reviewed and set
aside.
Condonation
[6] The applicant became
aware of the default award on 11 June 2015, and the review
application was filed on 21 August 2015, almost
a month out of the
prescribed time. Essentially, the applicant’s reason for not
filing the review application timeously is
that its attorney failed
to diarise the matter properly, and was out of the country for the
period 10 July 2015 to 21 July 2015.
The employee opposed the
condonation application on the basis that there is no reasonable or
satisfactory explanation for the delay
and that no proper case for
condonation has been made.
[7]
In terms of Rule 12(3) of the Labour Court Rules, the court may, on
good cause shown condone the non-compliance with any period
prescribed by these Rules. This Court has consistently followed the
well-known case of
Melane
v Santam Insurance Co Ltd.
[2]
The
factors that need to be considered are the degree of lateness, the
explanation thereof, the prospects of success and the importance
of
the case. The Labour Appeal Court (LAC) in
NUM
v Council for Mineral Technology
[3]
emphasised that the two crucial elements for deciding on the issue of
condonation are prospects of success and a good explanation
for the
delay. According to the court:
‘…
Without
a reasonable and acceptable explanation for the delay, the prospects
of success are immaterial, and without prospects of
success, no
matter how good the explanation for the delay, an application for
condonation should be refused.’
[8] The applicant’s
delay in filing the review application is not excessive. In view of
the evaluation of the merits of the
review application, I am
satisfied that, considering all factors relevant to condonation
application, the condonation for the late
filing of the review of
rescission ruling should be granted.
Rescission Ruling
[9]
The commissioner considered the reasons for the applicant’s
failure to attend the arbitration and summarissed them as
follow:
‘…
The
employer said that she became aware of the award on the 14 March
2015. She received the notice to attend the hearing on the
21 January
2015. The employer sent documents to the CCMA on the 4 February 2015
to a CCMA official. The employer said she was under
the impression
that the CCMA were satisfied about the documentation. She further
said that it was a genuine mistake that since
documents were
submitted there was no need to attend the arbitration hearing. The
employer said the prospects of success are good
in succeeding with
the case.’
[4
[10]
The commissioner referred to the provisions of section 144 of the LRA
which deal with the grounds for the rescission of an
arbitration
award or ruling. He then made the following findings:
‘
(6) It is
evident that the employer was notified about the date of the hearing
and she failed to attend the hearing. I am not convinced
that the
employer could have not been aware that she was to attend the CCMA
and defend her case and further that sending documentations
through
emails was sufficient not to appear before the Commission. It is a
practice that if any person is invited to a court of
law, he/she must
appear in person. It is evident that failure to attend was to
undermine the process of the CCMA or deliberate
intention to delay
the case. In terms of the prospects of success I am satisfied with
the awards issued. I further find that the
employee will suffer more
prejudice than the employer as this matter was heard in 2014. The
applicant was dismissed on the 29 August
2014 and given a week's
notice which is the 29 September 2014.
(7) I have perused
the file and I am satisfied that the employee has complied with all
the requirements to serve the employer with
the referral. I thus find
that the employer has failed to show cause for non-attendance.’
[5]
[11] It is this ruling
that the applicant seeks to review and set aside.
Grounds for review
[12]
The applicant seeks to have the commissioner’s rescission
ruling reviewed and set aside on the basis that the commissioner
acted unreasonably in his finding that the applicant failed to show
good cause for its non-attendance at the arbitration
.
Further that he failed to consider the evidence presented by the
applicant regarding the fairness of the employee’s dismissal.
Applicable law and
analysis
[13] Section 144 of the
LRA deals with variations and rescissions, and it provides as
follows:
‘
144.
Variation and rescission of arbitration awards and rulings
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;
(b) In which
there is an ambiguity, or an obvious error or omission, but only to
the extent of that ambiguity, error or omission;
(c) Granted as a
result of a mistake common to the parties to the proceedings; or
(d) Made in the
absence of any party, on good cause shown.’
[14]
The applicant's case is that the commissioner failed to consider
“good cause” as required by the judgment in
Shoprite
Checkers (Pty) Ltd v CCMA and Others.
[6]
In the said case, the LAC interpreted section 144 of the LRA
and stated as follows:
‘
[33]
As there are circumstances which can be envisaged, such as in the
present case, and which fall outside
the circumstances referred to
section 144 of the Act in such cases both logic and common sense
would dictate that a defaulting
party should, as a matter of justice
and fairness be afforded relief. It follows, that if one was to hold
that section 144 of the
Act does not allow for the rescission of an
arbitration award in circumstances where good cause is shown and that
an applicant
who seeks rescission of an arbitration award was
compelled to bring the application within the limited circumstances
allowed by
the wording of the section it could lead to unfairness and
injustice. In my view this would be inconsistent with the spirit and
the primary object of the Act referred to above. Furthermore, I am of
the view that to interpret section 144 of the Act so as to
include
“good cause” as a ground for rescission is to give the
Act an interpretation that is in line with the right
provided for in
section 34 of the Constitution because, if section 144 is not
interpreted in that way, a party who can show good
cause for his
default would be denied an opportunity to exercise his right provided
for in section 34 of the Constitution despite
the fact that he may
not have been at fault for his default. That could be a grave
injustice.’
[15] The LAC further
stated that:
‘
[35] The
test for good cause in an application for rescission normally
involves the consideration of at least two factors. Firstly,
the
explanation for the default and secondly whether the applicant has
a
prima
facie defense
.
In
Northern
Province Local Government Association v CCMA and Other
[2001]
5 BLLR 539
(LC)
at 545 at para 16
it was stated:
“
An
application for the rescission of a default judgment must show good
cause and prove that he at no time denounced his defense,
and that he
has a serious intention of proceeding with the case. In order to show
good cause an applicant must give a reasonable
explanation for his
default, his explanation must be made
bona
fide
and he must show that he has a
bona
fide
defense to the plaintiff’s claims.”
[36] In
MM Steel Construction
CC v Steel Engineering and Allied Workers Union of SA and Others
(1994) 1 5 ILJ 1310 (LAC) at 1311 I –
132a
Nugent J
had this to say: -
“
These
two essential elements ought nevertheless not to be assessed
mechanistically and in isolation. While the absence of one of
them
would usually be fatal, where they are present they are to be weighed
together with relevant factors in determining whether
it should be
fair and just to grant the indulgence
.”
[16] In this case, it is
apparent that the commissioner was satisfied that the applicant was
notified about the date of the arbitration
hearing. However, the
applicant failed to attend. It was the applicant’s submission
that its non-attendance was based on
a
bona fide
but mistaken
belief that documentation submitted to the CCMA by e-mail would be
taken into account by the commissioner and that
it would be
sufficient to have the employee’s referral dismissed. In this
regard, the commissioner held that:
‘…
I am
not convinced that the employer could have not been aware that she
was to attend the CCMA and defend her case and further that
sending
documentation through email was sufficient not to appear before the
commission…’
[17]
The commissioner did not consider the second aspect of the test. On
the prospect of success, he simply stated that he was satisfied
with
the award issued. There is no indication that he considered the
applicant’s submissions on its prospects of success
in the
arbitration. As such, the commissioner failed to apply the test for
good cause as set out by the LAC in
MM
Steel Construction CC
v
Steel Engineering and Allied Workers Union of SA and Others
judgment.
In so doing, he committed a gross irregularity.
[18]
In light of the above, I am of the view that the applicant succeeded
in making out a case that the commissioner’s finding
that the
applicant failed to show good cause is a finding which is not
supported by evidence and/or reasons contained in the ruling.
Therefore, the commissioner committed a reviewable irregularity, and
his ruling stands to be set-aside on this ground alone. To
remit the
rescission application to the CCMA for a fresh consideration would be
against the principle of speedy resolution of disputes.
There is
enough material before this Court to substitute the decision of the
commissioner.
[19]
In its application for rescission, the applicant submitted that it
has good prospects of success in that the employee contravened
its
valid and reasonable rule that he was aware of. The applicant further
submitted that the employee was dismissed pursuant to
a disciplinary
process that started with a verbal warning through to a disciplinary
hearing that was held on 29 August 2015, which
was disputed by the
employee.
I
agree with the employee’s submission that it was careless of
the applicant to have relied on the mistaken belief that sending
documents to the CCMA would exempt it from attending the arbitration
hearing despite the clear wording of the notice of set down.
The
applicant’s explanation for its default is clearly
unreasonable.
[20]
Although the applicant failed to provide good reasons for its
non-attendance of the arbitration hearing, I am satisfied that
it has
reasonable prospects of success in the arbitration proceedings. In
the premise, fairness dictates that the matter should
be set down
again for arbitration to enable both parties to state their cases.
[
21]
With regard to costs, taking into account the requirements of law and
equity, I believe this is a matter in which there should
be no order
as to costs.
[22]
In the circumstance, I make the following order:
Order
1. The rescission ruling
dated 28 May 2015, handed down by the first respondent acting under
the auspices of the second respondent
under case number GAJB20566/14
is reviewed and set aside and substituted with the following ruling:
1.1 The
default
arbitration award issued under GAJB20566/14 dated 2 March 2015 is
rescinded.
2.
The
second respondent is directed to set down the unfair dismissal
dispute referred by the third respondent for arbitration
to
be heard by an arbitrator other than the first respondent to
determine whether or not the dismissal of the third respondent was
procedurally and substantively unfair.
3. There is no order as
to costs.
__________________
D.
Mahosi
Judge
of the Labour Court of South Africa
Appearances
For the Applicant:
Advocate H P West
Instructed
by
Nolans Inc
For the
Respondent:
Advocate Henno Viljoen
Instructed
by
Mervyn Taback Inc
[1]
Act
66 of 1995 as amended.
[2]
1962
(4) SA 531
(A)
.
[3]
[
1999
]
3
BLLR 209
(LAC)
at
para 10.
[4]
Index
to pleadings, page 8, para 2 of arbitration award.
[5]
Index
to pleadings, page 9, para 6 and 7 of arbitration award.
[6]
[2007]
10 BLLR 917
(LAC) at para 33.