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[2018] ZALCJHB 249
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George and Mossie's Supermarket (Pty) Ltd t/a Pick 'n Pay Brightwater Commons v Commission for Conciliation, Mediation and Arbitration and Others (JR1965/2016) [2018] ZALCJHB 249 (17 July 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR1965-2016
In
the matter between
GEORGE
& MOSSIE’S SUPERMARKET (PTY) LTD t/a
PICK’
n PAY BRIGHTWATER COMMONS
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION AND
ARBITRATION
First
Respondent
COMMISSIONER
FRANCIS TJALE
Second
Respondent
EHAB ABDALLA
Third
Respondent
Heard:
30 May 2018
Delivered:
17 July 2018
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The second respondent (Commissioner) granted the third respondent,
(Mr Abdalla), a default award at the Commission for Conciliation,
Mediation and Arbitration (CCMA) on 27 June 2016, and subsequently
dismissed an application to rescind that award in terms of a
ruling
issued on 12 September 2016.
[2]
The applicant launched this application on 24 October 2016 to review
and set aside both the rescission ruling and the default
award. The
applicant’s Notices in terms of Rule 7A (8) (a), the
supplementary affidavit and transcript of the proceedings
before the
CCMA were served on Abdalla on 29 November 2016. Abdalla’s
erstwhile attorney of record, Mr Johan Kotze passed
away and his
practice fell under the administration of Pranav Jaggan Attorneys.
[3]
An extension of five weeks was then granted to Abdalla to file his
Answering Affidavit in the week ending 13 January 2017. The
deadline
came and went, and the applicant’s attorneys of record on 19
January 2017 sent correspondence to Pranav Jaggan Attorneys
to
establish whether an Answering Affidavit would be filed and served,
and if so when.
[4]
The applicant’s attorneys of record’s contention are that
there was no response to its correspondence, including
a further
reminder in 14 February 2017. On 22 February 2017, Pranav Jaggan
attorneys served Abdalla’s answering affidavit
via electronic
mail despite no agreement in that regard having been reached with the
applicant. A copy was subsequently physically
served on 23 February
2017.
[5]
The applicant’s contention was that the Answering Affidavit was
served some 72 days outside of the time limits set out
in Rule 7A (9)
of the Rules of this Court, and some 36 days outside the extension
granted. A condonation application was not launched
in that regard.
[6]
The applicant had raised preliminary points in regard to the late
filing of the Answering Affidavit, seeking that it be dismissed.
The
matter was set-down for pre-enrolment on 9 June 2017 at which Mr
Goldberg, now Abdalla’s attorney of record, withdrew
the
Answering Affidavit. The matter was nonetheless set-down for a
hearing on 30 May 2018. At these proceedings, Mr Goldberg opposed
the
review application based on the applicant’s own papers.
The
default award and rescission application:
[7]
Abdalla, an Egyptian national, was employed by the applicant as a
receiving clerk in February 2014. He had referred a dispute
to the
CCMA on 23 May 2016, alleging unfair labour practice, unfair
discrimination and unfair dismissal. This according to his
evidence
before the Commissioner, was after the store manager had informed him
in writing that he was not in possession of a valid
work permit, and
should obtain one within thirty days, failing which he would lose his
employment.
[8]
The matter was set-down before the Commissioner on 27 June 2016,
resulting in a default arbitration award in terms of which
it was
found that Abdalla was dismissed, which dismissal was substantively
and procedurally unfair. The Commissioner ordered the
applicant to
pay Abdalla an amount of R102 840.00 as compensation.
[9]
The default award was obtained in circumstances where on the date of
the con/arb hearing, the applicant had sent its representative,
an HR
Manager, Vilakazi, to merely deliver correspondence from its
employer’s organisation (SA) UEO, in which it was alleged
that
its Kevin Smith had received a call from the CCMA in respect of the
set down a day before the hearing, but that no formal
notice of set
down had been received. A request was made to re-schedule the matter.
[10]
The Commissioner upon receipt of the said correspondence then
suggested to Vilakazi that an application for postponement should
be
made. The Commissioner however recorded in the default award that
Vilakazi declined to make any submissions in that regard and
left the
proceedings. This was despite the Commissioner having warned him of
the consequences of walking out. Upon Vilakazi having
walked out, the
Commissioner proceeded to hear the evidence of Abdalla, and issued
the default award.
[11]
The applicant launched an application to rescind the default award.
The matter was set down for a hearing on 24 August 2016,
but despite
the parties being present at the hearing, the Commissioner was
unavailable and had instead dealt with the matter on
the applicant’s
papers. Abdalla did not file opposing papers.
[12]
In the founding affidavit in support of the application for
rescission, the applicant’s Mr. T Vilakazi had averred the
following;
12.1
On 14 June 2016, the applicant received a courtesy call from the CCMA
advising that arbitration
proceedings would be heard the following
day.
12.2
Although it appeared that a notice of set-down was sent to the
applicant at fax number 011 789
9955, such a notice was however
not received and the applicant was not aware of the proceedings.
12.3
The default was not as a result of wilfulness or error on the part of
the applicant, as the fax
line used to transmit the notice was
situated in an open area and unsecured, and was also used by
suppliers, outsourced merchandisers
and promotional persons.
12.4
The applicant had requested the CCMA to address all correspondence to
another secure fax line
or to (SA) UEO.
12.5
Upon receipt of the courtesy call on 14 June 2016, (SA) UEO had
forwarded correspondence to the
CCMA informing it that the
notice of set-down was not received.
12.6
Vilakazi only attended the arbitration proceedings on 15 June 2016 to
ensure that the Commissioner
was in possession of the correspondence
from (SA) UEO) and to highlight the fact that notification of the
proceedings was not received.
12.7
In regards to the facts placed before the Commissioner leading to the
default award, it was averred
that those were untruthful, and the
applicant had prospects of success on the merits if given the
opportunity to defend the matter,
as Abdalla had at no stage raised
grievances or concerns that he may have had with management; that his
services were never terminated
as he had alleged; that in the months
leading up to the dispute, he made himself guilty of misconduct due
to insubordination and
unauthorised absenteeism, was disciplined and
issued with warnings.
12.8
Abdalla’s application for leave on 25 and 26 May 2916 was
declined due to short notice
and short staff compliment of the
applicant. He nonetheless disregarded this fact and proceeded to
absent himself on those days,
and submitted copies of medical
certificates in that regard, indicating that he was ill and booked
off.
12.9
Abdalla was not the only foreign national requested to hand in valid
work permits, and it was
denied that he was ill-treated,
discriminated against and or victimized in any way. He knew that he
had committed misconduct hence
he had referred an alleged
constructive dismissal dispute.
12.10 Even
though Abdalla had referred an alleged constructive dismissal dispute
(under section 186 (2) (b) of the LRA,
the Commissioner nonetheless
dealt with the dispute under section 186 (1) (e) of the LRA, and this
was despite the fact that it
was set down as related to unfair
suspension or disciplinary action.
12.11 Abdalla
had in the referral indicated that the dispute arose on 23 May 2016,
which was untruthful as he had applied
for leave on 25 May 2016 and
was booked off ill from that date.
12.12 Abdalla
had also referred another alleged unfair dismissal dispute under a
different case number, and as at the
filing of the rescission
application, a jurisdictional ruling was still pending before the
CCMA.
12.13 In view
of the above, it was averred that the applicant was not in wilful
default, that it always intended to
oppose Abdalla’s claim and
had not at any stage renounced its defence
[13]
The Commissioner issued a ruling on 12 September 2016, and dismissed
the rescission application. The Commissioner had regard
to the
provisions of section 144 of the LRA, and his approach was that the
test to be applied was whether or not the notice of
set-down was
sent; whether there were reasons given for the default, and whether
there were reasonable prospects of success.
[14]
The Commissioner’s reasoning was that the founding affidavit
failed to mention that Vilakazi after handing in correspondence
from
(SA) UEO was advised to make a formal application for postponement
and was warned prior to walking out of the proceedings.
Thus in the
absence of an application for a postponement, nothing prevented him
from exercising his discretion and proceedings
in the applicant’s
absence. He further concluded that since it could not be established
that the default award was erroneously
made in the applicant’s
absence, the rescission application ought to fail.
The
grounds of review and evaluation:
[15]
The applicant submitted that the Commissioner committed misconduct in
relation to his duties; committed a gross irregularity
in the conduct
of proceedings and exceeded his powers, and arrived at a decision not
justifiable in relation to the reasons given.
[16]
Applications
for rescission or variation at the CCMA or Bargaining Councils are
determined in terms of the provisions of section
144 of the LRA
[1]
.
The approach to rescission applications under section 144 of the LRA
was restated in
Pack
¢n Stack v Commissioner
Khawula
N.O and Others
[2]
,
where
the Labour Appeal Court (per CJ Musi JA) held that;
“…
In
Shoprite Checkers (Pty) Ltd v Commissioner for Conciliation
Mediation and Arbitration and Others
, it was said that;
‘
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
defence. In
Northern Province Local Government
Association v CCMA and Others
[2001] 5 BLLR 539
(LC) at 545,
paragraph [16], it was stated:
“
An applicant for
the rescission of a default judgment must show good cause and prove
that he at no time denounced his defence, 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
defence to the plaintiff’s claims.”’
And,
‘
In
MM Steel Construction CC v Steel
Engineering and Allied Workers Union of SA and Others
,
it was said that;
‘
Those
two essential elements ought nevertheless not to be assessed
mechanistically and in isolation. Whilst 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.’
And,
‘
In
Harris v
ABSA Bank Ltd t/a Volkskas,
Moseneke J set out the principles
that ought to guide a court in the determination whether a party was
in wilful default. He said
the following:
‘
Before
an applicant in a rescission of judgment application can be said to
be in “wilful default” he or she must bear
knowledge of
the action brought against him or her and of the steps required to
avoid the default. Such an applicant must deliberately,
being free to
do so, fail or omit to take the step which avoid the default and must
appreciate the legal consequences of his or
her actions.’ (Full
citations omitted)
[17]
As appears from the rescission ruling, the Commissioner having
had regard to the provisions of section 144 of the LRA nonetheless
only made a finding based on the fact that it had not been
established that the default award was erroneously sought or made in
the absence of the applicant.
[18]
An arbitration award like an order of court is
erroneously
granted if at the time of granting it, there existed facts which the
Commissioner had not been aware of, and of which
had the Commissioner
been aware of, would not have granted it. Equally so, an arbitration
award
will also be erroneously granted if it is shown that
there was an irregularity in the proceedings, or that the
Commissioner did
not have the competency to grant it.
[19]
To
the extent that the provisions of section 144 (a) of the LRA as
applicable to the CCMA are almost a replica of the provisions
of
section 165 (a) of the LRA as applicable to this Court, and since the
latter provisions were interpreted to mean that
whether
the court grants a rescission application under that provision did
not depend upon the applicant showing good or sufficient
cause, and
that it was simply enough if the order was erroneously sought or
granted in the absence of that party
[3]
,
I see no reason why the same principle should not be applicable under
section 144 of the LRA.
[20]
What the above therefore implies is that in a rescission
application before the CCMA, where a Commissioner makes a finding
that
an award was erroneously sought or made within the meaning of
section 144 (a) of the LRA, the enquiry ends at that point, and
rescission
ought to be granted without the need to consider whether
good cause under section 144 (d) was shown. For example, if it is
established
that the other party was not properly notified of the
proceedings, a fact which
the Commissioner was not
aware of, and of which had the Commissioner been aware of, would not
have granted the award, or
it is shown that there was an
irregularity in the proceedings, or that the Commissioner did not
have the competency to grant the
award, the enquiry ends at that
point, and rescission ought to be granted.
[21]
Where
however it has not been established that the award was erroneously
sought or granted, the enquiry then moves to other considerations
under good cause as called upon by the provisions of section 144 (d)
of the LRA. In this regard, the Commissioner is obliged to
consider
whether a reasonable and
bona
fide
explanation for the default was proffered, whether
the applicant has demonstrated a
prima
facie
defence
to the claim; whether it was demonstrated by the applicant that at no
stage was its defence renounced, whether there was
a serious
intention to proceed with the case, whether the application was
brought
bona
fide
,
and what the considerations of fairness dictated to avoid any
injustice being done
[4]
. As
stated in
MM
Steel Construction CC v Steel Engineering and Allied Workers Union of
SA and Others
[5]
,
all of these elements are not to be assessed
mechanistically
and in isolation, but must be weighed together with relevant factors
in determining whether it should be fair and
just to grant the
indulgence.
[22]
The starting point with the Commissioner’s ruling was that he
found that it was not established that the default award
was
erroneously sought or made. On the facts of this case, and in the
absence of a response to the rescission application, it is
not clear
on what basis the Commissioner concluded that proper notification was
received by the applicant. In fact, nowhere in
the ruling does the
Commissioner deal with that issue, other than to restate that he had
warned Mr Vilakazi of the consequences
if he walked out.
[23]
The applicant’s case was that the notification was not received
timeously, and that the only notification from the CCMA
was via
telephone contact a day prior to the proceedings. The Commissioner
seemed to have been persuaded by the presence of Mr
Vilakazi at the
proceedings, that indeed the applicant was properly notified, when in
fact that was not the case. The applicant
had in the founding
affidavit explained the circumstances that led to Mr Vilakazi being
at the hearing. It is appreciated that
the applicant could have done
more than merely send a messenger to the hearing to deliver a letter
explaining why it was unable
to attend those proceedings. Be that as
it may, even if for reasons that do not appear in the ruling the
Commissioner was not convinced
that proper notification had not been
received, there was no basis for a conclusion to be reached that
there was wilful default
on the part of the applicant, especially
since there was an explanation as to the reason the matter could not
proceed.
[24]
What is
further clear from the rescission ruling is that the Commissioner’s
enquiry ended at a point where he was satisfied
that the default
award in question was not erroneously sought or made, which approach
in
so far as he did not consider whether good cause was shown, is a
failure to apply his mind to an important principle of law,
which is
a reviewable irregularity
[6]
.
[25]
A reasonable decision–maker would have applied his mind
carefully to whether good cause had been shown. This would have
been
done by not only determining whether there was a reasonable
explanation proffered, but by a further a consideration and weighing
of all the facts placed before him. In this regard the Commissioner
would have been required to determine whether on those facts
it
should be concluded that the applicant’s explanation for the
default was not
bona fide,
whether there was a
bona fide
defence to Abdalla’s claims, and whether the applicant had
at any stage indicated an intention to renounce its defence. These
considerations are an integral part of an enquiry which the
Commissioner clearly failed to have regard to.
[26]
In the absence of an answering affidavit, and in view of the
applicant’s detailed averments in regard to the default
and the
merits, there was no reason for the Commissioner to reject the
applicant’s contention that it was only informed of
the
proceedings a day before they took place via telephone call, or that
it had a
bona fide
defence to Abdalla’s claim, or that
the rescission application was made
bona fide
, or that there
was intention on the part of the applicant to renounce its defence.
Nowhere in the ruling does the Commissioner
indicate the reasons why
all of these detailed averments as summarised somewhere in this
judgment were rejected.
[27]
Before the Commissioner, and for the purposes of the rescission
application was a detailed explanation in regards to the default
(even if Vilakazi attended to present correspondence). The mere fact
that Vilakazi in his founding affidavit in support of that
application had not mentioned that he was asked to make an
application for a postponement is inconsequential, as the
correspondence
from (SA)UEO had indicated that the matter should be
re-scheduled. Despite making reference to the provisions of section
138 (5)
(b) of the LRA and the discretion conferred upon him, he
nonetheless stated that the discretion was exercised based on the
fact
that Vilakazi was warned that proceedings would continue in his
absence.
[28]
It
nonetheless gets worse in that as further submitted on behalf of the
applicant, even if Vilakazi had stayed in the proceedings
and made a
‘formal’ application for a postponement as suggested by
the Commissioner, the latter had nonetheless indicated
to him that he
would proceed with the arbitration and would refuse to consider any
postponement (application)
[7]
in
any event.
[29]
In circumstances where a Commissioner suggests to a party to bring an
application, and in the same breath informs that party
that the
application would not be considered in any event, the message is
clear that a fair and unbiased hearing would be elusive.
This clearly
constitutes gross misconduct in relation to the duties of a
Commissioner as an arbitrator within the meaning of section
145 (2)
(a) (i) of the LRA. Furthermore, it cannot in these circumstances be
said that a discretion whether or not to continue
with the
proceedings was judicially exercised as the Commissioner contended in
paragraph 17 of his ruling.
[30]
In regards to other factors which the Commissioner failed to take
into account, and in the absence of an answering affidavit,
Vilakazi
had made detailed averments as to the reason why Abdalla was not
dismissed, victimised or discriminated against as he
had alleged.
Detailed averments were made as to why it could not be said that the
application was not made
bona fide
, or why it could not be
said that the applicant had renounced its defence. As to the reason
the Commissioner ignored those factors
is unknown.
[31]
The
applicant further contended that the Commissioner exceeded his powers
by proceeding with the arbitration in its absence, in
that where a
matter is set down as a con/arb, in terms of Rule 17 (4) of the CCMA
Rules, if a party fails to appear or be represented
at a hearing, the
Commissioner must conduct the conciliation on the date in the
notification issued in sub-rule (1)
[8]
.
[32]
Rule 17 (4) of the CCMA Rules must be read with sub-rule (5), which
provides that it applies irrespective of whether a party
has lodged a
notice of objection in terms sub-rule (2). It must also be read with
sub-rule (9), which provides that if the
arbitration does not
commence on the date specified in terms of the notice in sub-rule
(1), the commission must schedule the matter
for arbitration either
in the presence of the parties or by issuing a notice in terms of
Rule 21.
[33]
Clearly the
provisions of Rule 17 (4) cause confusion, particularly when read
with the provisions of section 191 (5A) of the LRA
[9]
.
The conundrum was also considered by Steenkamp J in
Pioneer
Foods (PTY)Ltd t/a Sasko Milling and Baking (Duens Bakery) v
CCMA and Others
[10]
,
who
held that Rule 17(4) cannot be reconciled with provisions of
section 191(5A)(c) which are peremptory in that ‘the
commissioner must commence the arbitration immediately after
certifying that the dispute remains unresolved if no party has
objected
to the con-arb’. Steenkamp J further held that;
’
34.
I find myself in respectful disagreement with the learned acting
judge (In
Inzuzu
). As I have set out above, rule 17(4) must be
read with, and is subordinate to, section 191(5A)(c)
35.
The solution may lie in the word "commence". In terms of
section 191(5A)(c), the
Commissioner
must commence
the
arbitration immediately after certifying that the dispute remains
unresolved if no party has objected to con-arb. It does
not state
that the arbitration must be completed on that occasion.
36.
The correct interpretation, having regard to the plain language of
section 191(5A)(c) and
the apparent scope and purpose of rule 17 in
that context, seems to me to be the following:
36.1
If no party has objected to con-arb, the Commissioner must conduct
the conciliation on the scheduled
date, even if a party fails to
appear or be represented;
36.2
In those circumstances, there can obviously be no conciliation in the
real sense. The Commissioner
will then inevitably issue a certificate
that the dispute remains unresolved.
36.3
The Commissioner must then
commence
the arbitration.
There is no peremptory provision that he or she must conclude it.
36.4
Having commenced the arbitration, the Commissioner retains a
discretion to adjourn it to
a later date. This could be for a variety
of reasons – for example, to enable a witness to attend the
proceedings; or to
provide the party who did not attend or who was
not represented to attend or to obtain representation.”
[34]
I align
myself with the approach of Steenkamp J in
Pioneer
Foods
[11]
to the extent that it recognises the Commissioner’s discretion
even if the provisions of section 191(5A) were to be strictly
applied. The approach in
Inzuzu
[12]
appears to have ignored the principle that the Rules of the CCMA or
of this Court for that matter, as subordinate legislation,
must yield
to the LRA and to the Constitution
[13]
,
and had thus considered the provisions of Rule 17 (4) in isolation,
when these should have been read together with those of section
191
and 138 of the LRA.
[35]
The
discretion referred to by Steenkamp J in my view is grounded in the
provisions of section 138 (5) (a) and (b) of the LRA in
the sense
that even if a matter is initially set down as a con/arb under the
provisions of section 191 (5A) of the LRA, once a
certificate of
outcome was issued and the matter proceeds to arbitration, the
general provisions for arbitration proceedings under
section 138
takes effect
[14]
, and it
follows that both provisions must be read in tandem.
[36]
What this therefore implies is that in this case, once Vilakazi had
indicated that the applicant was not in a position to attend
the
proceedings, the Commissioner ought to have conciliated the matter,
where that was possible. To the extent that the matter
could not be
resolved, nothing prevented the Commissioner from exercising his
discretion and postponing the matter to another date.
As to whether
an application for a postponement ought to have been made has been
dealt with elsewhere else in this judgment. However,
to the extent
that the Commissioner had indicated that he would not even consider
an application for a postponement, and had simply
proceeded in
hearing the matter in the absence of the applicant, it is more a
question of the Commissioner not only having committed
misconduct in
relation to his duties, but also having failed to properly exercise a
discretion conferred upon him in accordance
with the provisions of
section 138 (5) of the LRA.
[37]
In conclusion, it is reiterated that the facts of this case are such
that even if the Commissioner was not convinced that the
applicant
had not been properly notified of the proceedings, there was nothing
placed before him to indicate that the rescission
application was
made not
bona fide
; or that the applicant clearly had no
bona
fide
defence to Abdalla’s claim; and or had renounced its
defence to Abdalla’s claim, even if Mr Vilakazi had walked out
of the proceedings. In the end, the grounds upon which rescission was
sought as placed before the Commissioner, dictated that it
be
determined that at the very least, just cause had been shown, and for
a finding to be made in favour of the granting of rescission.
[38]
In the circumstances, it follows that the Commissioner’s ruling
ought to be set aside on account of it not falling within
the band of
reasonableness. In the light of the full record and all available
material placed before the Court, I see no reason
why this matter
should be remitted back to the CCMA to be considered afresh. The
Court is accordingly in a position to substitute
the Commissioner’s
ruling.
[39]
I have further had regard to the issue of costs. I appreciate that
the filing and withdrawal of the answering affidavit was
prejudicial
to the applicant. However, upon a consideration of the requirements
of law and fairness, and the overall circumstances
of
this
case, I do not deem a cost order to be appropriate. Accordingly, the
following order is made;
Order:
1.
The rescission ruling issued by the Second Respondent under
case
number GAJB11205-16 dated 12 September 2016 is reviewed, set aside,
and substituted with an order that;
a)
The default arbitration award issued on 27 June 2016 under case
number GAJB11205-16 is rescinded.
b)
The CCMA is directed to enrol dispute between the parties for
arbitration.
2.
The default award issued by the Second Respondent dated 27 June 2016
is set aside.
3.
There is no order as to costs.
____________________
E
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Mr HE Duvenage
of Duvenage Attorneys
For
the Third Respondent: Mr A Goldberg of Goldberg
Attorneys
[1]
Section 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.
[2]
(2016)
37 ILJ 2807 (LAC)
at para 11 – 13.
[3]
F &
J Electrical CC v MEWUSA obo E Mashatola and Other
[2015] ZACC 3
;
2015 (4) BCLR 377
(CC); (2015) 36 ILJ 1189 (CC);
[2015] 5 BLLR 453
(CC) at para 27.
[4]
Satinsky
128 (PTY) LTD t/a Just Group Africa v DRC and Others
Case no: JR 1479 / 2012 [2013] ZALCJHB 38 (26 February 2013), at
para 23
.
[5]
1994)
15 ILJ 1310 (LAC).
[6]
See
Professional
Transport Workers Union v Paul Malema
(JA67/12)
[2014]
ZALAC 53
(7 October 2014) at para 25.
[7]
Page
1 -2 of the transcribed record of proceedings.
[8]
In
reliance to
Inzuzu
I.T Consulting (Pty) Ltd v CCMA & Others
[2010] 12 BLLR 1288
(LC) at
2645D-E,
where
it was held that;
‘
The
provisions of CCMA rule 17 make it clear that a commissioner is not
empowered to proceed with the arbitration in circumstances
where one
of the parties fails to appear at con- arb proceedings. When a party
is in default of appearance, the commissioner
concerned may deal
with the conciliation proceedings, but not the arbitration. The
arbitration must be scheduled for a later
date…”
[9]
Section 191 (5A) provides;
“
Despite
any other provision in the Act, the council or Commission must
commence the arbitration immediately after certifying that
the
dispute remains unresolved if the dispute concerns –
(a) the
dismissal of an employee for any reason relating to probation
(b) any
unfair labour practice relating to probation
(c) any
other dispute contemplated in subsection (5)(a) in respect of which
no party has objected to the matter being
dealt with in terms of
this subsection."
[10]
C 265/10) [2011] ZALCCT 62 (11 March 2011)
[11]
Supra
.
[12]
Supra
at fn 9.
[13]
See
September
and Others v CMI Business Enterprise
CC
(2018)
39 ILJ 987 (CC);
[2018] 5 BLLR 431
(CC) fn 55 at page 22
[14]
See
also
Modikwa
Platinum Mine (Pty) Ltd v Commission for Conciliation Mediation and
Arbitration and Others
(LC)
[2012] 6 BLLR 578
(LC); (2012) 33 ILJ 1733 (LC) at para 11 -
15.