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[2018] ZALCJHB 282
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VEA Road Maintenance and Civils (Pty) Ltd v Dekker NO and Others (JR1252/16) [2018] ZALCJHB 282 (4 September 2018)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 1252/16
In the matter between:
VEA ROAD MAINTENANCE &
CIVILS (PTY) LTD
Applicant
and
LEN DEKKER
N.
O
First
Respondent
COMMISSION FOR
CONCILIATION MEDIATION
AND
ARBITRATION
Second
Respondent
SOLIDARITY obo J.D.M
BREDENHANN
Third Respondent
Heard:
2 May 2018
Delivered:
4 September 2018
JUDGMENT
TLHOTLHALEMAJE, J:
Introduction and background:
[1] Following a referral of an alleged unfair dismissal dispute to
the second respondent, the Commission for Conciliation
Mediation and Arbitration (CCMA) by Solidarity on behalf of its
member, (Bredenhann), the matter was then scheduled for arbitration
on 16 March 2016. At those proceedings, the applicant
VEA Road Maintenance & Civil (Pty) Ltd (‘VEA’),
was
to be represented by counsel (Adv. Le Grange). Attempts to settle the
dispute by the parties proved unsuccessful. Counsel for
VEA excused
himself before the proceedings could commence, in view of not having
his witnesses available.
[2] The first respondent (Commissioner), then proceeded to hear the
matter in default, and found that the dismissal of Bredenhann
on
31 August 2015 on the grounds of incapacity was
substantively and procedurally unfair, and awarded him an amount of
R315 000.00 as compensation. Aggrieved by the default
arbitration award, VEA filed an application for rescission which
Solidarity
opposed. That application was dismissed, leading to the
review application before the Court.
[3] The evidence of Bredenhann leading to the default arbitration
award as summarised by the Commissioner is as follows:
3.1. He was employed on a fixed term contract by the VEA as a Traffic
Safety Officer. VEA is a road construction company, which
was engaged
as a sub-contractor by Raubex Group Ltd.
3.2. During 2004, he was involved in a motor accident, which caused
him psychological trauma. He was thereafter diagnosed with
Post-Traumatic Stress Disorder, and was further advised against
exposing himself to future motor collision scenes because it may
aggravate his condition. This meant that he could fulfil some of his
obligations as a Traffic Safety Officer, but could not attend
to
motor vehicle collisions that had resulted in severe injuries and/or
fatalities.
3.3. During July 2015, his medical condition was aggravated by
other factors such as the passing of his mother, and the
non-accommodative
work environment, which ultimately led to his
hospitalisation.
3.4. On 11 August 2015, Mr R Scheepers a Director of VEA
wrote a letter to him which read:
“…
Your
Meeting with Mr Regardt Scheepers this morning refers.
As
per your doctor’s order due to your state of nature and illness
regarding trauma, you both agreed that your services with
VEA Road
Maintenance & Civils (Pty) Ltd will come to an end at
31 August 2015 and your final salary will be paid
to you on
month end August 2015.
…”
3.5. Bredenhann disputed that there was such an agreement or that his
medical doctor had endorsed the termination of his services.
His last
day in the employ of VEA was on 31 August 2015.
[4] Aggrieved by his dismissal, Bredenhann with the assistance of
Solidarity then approached the CCMA with an alleged unfair dismissal
dispute, which led to the default arbitration award that VEA
sought to rescind. The Commissioner on 2 June 2016
issued a
ruling dismissing the rescission application.
Rescission ruling:
[5] The founding affidavit in support of the rescission application
before the CCMA was deposed to by VEA’s director, Regardt
Scheepers who had averred the following;
5.1 VEA was not in default and that there was an ‘excellent and
reasonable explanation’ for not attending the proceedings.
Upon
receipt of the notice of enrolment of the con/arb hearing, VEA had
instructed its previous attorneys of record to defend the
claim. The
attorneys of record in turn briefed counsel to appear on its behalf.
5.2 He (Scheepers), together with Ms A Henning were to be witnesses
at the arbitration proceedings. He could however not be at
the
proceedings as he had to attend an ‘urgent tender meeting’
in Zeerust on short notice. He averred that if he had
failed to
attend the tender meeting, the company would have forfeited the
possibility of securing a successful tender. A further
complication
was that on 18 March 2016, Ms Henning, who would have been
required to testify at the arbitration proceedings
resigned from VEA.
Counsel for VEA was therefore compelled to withdraw from the dispute,
as none of the witnesses were available
to give evidence in support
of its case at the con/arb. In this regard, it was submitted that the
above factors were indicative
of the fact that at no point did VEA
renounce its defence against Bredenhann’s claim.
5.3 In respect of the prospect of success, it was contended that
there were reasonable prospects of success in that Bredenhann
was not
dismissed but that the employment relationship was terminated in
terms of a mutual separation agreement.
[6] The Commissioner in dismissing the rescission application
reasoned as follows;
6.1. The arbitration proceedings commenced on 16 March 2016
at 12:00. At that time, he (Commissioner) was preoccupied
with
another unrelated dispute. Counsel for VEA together with officials
from Solidarity were informed that proceedings would commence
at
14:00 once the Commissioner had disposed of the other dispute.
6.2. When the Commissioner returned at the scheduled time, he (the
Commissioner) was informed by Solidarity’s officials that
Counsel for VEA had informed them that he was not properly briefed on
the matter, and further that VEA’s witnesses were unable
to
attend the proceedings. Counsel was therefore instructed
telephonically to withdraw/excuse himself from the matter based on
those factors.
6.3. The Commissioner appreciated VEA’s averments that Counsel
had been briefed to attend to the matter but as a consequence
of the
non-availability of witnesses, he was compelled to withdraw. The
Commissioner however stated that in such circumstances,
VEA ought to
have briefed Counsel who was already present, to appear and explain
to the CCMA, its predicament in regards to the
unavailability of its
witnesses, and to seek a postponement of the proceedings, rather than
simply abandoning the proceedings.
In the absence of Counsel having
requested a postponement, good cause had not been show for the
default.
6.4. The Commissioner further noted that in seeking a rescission,
reliance was placed by VEA on the provisions of section 144(d)
of the
LRA, which require that good cause be shown and that one of the
factors to be considered in that respect was whether there
was a
bona
fide
defence against the main claim.
6.5. VEA had contended that there was no dismissal but rather a
mutual separation, and the Commissioner found that there was no
substance in VEA’s contention that there was a
bona fide
defence, as no such averments were made to sustain that contention.
In the result, the Commissioner found that the rescission application
did not comply with the provisions of section 144(d) of the LRA and
dismissed it.
Grounds of review and the submissions:
[7] VEA’s grounds of review centred around the Commissioner’s
characterisation of the dispute he was called upon to
resolve. Its
contention was that the Commissioner misconstrued the nature of the
rescission application, in that, he dealt with
the application before
him in terms of the provisions section 144(d) of the LRA, as opposed
to those of section 144(a) of the LRA.
It was submitted that the
Commissioner committed an error in facts and in law, by concluding
that the provisions of section 144(a)
of the LRA did not apply to the
application before him.
[8] VEA further submitted that the Commissioner’s conduct
amounted to a misdirection in respect of the applicable legal
principles and that such misdirection constitutes an irregularity as
contemplated in section 145(2) of the LRA. This argument was
premised
on the view that a rescission application ought to be granted where
the default arbitration award was erroneously sought
or granted in
circumstances where at the time that it was issued, there were facts
that existed, which the Commissioner was not
aware of, and of which h
had he been aware of, he would not have granted the award.
[9] Notwithstanding the above contentions, VEA further argued that
the submissions placed before the Commissioner supported the
view
that even if its attorneys of record and Counsel were negligent in
failing to make an application for postponement of the
arbitration
proceedings, such a failure could not have been to its determinant,
as it was not wilful, nor was there an intention
to abandon its
defence before the CCMA.
[10] To the extent that the Commissioner had considered the element
of
good cause
as contemplated in section 144(d) of the LRA,
VEA further submitted that the Commissioner had unsatisfactorily done
so, resulting
in an unsustainable outcome, specifically since no
assessment was made of its prospects of success on the merits of the
main dispute.
[11] Solidarity on behalf of Bredenhann opposed the review
application on a variety of grounds including that;
11.1. Once counsel was instructed to withdraw from the matter, VEA
would have been expected to make an application for postponement
but
had failed to do so. Such a failure ought to render any application
for rescission devoid of merits.
11.2. The withdrawal of Counsel from the proceedings not only
resulted in the abandonment of VEA’s defence, but VEA had also
reconciled itself with the possibility of a default arbitration award
being issued.
11.3. VEA had other alternatives available to it other than
withdrawing from the proceedings for example Counsel could have moved
for an application for postponement from the bar.
11.4. It is was not correct that there were facts which the
Commissioner was unaware of at the time the default arbitration was
issued and that this was apparent from the rescission ruling.
Evaluation:
[12] As mentioned above, central to the complaint in respect of the
rescission ruling is that the Commissioner committed an irregularity
by misconceiving the nature of inquiry before him, which resulted in
the Commissioner arriving at an unreasonable outcome. This
complaint
pertains to which provisions of section 144 of the LRA the
Commissioner had placed emphasis on.
[13] Under the provisions of section 144 of the LRA, Commissioners
enjoy a wide discretion to rescind or vary award or ruling in
the
following circumstances;
a)
If it appears to the
Commissioner that the arbitration award was erroneously sought or
granted in the absence of the other party;
[1]
b)
there is an ambiguity,
material error or omission;
[2]
c)
where there is a common
mistake to the parties to the proceedings
[3]
;
or
d)
where the award was
issued in the absence of any party and good cause is demonstrated for
the default.
[4]
[14] VEA’s case as I understand it is that the Commissioner
erred and therefore committed an irregularity by finding that
the
provisions of section 144(a) were not applicable to the current
dispute, and by resolving the dispute in terms of the provisions
of
section 144(d) of the LRA.
[15] In
F & J Electrical CC v MEWUSA obo E Mashatola and
Others
[5]
,
it was held that whether a rescission is granted in circumstances
where an order (award) was erroneously sought or granted in the
absence of the other party, this did not depend upon the applicant
showing good cause or sufficient cause. It was sufficient if
the
order or award was erroneously sought or granted in the absence of
that party. This implies that for an order or award to be
claimed to
have been erroneously sought or granted in the absence of the other
party, there must have been a patent defect
which was unknown
to the Court/Commissioner at the time the order/award was issued.
Examples in this regard include but are not
limited to instances
where the defaulting party was not properly served with a notice of
set-down; where the pleadings instituting
the claim were not
properly served on the defaulting party etc
[6]
.
[16] VEA’s averments in respect of the rescission application
before the Commissioner were clearly not grounded in the provisions
of section 144(a) of the LRA. There is no allegation that the default
arbitration was erroneously sought or obtained. On the contrary,
the
averments fell on all fours within the ambit of section 144(d) of the
LRA. The facts of the case before the Commissioner was
that indeed
the notice of set-down was received, and there was an attendance by
VEA’s counsel, who on its own version, had
to withdraw from the
matter as no witnesses were available. The Commissioner in the
absence of an application for a postponement
did not hear from VEA
that it had a predicament due to the unavailability of its witnesses.
That information came from Bredenhann’s
representative.
[17] In circumstances where a party’s witnesses are unavailable
for whatever reasons, which reasons were not formally placed
before a
Commissioner for the purposes of seeking an indulgence, it cannot be
said that an award was erroneously sought or obtained
where no
attempts were made to bring that fact to the attention of the
Commissioner, whether prior to or on the set-down date.
The fact that
witnesses were not available on its own in any event, without an
application for a postponement, cannot be a patent
defect for the
purposes of a determination whether an award was erroneously sought
or obtained.
[18] Significant with this matter is that it is unusual for counsel
(where instructed) to simply abandon matters before they come
before
a court or Commissioner. Even if counsel was instructed to withdraw
from the matter for whatever reason before it commenced,
at most,
courtesy required that even if an application for a postponement was
not to be pursued due to lack of instructions, at
most, counsel ought
to have formally advised the Commissioner that he no longer had
instructions to continue with the matter and
was thus withdrawing. It
was therefore unusual for counsel to simply inform his opponents of
his predicament and leave before the
proceedings could commence. It
follows from these conclusions that there is no merit in the
contention that the Commissioner committed
a reviewable irregularity
in failing to consider the provisions of section 144(a) of the LRA
when no legal or factual basis was
laid in that regard. At most, the
conduct of abandoning the arbitration proceedings without even an
appearance before the Commissioner
or a request for a postponement
evinced an abandonment of VEA’s defence, contrary to its
contentions that it had not done
so.
[19] Once the provisions of section 144(a) of the LRA were found to
be inapplicable or unsustainable to a set of facts as in this
case,
the defaulting party is then required to show good cause for its
default under the provisions of section 144(d) of the LRA.
The
requirements of good cause were explained in
Colyn v Tiger Food
Industries Ltd t/a Meadow Feed Mills Cape
Order
[7]
as follows;
“
...
In order to succeed an applicant for rescission of a judgment taken
against him by default must show good cause (
De
Wet and others v Western Bank Ltd
,
supra). The authorities emphasize that it is unwise to give a precise
meaning to the term good cause. As Smalberger J put it in
HDS
Construction (Pty) Ltd v Wait:
"When
dealing with words such as 'good cause' and 'sufficient cause' in
other Rules and enactments 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 (
Cairns' Executors v Gaarn
1912 AD 181
at 186; Silber v Ozen
Wholesalers (Pty) Ltd
1954 (2) SA 345
(A) at 352–3). The
Court's discretion must be exercised after a proper consideration of
all the relevant circumstances."
With
that as the underlying approach the courts generally expect an
applicant to show good cause (a) by giving a reasonable explanation
of his default; (b) by showing that his application is made
bona
fide
; and (c) by showing that he has a
bona fide
defence
to the plaintiff's claim which
prima facie
has some prospect
of success (
Grant v Plumbers (Pty) Ltd
,
HDS Construction
(Pty) Ltd v Wait, supra, Chetty v Law Society, Transvaal
).”
[20] VEA had in the alternative, argued that the rescission ruling
was reviewable because the conclusion reached by the Commissioner
that it had failed to satisfy the requirement of good cause was
unreasonable. It outlined the following facts in support of its
contention:
20.1. The instruction to Counsel to withdraw from the arbitration
proceedings did not amount to a renunciation of its defence.
20.2. Even if the withdrawal and the default was due to the Counsel’s
negligence in not applying for the postponement of
the matter, the
negligence should not be attributed to VEA and it should not be
punished for such negligence. Because VEA’s
failure to attend
the arbitration proceedings was not due to its own fault but of its
legal representatives, the default cannot
be wilful.
20.3. The Commissioner applied the requirements of good cause in
terms of the provisions of section 144(d) of the LRA incorrectly.
The
Commissioner failed to take into consideration the prospects of
success in the main dispute, whether
prima facie
VEA could
successfully defend its decision to dismiss the employee. This is
because there was evidence before the Commissioner
that there was in
fact no dismissal but rather a mutual separation. According to VEA,
the failure to consider the prospects of
success constituted a
reviewable irregularity.
[21] A perusal of the Commissioner’s ruling indicate that the
above complaints were dealt with, as he had concluded that
VEA’s
Counsel would have been expected to appear and explain the
non-availability of witnesses and seek postponement, rather
than
simply abandoning the proceedings.
[22] The difficulty that VEA has in this case is that it seeks to
absolve itself from its actions and those of its representatives
that
led to the dispute being heard in default. It has already been
indicated that for reasons that are not clear, other than the
fact
that witnesses were not available, counsel left proceedings without
advising the Commissioner of his predicament. Inexplicably,
no
attempt was made to seek a postponement. A second factor is that
Scheepers chose to attend a ‘tender meeting’ rather
than
availing himself as a witness. I did not understand his averment to
be that counsel was instructed to advise the Commissioner
of his
predicament, and even then, it is doubted that the Commissioner would
have been sympathetic given the excuse. Thus, the
fact that the
tender meeting was convened at short notice is not a valid excuse. A
third factor is that Ms Henning resigned on
18 March 2016,
whilst the arbitration proceedings were held on 16 March 2016.
I fail to see the relevance of
this excuse in circumstances where Ms
Henning was still an employee as at the date of the proceedings. Even
if she was serving
notice at the time, there is no reason why
arrangements could not have been made to secure her availability as a
witness even if
by means of subpoena. A fourth factor is that even if
VEA for some strange reason sought to absolve itself from what can be
viewed
as negligence on the part of its attorneys in not instructing
counsel to seek a postponement before departing, it remains trite
that applicants cannot be excused from the tardiness or negligence of
their chosen representatives. In the end, the Commissioner’s
conclusions that the explanation proffered for the default was
unsatisfactory cannot be faulted.
[23] The Commissioner had proceeded to make an enquiry as to whether
VEA had made averments which established prospects of success
on the
merits, and concluded that there were none. In coming to that
conclusion,
t
he
Commissioner had regard to the documents submitted as evidence, and
in particular, the disputed correspondence related to the
alleged
agreement of mutual termination of the employment relationship. VEA
offered nothing in its founding affidavit to the rescission
application other than that there was a mutual separation. This scant
averment, in circumstances where VEA was in possession of
a copy of
the default award in which an extensive account of how the dismissal
was deemed to have been unfair was given, can hardly
suggest or
establish
prima facie
prospects of success. It was not
sufficient, as can be gleaned from the application before the
Commissioner
[8]
for VEA to simply aver that its single version (that there was mutual
separation) constituted reasonable prospects of success,
or simply to
aver that its version is vastly different to that presented by
Bredenhnn, when that version was not pleaded.
[24] To summarise, VEA had not before the Commissioner, established a
case to rescind the default award under section 144 (a) or
144 (d) of
the LRA. It had failed to demonstrate any good cause before the
Commissioner, and the latter’s ruling is clearly
unassailable.
Solidarity had in the opposing affidavit, also sought an order making
the default award an order of court.
There is nothing from the
circumstances of this case that precludes this Court from
making such an order.
[25] In the premises, the following order:
Order:
1. The Applicant’s application to review and set aside the
rescission ruling issued by the First Respondent dated 2 June 2016
is dismissed.
2. The default award issued under case number GAEK 11702-15 dated
16 March 2016 is made an order of court in terms of
the
provisions of section 158(1)(c) of the Labour Relations Act.
3. There is no order as to costs.
E
Tlhotlhalemaje
Judge of the Labour Court of South Afric
APPEARANCES:
For the applicant:
Mr
C.
Higgs of Higgs Attorneys
For the Third Respondent: Mr G.J
Visser (Union official) of SOLIDARITY
[1]
Section 144(a) of the LRA
[2]
Section 144(b) of the LRA
[3]
Section 144(c) of the LRA
[4]
Section 144(d) of the LRA
[5]
[2015] ZACC 4
;
2015 (4) BCLR 377
(CC); (2015) 36 ILJ 1189 (CC);
[2015] 5 BLLR 453
(CC) at para [27]
[6]
See
Bakoven Ltd GJ Howes (Pty) Ltd
1992 (2) SA 466
(E) at
471E-F
[7]
[2003] 2 All SA 113
(SCA)
[8]
Paragraphs 15 – 19 at page 32 of Index to
Pleadings