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[2019] ZALCJHB 171
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Mothole Bus Service CC v Commission for Conciliation, Mediation and Arbitration and Others (JR899/14) [2019] ZALCJHB 171 (12 July 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case no.: JR 899/14
In
the matter between:
MOTHOLE BUS SERVICE
CC
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION AND ARBITRATION
First Respondent
COMMISSIONER
DONALD KGALAKE NKADIMENG
N.O.
Second Respondent
KHUTSO
ZEBELON RASETSOKE
Third Respondent
Heard:
9 January 2019
Delivered:
12 July 2019
Summary:
Application to review a rescission ruling. The principles
concerning rescission applications considered.
The law relating
to the reviewing of rescission rulings considered. Review
granted.
JUDGMENT
SNIDER,
AJ
[1] This
is an application for the review of an award dated 25 April 2015,
issued by the Second Respondent (“the Commissioner”) with
case number LP7237-13 under the auspices of the First Respondent
(“the CCMA”).
[2]
The
award which the Applicant seeks to review is a ruling on a rescission
application which was made by the Commissioner.
[1]
Background
[3]
The Third
Respondent (“the former employee”) was charged with gross
dereliction of duty, and a breach of his contract
of employment, for
failing to hand certain urgent email communication from the South
African Revenue Services to the deponent to
the Applicant’s
affidavits, a Mr Modjela, who is also the managing member of the
Applicant.
[2]
[4] The
Applicant appeared before a disciplinary enquiry on 9 October 2013
and was dismissed by the Applicant on 23 October 2013.
[5]
Subsequent to the former employee’s dismissal it is alleged on
behalf
of the Applicant that, until 30 January 2014, it did not
receive any referral form from the former employee or, for that
matter,
from the Commission for Conciliation, Mediation and
Arbitration (CCMA).
[6]
It is
perhaps worth noting, at this stage, that in order to refer a dispute
to the CCMA for conciliation
[3]
the referring party must sign the document, and attach to the
referral document written proof, in accordance with rule 6 of the
CCMA’s rules, that the referral document was served on the
other parties to the dispute; and if the referral document is
filed
out of time, attach an application for condonation in accordance with
Rule 9(3) read with Rule 31.
[7]
On 30
January 2014 the Applicant received a referral form and an
application for condonation from the former employee.
[4]
[8]
Pursuant to
the application for condonation, the Commissioner ultimately made a
ruling
[5]
condoning the late
referral of the dispute. The Applicant then brought an
application for the rescission of the condonation
ruling
[6]
which application was unsuccessful. The rescission application
was unsuccessful.
[7]
[9]
It is under these circumstances that the review application is
brought
in respect of the rescission ruling.
Analysis
[10]
As a point
of departure I refer to the application for condonation for the late
referral.
[8]
The former
employee was dismissed on 23 October 2013 and it appears that the
affidavit in the condonation application was
signed and telefaxed on
30 January 2014. The Applicant admits having received it.
[11]
The reason
given for the former employee’s lateness
[9]
was that “
he
faxed the referral form on 23 October 2013 (the date of his
dismissal) and waited for a notice of set down.
”
The former employee’s lawyer then phoned the CCMA on 27 January
2014 and was informed that the former employee
had not signed the
referral form. This presumably led to the matter not being
processed.
[12]
The former employee states his prospects of success to be the
following:
12.1 he
was dismissed because he allegedly failed to give a personal email
from SARS to the Director and this
duty did not form part of his
obligations in terms of his contract of employment, and
12.2
in relation to the issue of prejudice, the former employee stated “
I
won’t be given an opportunity to defend my case, the lady to
whom I gave the printed email will not be able to testify as
a
witness, I do not have a job at the moment and therefore I am
struggling financially
.”
[13]
The Commissioner observed that the application for condonation was
unopposed, came to the
conclusion that the degree of lateness was not
excessive, if account is taken of the fact that the first referral
was made on the
day of dismissal.
[14]
The Commissioner further found that the reason for the delay is
excusable because the CCMA
help desk, where the former employee
sought assistance, should have given him proper advice. The
Commission also found merit
in the former employee’s case and
accordingly that he should be allowed to present his case at
arbitration. In those
circumstances the application for
condonation of the late referral of the dispute was granted.
[15]
The next
step in the process was the application for rescission of the
award.
[10]
The former
employer, in its affidavit, deals extensively with the merits of the
dismissal dispute. The elements of
a rescission application are
well known in our law. In order to show good cause for the
rescission, a party must show an
acceptable explanation for being in
default and a
bona
fide
defence on the merits. The test was formulated as follows in
Northern
Training Trust v Maake and Others
[11]
-
“
The enquiry in an
application for the rescission of an arbitration award is bipartite.
The first leg is one which is concerned
with whether or not the
notice of set down was sent, (for instance by fax or registered
post). Should evidence show that
the notice was sent a
probability is then created that the notice sent was received.
The second leg to the enquiry is one
which concerns itself the
reasons proffered by the Applicant who failed to attend the
arbitration (here condonation) proceedings.
Such Applicant
needs proof that he or she was not in wilful default, that he or she
has reasonable prospects of being successful
with his or her case,
should the award be set aside. However, the Applicant need not
necessarily deal fully with the merits
of the case.”
[16]
The
Applicant does show why the condonation application was not
opposed.
[12]
Its reasoning is
that no case number was sent to the Applicant; although I see no
reason why the Applicant could not have approached
the CCMA and
obtained a case number in the circumstances.
[17]
To investigate these allegations in more depth is of no particular
value as the rescission
application was not dealt with by the
Commissioner as he ought to have dealt with it.
[18]
The prospects of success in the main matter (i.e. the dismissal
matter) and the reasons
for the default are extensively dealt with by
the Applicant in the rescission application and the matter should
thus have been
dealt with by the Commissioner in accordance with the
recognized method, that is to say, considering whether the Applicant
has
an acceptable explanation for being in default and a
bona fide
defence on the merits. The Commissioner must consider the two aspects
together and reach a reasoned conclusion.
[19]
The Commissioner who evaluated the rescission application appears to
have done so on the
basis of whether or not the condonation
application should have been granted.
[20]
This he did without performing an analysis of the allegations made by
the Applicant in
relation to the merits of the dismissal matter and
its reasons for being in default.
[21]
Although
the Commissioner does, to some extent, consider the reasons for
default, which it must be stated are relatively thin, he
does not
consider the implications and weight of the allegations that there
was no case number on the condonation application,
which
consideration could have operated in the former employee’s
favour, and, oddly, refers to a conversation between himself
and the
case management officer, which was clearly of an extra-curial nature,
and not admissible.
[13]
[22]
The Commissioner then states that the condonation ruling does not
finally dispose of the
dispute between the parties and that there
exists no reason for the rescission of the ruling in question.
[23]
It is clear
that the Commissioner had scant, if any regard to the requirements
for analysing and deciding a rescission application.
He should
have properly considered the merits, and explanation for default
averred by the Applicant.
[14]
[24]
The
Commissioner’s failure to properly adjudicate the rescission
application is clearly unreasonable given the test set out
in
Sidumo
and Another v Rustenburg Platinum Mine Limited and Others
[15]
:
“…
whether
the decision that the arbitrator arrived at is one that falls in a
band of decision to which a reasonable decision maker
could come on
the available material.”
[25]
In light of the above I make the following order:
Order
1. The
rescission ruling dated 25 April 2014 under case number LP7237/13 is
reviewed and set aside and the matter is
referred back to the Second
Respondent for the rescission ruling to be determined afresh by
another Commissioner;
2. There is
no order as to costs.
___________________________
Snider,
A J
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Makgalabone MT
[1]
Page 15 of the pleadings bundle.
[2]
Page 8 of the pleadings bundle.
[3]
Rule 10 of the Rules of the CCMA .
[4]
Page 8 of the pleadings para [4.4].
[5]
The ruling appears at page 43 of the bundle.
[6]
Page 18 of the pleadings.
[7]
Page 15 of the pleadings.
[8]
Page 41 of the pleadings.
[9]
Page 41 para [3] of the pleadings.
[10]
Page 18 of the pleadings bundle.
[11]
[2006] 5 BLLR 496
(LC) at para 28.
[12]
Page 34 of the pleadings bundles.
[13]
Page 16 para [5.6] onto page 17.
[14]
Foschini
Group (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration & others
(2002) 23 ILJ 1048 (LC) at para 17 – “
If
the explanation given for a party's non-appearance at the
arbitration proceedings does not demonstrate that the absent party
was wholly blameless, the force of that explanation must still be
balanced against the force of the case G which that party
seeks to present in support of its case. The weight of a solid bona
fide case will usually make up for a thin explanation for
default.”
[15]
[2007] 12 BLLR 1097
CC.