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[2019] ZALCJHB 173
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Bluechip Development v Commission for Conciliation, Mediation and Arbitration and Others (JR1762/17) [2019] ZALCJHB 173 (12 July 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case no.: JR 1762/17
In
the matter between:
BLUECHIP
DEVELOPMENT
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION AND ARBITRATION
First Respondent
BENGANI
KHUMALO
N.O.
Second Respondent
KARABO
GABACOE
N.O
CLEMENT
RAMAQABE
Third Respondent
Fourth Respondent
Heard:
09 January 2019
Delivered: 12
July 2019
Summary:
Application for rescission of a default arbitration
award and a rescission ruling. Re-statement of the principles
relating to rescission applications and reviews. Review application
granted. Consideration of review ground related to Commissioner’s
failure to have proper consideration to the facts of the matter.
JUDGMENT
SNIDER
AJ
[1]
This is an application to review and set aside –
1.1
a default arbitration award (“the default award”) issued
by the
Second Respondent, dated 15 February 2017, and
1.2
a rescission ruling (“the rescission ruling”) issued by
the Third Respondent
dated 8 August 2017.
[2]
The application for rescission was made in an effort to rescind the
default
award. Both the rescission application and arbitration which
culminated in the default award were heard under case number
GAJB2311-16.
[3]
The default award was granted in circumstances where the
Applicant
(“Bluechip Development”) was not present at the
arbitration.
[4]
There is
considerable effort devoted, by the Applicant, in this application
and in the application for rescission, as to its knowledge
(or lack
thereof) of the set down of the arbitration. I do not regard
this part of the evidence as decisive. The Third
Respondent, in
the rescission ruling, gives the Applicant the benefit of the doubt
in finding that, apart from the explanation
for not having been at
the arbitration, he must also consider the merits of The Applicant’s
case.
[1]
[5]
I refer to
the “benefit of the doubt” in this regard as there is
not, at any point in the papers, a satisfactory explanation
as to why
the SMS notification which appears to have been sent out by the
Commission for Conciliation, Mediation and Arbitration
(CCMA) was not
responded to timeously by the Applicant. In fact, on the
contrary in this regard, there is an allegation in
the founding
affidavit
[2]
to the effect that
“
the
applicant only noticed the SMS reminder sent by the CCMA about a week
after the matter was scheduled . . . .
”.
The representative of the Applicant however, never received the SMS,
as his cell phone number changed in the interim.
The Applicant
has also failed to have regard to rule 5A of the rules of the First
Respondent, which makes clear provision for the
use of “short
message service” to give notice of an arbitration.
[6]
However, in respect of the consideration of the merits of the
Applicant’s
case, the Third Respondent did not deal with the
factual circumstances as they pertained to the merits of the
dismissal, as per
the Applicant’s version at all.
[7]
The only
ground for review advanced by the Applicant that, in my view, has
merit, is that the Third Respondent failed to apply his
mind to the
facts of the matter. This issue was, with respect, concisely
dealt with by the Labour Appeal Court in
Head
of Department of Education v Mofokeng & Others
[3]
where the following was stated –
“
[33]
Irregularities or errors in relation to the facts or issues,
therefore, may or may not produce an unreasonable
outcome or provide
a compelling indication that the arbitrator misconceived the
enquiry. In the final analysis, it will depend
on the
materiality of the error or irregularity and its relation to the
result. Whether the irregularity or error is material must
be
assessed and determined with reference to the distorting effect it
may or may not have had upon the arbitrator's conception
of the
enquiry, the delimitation of the issues to be determined and the
ultimate outcome. If but for an error or irregularity
a
different outcome would have resulted, it will ex hypothesi be
material to the determination of the dispute. A material error
of
this order would point to at least a prima facie unreasonable result.
The reviewing judge must then have regard to the general
nature of
the decision in issue; the range of relevant factors informing the
decision; the nature of the competing interests impacted
upon by the
decision; and then ask whether a reasonable equilibrium has been
struck in accordance with the objects of the LRA.
Provided the
right question was asked and answered by the arbitrator, a wrong
answer will not necessarily be unreasonable. By the
same token, an
irregularity or error material to the determination of the dispute
may constitute a misconception of the nature
of the enquiry so as to
lead to no fair trial of the issues, with the result that the award
may be set aside on that ground alone.
The arbitrator however must be
shown to have diverted from the correct path in the conduct of the
arbitration and as a result failed
to address the question raised for
determination.”
[8]
The Third Respondent finds that withholding the employee’s
salary
in order to force his attendance at a disciplinary enquiry is
unusual and unconventional and does not accord with the general sense
of fair and just practice.
[9]
I am fully in agreement with this; however there certainly appears to
be more to the dispute. The Applicant has, on an unopposed
basis, alleged that the reason for the dismissal was that the Fourth
Respondent was charged with the unauthorised removal of company
property on 20 October 2016 and (uncommunicated) absence on 21
October 2016.
[10]
The Employee was indeed not paid monies owed to him in order to
secure his presence at
the disciplinary enquiry which was arranged
for 27 October 2016. The Employee failed to attend on 27
October 2016 despite
having been sent an SMS to attend on this day,
and the disciplinary enquiry was rescheduled for 31 October 2016.
Once again
the Employee failed to appear and the disciplinary enquiry
was held in his absence.
[11]
To my mind this is a factual dispute which the Third Respondent was
duty bound to determine,
in order for justice to be done. I am
of the view that his failure to do so produced an unreasonable
outcome and that it
was material in the sense as set out in Mofokeng
(
supra
).
[12]
In the premises the following order is made:
Order
:
1. The default award and
the rescission award are set aside.
2. The CCMA is ordered to
set the mater down for arbitration.
3.
There is no
order as to costs.
___________________________
Snider,
A J
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Daniel Berry
For
the Respondent:
In person.
[1]
Page 26 of the pleadings, page 6 of the rescission ruling.
[2]
Page 12 of the rescission of the review application paragraph [8.7]
[3]
(2015) 36 ILJ 2802 (LAC).