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[2025] ZALCJHB 160
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Tarman Group Holdings (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR926/24) [2025] ZALCJHB 160 (24 April 2025)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR926/24
In
the matter between:
TARMAN GROUP HOLDINGS
(PTY) LTD
Applicant
and
COMMISSION FOR
CONCILIATION MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER GS JANSE
VAN VUUREN
Second Respondent
AMOS VUSI
SEDIBE
Third Respondent
Heard:
25 February 2025
Delivered:
24 April 2025
Summary: Unopposed review
application – employee dismissed for assaulting his colleague
at work – employee alleging
that the reason for the assault was
that his colleague had sworn at him – unfair dismissal dispute
scheduled for con/arb
and arbitration occurring in the absence of
employer despite the employer having delivered a notice of objection
to con/arb albeit
less than seven days before the scheduled con/arb
hearing – rescission refused by Commissioner –
reasonableness of
Commissioner’s decision.
JUDGMENT
MKWIBISO,
AJ
Introduction
[1]
In this matter the applicant (the employer) seeks to set aside on
review a rescission ruling dismissing its application
to rescind an
award that was granted by default in favour of the third respondent
(the employee).
[2]
The issue is whether the second respondent (the Commissioner), a
senior commissioner who was appointed by the first respondent
(the
CCMA) to conciliate and arbitrate the dispute between the parties,
unreasonably refused to grant the employer’s rescission
application.
Relevant
facts and evidence
[3]
The employee was dismissed by the employer on 31 January 2024 for
having assaulted his colleague at work. The employee
had undergone a
disciplinary hearing on 29 January 2024, prior to his dismissal. The
outcome of that hearing acknowledged that
the employee had pleaded
guilty to the allegation of assault and,
inter alia
, provided
the following:
“
PROSECUTOR’S
CASE:
The Prosecutor states
that a fellow employee instructed the accused to take the water truck
to a specified site as another employee
required water in order to
clean another truck, however this accused refused to follow said
instruction which resulted in the fellow
instructing employee and the
accused getting into a fight and whereby the accused assaulted his
fellow employee.
ACCUSED’S CASE:
The Accused states that
his job was to fill up the milling machine with water. On 22 January
2024, his fellow instructing employee
arrived on site and did not ask
for water but that he just started shouting and fighting, after which
he phoned his employer to
inform him of his refusal to follow
instructions. The accused states that he did in fact provide the
water as instructed. The accused
states further that prior to
providing the water, he wanted to change the pipes and to turn the
water truck around in an attempt
to make it easier for the other
employee to use, which the other employee understood as the accused
refusing to provide the water.
The accused states
further that he did not speak badly to his fellow instructing
employee, or cursed at him, but that his fellow
instructing employee
spoke badly to and cursed at the accused and threatened to call the
police, which is when the accused assaulted
his fellow employee. The
accused states that the allegation that he does not follow
instruction is false and that his fellow employee
is lying about the
fact that he does not follow instructions.
RECOMMENDATION:
In light of the
above-mentioned and taking into consideration that the accused had
received a written warning for insulting fellow
employees on site in
front of a client, and taking into consideration that the accused
assaulted a fellow employee and the seriousness
of such an offence,
it is my recommendation that the accused be dismissed with immediate
effect”.
[4]
It seems on 31 January 2024 the employee was issued with a letter
informing him of the outcome of the disciplinary hearing
and
informing him that he was dismissed from his duties. Unhappy with his
dismissal, the employee referred an unfair dismissal
dispute to the
CCMA.
[5]
The dispute was scheduled for a con/arb hearing on 19 March 2024.
Having received the notice of the con/arb process, the
employer
objected to the con/arb process. However, this objection was filed on
15 March 2024, being four calendar days before the
scheduled con/arb
hearing. The objection had been served on the employee by registered
post on 12 March 2024, which was seven days
before the con/arb
hearing.
[6]
The CCMA’s case management officials did not bring the
employer’s objection to con/arb to the Commissioner’s
attention. As a result, the Commissioner proceeded with the
arbitration hearing on 19 March 2024, in the absence of the employer.
There is no evidence that the Commissioner attempted to conciliate
the dispute before proceeding with the arbitration, which attempt
would have involved having to contact the employer.
[7]
At the arbitration hearing, the employee was the only witness who
testified.
[8]
On 22 March 2024, the Commissioner issued his arbitration award. The
said award records that the employee was a Driver
earning a salary of
R8 000.00. The award reflects that the employee acknowledged having
assaulted his colleague at work and advanced
the defence that the
said colleague had sworn at him. In other words, he effectively
raised the defence of provocation.
[9]
The award did not make a finding as to whether or not the employee
was guilty of misconduct, having assaulted a co-worker.
The award did
not specify what exactly the employee’s colleague had said,
which constituted swearing and which had provoked
the employee into
committing the misconduct of assault. There was no assessment of
whether provocation was a complete defence against
the misconduct of
assault or whether it was a partial defence that could only be used
as mitigation against a dismissal. As a result,
the award did not
reach a conclusion that the dismissal was too harsh a sanction for
the misconduct of assault.
[10]
The award reasoned as follows:
“
[17] I am aware of
the fact that the applicant’s version has not been tested, but
I have no reason to doubt his credibility
and I consequently accept
his evidence. An employer who ignores a notice to attend arbitration
proceedings at the CCMA does so
at its own peril.
[18] The fact that the
alleged victim had not been called to testify at the applicant’s
disciplinary hearing certainly raises
the question whether the
chairperson had, for instance, taken into consideration the fact that
he had sworn at the applicant.
[19] The respondent in
its letter of 31 January 2024 advised the applicant of a
recommendation by the “HR Attorneys of your
immediate dismissal
of duties at the company.” There is no indication that anybody
in the service of the respondent had accepted
that recommendation and
that anybody had actually taken a decision to dismiss the applicant.
The recommendation had, in any event,
not been that the applicant
should be dismissed – he only had to be dismissed of duties,
whatever that may mean.
[20] It is, however,
clear that the respondent had immediately proceeded to terminate the
applicant’s service without further
ado. The applicant’s
UIF documents were prepared for collection by him that very same day
and he was effectively dismissed”.
[11]
The award found that the dismissal was substantively and procedurally
unfair and granted to the employee compensation
in the amount of ten
months’ remuneration, being the amount of R80 000.00. The
employee had insisted on compensation instead
of reinstatement.
[12]
The award
reached the employer on 22 March 2024. Unhappy with the outcome, the
employer served and filed an application for rescission
of the award
on 28 March 2024. In this application, the employer provided evidence
by way of emails showing that it had filed its
objection to the
con/arb process on 15 March 2024, as well as evidence of the service
of the objection on the employee by registered
post on 12 March 2024.
The employer further alleged that it had good prospects of success
because it had conducted a disciplinary
hearing before dismissing the
employee, at which he had pleaded guilty to the allegation of
assaulting a colleague at work. The
employer pointed out that the
late filing of the objection to con/arb, four days before the
hearing, did not render the objection
invalid on the authority of
Valinor
Trading 133 CC t/a Kings Castle v CCMA and Others (Valinor
Trading)
[1]
.
[13]
The
Commissioner dismissed the rescission application in a ruling dated
13 May 2024. The rescission ruling held that section 144(a)
of the
Labour Relations Act
[2]
was not
applicable because it was not the employer’s case that it had
not been notified of the con/arb hearing.
[14]
The rescission ruling found that the employer had provided a
reasonable explanation for its default:
“
[17] It is not
necessary to refer to the Labour Court’s judgment in Valinor
Trading 133 CC t/a Kings Castle v CCMA because
I had not ignored or
rejected the respondent’s objection. I had, in fact, been
unaware of the respondent’s objection
to the con-arb process
for the simple reason that no such objection had been placed in the
case file. I consequently accept that
the respondent has furnished a
bona fide, reasonable and acceptable explanation for its default”.
[15]
The rescission ruling acknowledged that the rescission application
had advanced an argument that the employer had good
prospects of
success on the merits of the unfair dismissal dispute. However, the
ruling held that the employer had sidestepped
the crux of the award,
contained in paragraph 19 of the award quoted above. In other words,
the Commissioner was of the view that
the employee’s dismissal
was substantively and procedurally unfair because after the
disciplinary hearing of 29 January 2024
he had been issued with a
letter dated 31 January 2024 in which the recommendation of dismissal
made by the Chairperson of the
disciplinary hearing was not
specifically adopted by the employer and because the recommendation
was that the employee be dismissed
from duties which was different
from being dismissed. This was the basis on which the employer’s
rescission application was
dismissed.
[16]
Unhappy with the outcome of the rescission application, the employer
applied to have the rescission ruling set aside
on review before this
Court. The review application was filed timeously on 10 June 2024.
The employer contends that the Commissioner’s
decision to
dismiss the rescission application is not one that a reasonable
commissioner could make.
Analysis
[17]
The test
for setting aside an award on review is trite. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
,
[3]
the Constitutional Court held that section 145 of the Labour
Relations Act was suffused by the Constitutional standard of
reasonableness:
“
[110]
To
summarise,
Carephone
held that section 145 of the LRA was suffused by the then
constitutional standard that the outcome of an administrative
decision
should be justifiable in relation to the reasons given for
it.
The better approach is that section
145 is now suffused by the constitutional standard of reasonableness.
That standard is the one
explained in
Bato
Star
: Is the decision reached by
the commissioner one that a reasonable decision-maker could not
reach?
Applying it will give effect not
only to the constitutional right to fair labour practices, but also
to the right to administrative
action which is lawful, reasonable and
procedurally fair” (own emphasis).
[18]
In
Herholdt
v Nedbank Ltd
,
[4]
the Supreme Court of Appeal summarised the review test in the
following terms:
“
[25]
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in s 145(2)
(a)
of the LRA. For a defect in the conduct of the proceedings to amount
to a gross irregularity as contemplated by s 145(2)
(a)
(ii),
the arbitrator must have misconceived the nature of the inquiry or
arrived at an unreasonable result.
A
result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before
the
arbitrator
. Material errors of fact, as
well as the weight and relevance to be attached to particular facts,
are not in and of themselves
sufficient for an award to be set aside,
but are only of any consequence if their effect is to render the
outcome unreasonable”
(own emphasis).
[19]
The employer’s application for rescission was not limited to
section 144(d) of the Labour Relations Act. Whether
the award was
issued erroneously as envisaged by section 144(a) of the Labour
Relations Act was a live issue in terms of the application
for
rescission.
[20]
Section 144(a) of the Labour Relations Act provides that a
commissioner who has issued an award may rescind that award
if it was
made erroneously in the absence of a party affected by the award.
[21]
The Commissioner’s finding that the employer had a
bona
fide
, reasonable and acceptable explanation for its default must
stand as it has not been challenged on review. This finding clearly
accepts that the award was erroneously made in the absence of the
employer as the Commissioner should not have proceeded with the
arbitration hearing in light of the objection to the con/arb process.
The award should have been rescinded on this basis alone.
In this
regard, it should be recalled that section 191(5A)(c) of the Labour
Relations Act provides that:
“
(5A) 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)
…
(b)
…
(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”.
[22]
In
Valinor
Trading
,
the Court found section 191(5A)(c) to mean that “
once
a party objects to arbitration, arbitration cannot lawfully
commence
.”
[5]
The Court also dealt with the requirement in rule 17(2) of the CCMA
rules to file an objection to con/arb not less than seven days
prior
to the hearing, and found that this rule could not mean that an
objection filed less than seven days prior to the con/arb
hearing was
invalid in light of the fact that section 191(5A)(c) of the Labour
Relations Act did not provide any time frames for
objecting to
con/arb and the Labour Relations Act had to prevail over the CCMA
rules.
[6]
[23]
The
Commissioner’s finding that section 144(a) of the Labour
Relations Act did not apply simply because it was not the employer’s
contention that it was not notified of the con/arb hearing was
unreasonable. The mere fact that the arbitration proceeded despite
the objection to con/arb that was filed four days prior to the
hearing meant that there was an error as envisaged in section 144(a)
of the Labour Relations Act and justified the rescission of the award
without having to consider issues of good cause.
[7]
[24]
If section 144(d) of the Labour Relations Act were to be applied
instead of section 144(a), then section 144(d) provides
that a
commissioner who has issued an award may rescind that award if it was
made in the absence of any party, on good cause shown.
A reasonable
and acceptable explanation for the employer’s default coupled
with good prospects of success on the merits of
the unfair dismissal
dispute would constitute good cause. As mentioned above, the
Commissioner’s finding that the employer’s
absence was
bona fide
, reasonable and acceptable stands. The only issue
would be whether or not the employer has good prospects of success on
the merits
of the unfair dismissal dispute. In my view, no reasonable
commissioner would conclude that there were no prospects of success
on the ground that the employer did not accept the recommendations of
the presiding officer of the disciplinary hearing and because
the
letter of dismissal said the employee was being dismissed from duties
and not dismissed as an employee of the employer. It
seems the
Commissioner was clutching at straws here. It is clear that the
employee was dismissed by the employer following a disciplinary
hearing in which he pleaded guilty to assaulting a co-worker. The
employee considered himself to have been dismissed and he claimed
that his dismissal was unfair due to his allegation that he was
provoked by being sworn at, not because he felt there was some
process that was not followed after his disciplinary hearing was
concluded. It is quite obvious that the employer dismissed the
employee because it had accepted the findings of the presiding
officer of the disciplinary hearing. Even if the Commissioner was
correct that there was no formal acceptance of those findings, this
would only be a procedural issue and the question would still
remain
as to whether the employer had a good case on the merits or
substantively, relating to the admitted misconduct of assault
committed by the employee. The Commissioner unreasonably found his
tenuous procedural concerns to constitute issues of substantive
fairness.
[25]
Ultimately, it was unreasonable for the Commissioner to dismiss the
employer’s rescission application. The Commissioner
should have
granted the application in order to allow the parties to fully
address their dispute on the merits at a fresh arbitration
hearing.
[26]
It is worth
noting that had the Commissioner made proper attempts to conciliate
the matter before proceeding with the arbitration
hearing in the
con/arb process, the employer would have been contacted and would
have informed the Commissioner of the objection
to con/arb once
conciliation had failed to resolve the dispute. It is important to
remind commissioners of the following principle
articulated by the
Labour Appeal Court in
Premier
Gauteng and Another v Ramabulana NO and Others
[8]
regarding conciliation proceedings:
“
[10] What the
provisions of sec 191(4) mean is that, once the CCMA or a bargaining
council with jurisdiction, has received a referral
of a dismissal
dispute as contemplated in sec 191(1) of the Act for conciliation
within the prescribed period of 30 days or, I
am sure, within a
longer period and has condoned the late referral,
the CCMA or the
bargaining council has an obligation to attempt to conciliate it
.
While in many cases this may mean that the parties must be physically
present at a conciliation meeting,
I do not think that it can be
said that the CCMA or a bargaining council cannot undertake attempts
to conciliate a dismissal dispute
simply because one party is not
physically at the conciliation venue even if he is only a telephone
call away and is available
to telephonically participate in attempts
at conciliation
” (my emphasis).
[27]
Making a proper attempt to conciliate this matter would probably have
avoided the delays that have been caused by the
need to rescind the
default award.
Costs
[28]
The application was not opposed and as such there should be no order
as to costs.
[29]
In the premises, the following order is made:
Order
1.
The rescission ruling of the second respondent dated 13 May 2024
under case number GAEK2446-24 is reviewed and set aside.
2. The rescission
ruling is replaced by an order that the arbitration award of the
second respondent dated 22 March 2024 under
case number GAEK2446-24
is rescinded and the matter is remitted to the first respondent for
an arbitration hearing
de novo
before a commissioner other
than the second respondent.
3. There is no
order as to costs.
VG
Mkwibiso
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant:
Adv N Strydom
Instructed
by:
Lionel De Villiers (LDV) Attorneys
For
the Third Respondent: No
appearance
[1]
Valinor
Trading 133 CC t/a Kings Castle v CCMA and Others (2023) 44 ILJ 1106
(LC); [2023] 4 BLLR 321 (LC).
[2]
Act
66 of 1995.
[3]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007) 28 ILJ 2405 (CC), para [110].
[4]
Herholdt
v Nedbank Ltd
(2013)
34 ILJ 2795 (SCA);
[2013] 11 BLLR 1074
(SCA), para [25].
[5]
Valinor
Trading
(supra),
at para 11.
[6]
Valinor
Trading
(supra), at para 15 and 20 - 22.
[7]
F&J
Electrical CC v MEWUSA obo E Mashatola and Others
(2015)
36 ILJ 1189 (CC).
[8]
Premier
Gauteng and Another v Ramabulana NO and Others
(2008) 29 ILJ 1099 (LAC);
[2008] 4 BLLR 299
(LAC), at para 10.