IN THE LABOUR COURT OF SOUTH AFRICA
CASE NO: J5507/00
In the matter between:
Applicant
and
First Respondent
Second Respondent
THE COMMISSION FOR CONCILIATION,
Third Respondent
JUDGMENT
FRANCIS J
Introduction
13. This is an application to review and set aside an award made by the second respondent
(“the arbitrator”) under the auspices of the third respondent (“the CCMA”). In terms
of the award, the arbitrator found that the applicant had failed to reinstate the first
respondent in terms of an agreement, which was an unfair labour practice in terms of
item 2(1)(d) of Schedule 7 of the Labour Relations Act 66 of 1995 (“the Act”). The
applicant was ordered to pay the first respondent an amount of R78 960,00, being the
equivalent of twelve month’s remuneration.
14. The applicant had during the arbitration hearing applied for the postponement of the
matter as two of its witnesses had to attend a funeral. The arbitrator dismissed the
application for a postponement. The applicant seeks to review in terms of section 145
of the Act, the ruling that the arbitrator made when he dismissed the application for a
postponement.
15. The first respondent is not opposing the application and has indicated that she will
abide by the decision of this Court.
Background facts
16. The applicant dismissed the first respondent for operational requirements as well as
for reasons due to her medical condition with effect from 16 February 1999. A
written agreement was concluded between the parties on 22 February 1999, in terms
of which the first respondent would be afforded the first opportunity to return to the
applicant should any vacancy arise on condition that she was found suitable to fill
such a vacancy and was medically fit. This agreement was valid for a period of six
months.
17. The first respondent alleged that there had been a suitable vacancy but that the
applicant had failed or refused to reinstate her in terms of the said agreement, which
constituted an unfair labour practice in terms of item 2(1)(d) of Schedule 7 of the Act.
18. The applicant referred a dispute to the CCMA on 3 August 1999. The dispute was
conciliated on 28 October 1999. The dispute was referred to arbitration after
conciliation had failed. The matter was set down for arbitration on 26 June 2000 and
came before the arbitrator. The applicant raised an objection that the first
respondent’s representative, who was a labour consultant, could not represent her.
The arbitration hearing was postponed to 1 September 2000.
19. Mr Erhardt Smith, a close friend of two of the applicant’s material witnesses, being
Mike Ioannides and Elaine Flett, died tragically on Sunday 27 August 2000. Both
witnesses had personal ties with the deceased and wished to attend his funeral which
was going to take place at Potchefstroom on 1 September 2000 at 14H00. The
witnesses stated that they had suffered severe trauma and emotional stress and
considered themselves unable to testify under such circumstances immediately before
the funeral.
20. The applicant sent a letter dated 28 August 2000 to the first respondent and requested
a postponement. It cited the reasons contained in paragraph 7 above. This request
was refused in a letter on behalf of the first respondent dated 29 August 2000. In a
further letter dated 29 August 2000, the applicant informed the first respondent of its
intention to apply for a postponement on 1 September 2000.
21. The applicant’s counsel who had appeared on 1 September 2000 at the arbitration
hearing, applied for a postponement. The first respondent’s counsel opposed the
application. The arbitrator dismissed the application for a postponement. Thereafter
the applicant’s counsel left the arbitration proceedings and the arbitration proceeded
in the absence of the applicant.
22. The arbitrator made the following ruling:
23. “Having listened to both sides I’m not persuaded to grant a postponement on
this particular matter for the following reasons:
24. I’m a parttime commissioner, they’ve asked me to come and deal with this particular
matter. I’ve not been aware of any situation that would, untoward, you know this
particular event of death, I was not informed of that before today so that I can
communicate with both parties to say that look I won’t be coming that particular day,
let’s rather meet maybe next week or so.
Now the CCMA won’t pay me for today, and if I have to find a date it will
probably take quite some time. That’s number 1.
25. I am not quite convinced that the two witnesses could not come because they were so
much emotionally attached to the person who passed away. I don’t hear any direct
relationship between them, you know family relationship, he was just a friend. I
understand a friend can be very, very attached to somebody but I would have
difficulty to grant postponement on the basis that these two witnesses could not come
because they were emotionally attached because this is just a friend.
Besides the judgement that was made by the Labour Court, I am not very
convinced that the two witnesses could not come because they were emotionally
attached to this particular person.
We, I think what I would say I cannot grant postponement to your request for
postponement. We can now take five, ten minutes so that we can reorganise our
thinking and proceed with this matter.”
11. The applicant is seeking to review the aforesaid refusal to grant a postponement.
The grounds of review
12. The applicant contends that the arbitrator had:
“12.1 committed misconduct in relation to the duties of a commissioner as an
arbitrator; and/or
12.2 exceeded his powers as a commissioner; and/or
12.3 failed to apply his mind in the matter; and/or
12.4 made a ruling not justifiable in terms of the reasons given for such a ruling;
and/or
12.5 committed a gross irregularity in the conduct of the arbitration proceedings.”
Postponements
26. The legal principles in respect of postponements were summarised in Insurance &
Banking Staff Association and Others v SA Mutual Life Assurance Society (2000) 21
ILJ 386 (LC) at paragraph 44 at 394 E F as follows:
“In an application for a postponement, the legal principles established in the
High Court over the years apply equally in practice in the Labour Courts. For
the purpose of the present application, the following principles apply:
(a) The trial judge has a discretion as to whether an application for a postponement
should be granted or refused.
(b) That discretion must at all times be exercised judicially. It should not be
exercised capriciously or upon any wrong principle, but for substantial reasons.
(c) The trial judge must reach a decision after properly directing his/her attention to
all the relevant facts and principles.
(d) An application for postponement must be made timeously, as soon as the
circumstances which might justify an application become known to the applicant.
However, in cases where fundamental fairness and justice justify a postponement,
the court may in an appropriate case allow such an application for a
postponement, even though the application was not timeously made.
(e) The application for postponement must always be bona fide and not used simply
as a tactical manoeuvre for the purpose of obtaining an advantage to which the
applicant is not legitimately entitled.
(f) Considerations of prejudice will ordinarily constitute the dominant component of
the total structure in terms of which the discretion of a Court will be exercised.’
What the court has primarily to consider is whether any prejudice caused by a
postponement to the adversary of the application for a postponement can fairly be
compensated by an appropriate order of costs or any other ancillary mechanisms.
(g) ‘The Court should weigh the prejudice which will be caused to the respondent in
such an application if the postponement is granted against the prejudice which
will be caused to the applicant if it is not.’
(h) Where the applicant for a postponement has not made the application timeously,
if it is otherwise to blame with respect to the procedure which the applicant has
followed, but justice nevertheless justifies a postponement in the particular
circumstances of a case, the court in its discretion might allow the postponement
but direct the applicant in a suitable case to pay the wasted costs of the
respondent occasioned to such a respondent on a scale of attorney and client.
Such an applicant might even be directed to pay the costs of the adversary before
the applicant is allowed to proceed with the action or defence in the action, as the
case may be.”
27. The above principles would apply equally to arbitration proceedings.
Analysis of the facts and legal principles
28. I am of the view that the arbitrator had misdirected himself in not approaching the
application for a postponement on the basis that the first respondent had been granted
an indulgence at the previous postponement of the matter on 26 June 2000. He had
erred in respect of the relevant and correct facts. This fact should have been taken
into account by the arbitrator.
29. The arbitrator misdirected himself about what the reasons for the first postponement
was. During the application for postponement, the applicant’s counsel submitted that
the initial postponement was occasioned by the first respondent. On the other hand,
counsel for the first respondent suggested that it had been because the first respondent
had been refused legal representation. Contrary to the true facts, the arbitrator stated
that it had been the applicant as employer that had opted for the postponement. It is
clear that the arbitrator assessed the facts incorrectly. He did not consider the
appropriate facts when he refused to grant a postponement.
30. The arbitrator misdirected himself when using the fact that he would not be paid in the
event of a postponement as a consideration. The financial considerations incorrectly
weighed heavily with the arbitrator. This appeared to be the arbitrator’s main reason
for not granting the postponement.
31. The arbitrator erred in finding that the first respondent would suffer excessive
prejudice. The first respondent had occasioned the first postponement. The previous
delay from 26 June 2000 to 1 September 2000 was about two months. A further
postponement would not have been more than that. The applicant did not cause the
previous delay. The present dispute was referred to conciliation on 3 August 1999. It
was conciliated on 28 October 1999. The arbitrator did not consider granting an order
of costs to remedy any prejudice suffered by the first respondent. The first respondent
was informed of the circumstances and reasons for the postponement without any
delay. The possible prejudice for the applicant, having to pay R78 960.00 far
outweighs any prejudice caused for the first respondent by a delay of a further two
months which could have been rectified by an appropriate order as to costs.
32. Both witnesses stated in their affidavits that they were traumatised and stressed and
would be unable to testify properly. The arbitrator rejected these facts without any
justification or factual basis.
33. Mr J J Pretorius, who appeared for the applicant, conceded that it would only be fair
for the applicant to be liable for the wasted costs incurred by the first respondent on 1
September 2000. I agree.
34. In the circumstances it is ordered that:
1. (a) The award dated 11 October 2000 under case number GA77248 is
reviewed and set aside and is referred back to the third respondent for a hearing
before a different commissioner.
(b) The applicant is directed to pay the wasted costs incurred by the first respondent
on 1 September 2000 on a party and party scale.
(c) There is no order as to costs of the review application.
FRANCIS J
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
FOR THE APPLICANT : JJ PRETORIUS INSTRUCTED BY ERIC H LOUW ATTORNEYS
FOR THE RESPONDENTS : NO APPEARANCE
DATE OF HEARING : 25 MARCH 2002
DATE OF JUDGMENT : 25 MARCH 2002