IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NUMBER: JR991/01
In the matter between:
Applicant
and
First Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
COMMISSIONER ALRED MATABANE Third Respondent
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J U D G E M E N T
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1 On the 9 th of November 2000 the Applicant employer dismissed its employee, the
First Respondent. The dismissal is confirmed in an appeal heard on the 23 rd of
December 2000. The First Respondent was not satisfied with the outcome and
referred the matter to the CCMA for conciliation. When that failed, the matter
was referred to the CCMA for arbitration. Communication of the hearing of the
CCMA arbitration was communicated to the Applicant by telefax. The date for
the hearing was 16 March 2001. On the date of the hearing, the Applicant was not
represented. The Commissioner who heard the matter, the Third Respondent,
concluded that service had been properly effected on the Applicant and dealt with
the matter in the absence of any representation. The Third Respondent heard the
case put forward by the First Respondent and decided that the dismissal was
unfair. He ordered consequent relief.
2 When the award was drawn to the attention of the Applicant, and application to
rescind the award handed down on the 24 th of March was launched. That
application is before me.
3 The basis for the rescission is essentially that although the telefax communication
may well have been received at the telefax number of the Applicant used by the
officials of the CCMA, the notice did not reach the desk of anyone who
appreciated its significance and could react thereupon. It was contended by the
Applicant to the Third Respondent at the rescission application hearing that the
telefax number used by the CCMA was the general fax of the Applicant’s
reception and not the fax in the Human Resources Department. It was further
suggested that huge delays took place in identifying who was the responsible
person to give attention to faxes which arrived at the general office and that such
difficulty was exacerbated by the fact that the notice faxed to the Applicant’s
office had no reference number on it which could easily identify to whom it
should be referred within the organisation of the Applicant. The Applicant’s
organisation it is said is a large and bureaucratic one.
4 Rescission applications of this nature require the presiding officer who is
responsible for deciding them to give consideration to whether or not in truth the
party who was in default at the time when judgment was granted or an award
handed down, was unaware of the hearing. If that fact is established, the
explanation for the unawareness must be considered and if the explanation is
reasonable that provides the basis for the rescission of the award or judgment as
the case may be. The Third Respondent, in articulating the test which he employ
expressed himself as follows:
1 “The test in matters of this nature has always been whether the Applicant
in failing to attend the hearing was in wilful default and was negligent. ”
No criticism can be advanced of articulating the test in those terms, although one
may well quibble as to whether or not it correctly articulates the whole test which
is required.
5 The Third Respondent goes on to identify the essence of the debate which was
conducted before him. He points, appropriately, to the fact that the Applicant
expressed its grievance at the choice of the general fax number and the omission
of any reference number on the document which would have facilitated a speedy
redirection to the appropriate person. Axiomatically, implicit in that articulation
of the Applicant’s compliant is the consequence thereof that it did not come to the
attention of a person who could responsibly deal with it.
6 The Third Respondent then articulates himself as follows:
“It is common cause that the Respondent was dismissed on 9 November 2000. An
appeal hearing was held on 23 December 2000. It is admitted by the Applicant
that the Respondent did mention in that appeal hearing that the matter was
already with the CCMA. The Applicant by its own admission decided not to take
the Respondent’s word seriously and concluded that because the Respondent
could not “furnish them with documentation and because he also participate fully
in the appeal process” he was lying. It took no steps to verify that aspect further
with the Applicant or the CCMA. The Respondent was under no obligation to
“furnish” the Applicant with the CCMA documents in the appeal hearing. Again
the Applicant admits to having received the letter dated the 14 th of December 2000
from the Applicant’‘s attorney in January 2001. In the letter the attorneys
clearly mentioned that the matter had been referred to the CCMA for arbitration
already. Yet again the Applicant did nothing to verify with either the attorneys
themselves or the CCMA the socalled “validity of the information”. ( In this
passage of course, the reference to Applicant and Respondent is as they were in
the CCMA and not in this application ).
7 In my view the criticism of the Third Respondent of the Applicant is
inappropriate. It appears that he took the view that once there was
correspondence or an informal communication that the matter would indeed come
before the CCMA at some time, some obligation then arose on the part of the
Applicant to investigate why no service of documentation had arrived. That
cannot be correct. No party who is threatened with litigation can be burdened
with the obligation to verify whether or not that has taken place. It is the very
purpose of the initial service of documentation initiating litigation, which warrants
imposing any kind of obligation whatsoever on a party to litigation. In my view
the assumptions are implicit in the Third Respondent’s criticism are wholly
invalid.
8 The Third Respondent articulates himself further as follows:
“Bu its own admission again, the Applicant states that the letter in question was
too urgent and was received late due to the fax number that was used. It however
did nothing to alert the relevant parties about the delay it was experiencing as a
consequence of the fax number that was being used. The Respondent and his
representative were therefore entitled to continue to use that same fax number and
from which the Applicant had received and responded to their correspondence.
The question of the delays were never brought to the Respondent or his attorney’s
attention, nor was it brought to the CCMA’s attention. I find therefore on the
facts that proper notice was served on the Respondent and its failure to attend the
hearing was caused by its willful and negligent conduct in its handling of its
correspondence.”
9 In my view this passage illustrates yet again a misconceived approach on the part
of the Third Respondent. In the first place, the notion that the correspondence of
the Applicant was dealt with in an allegedly “ willful and negligent conduct ” is not
to be confused with the enquiring as to whether or not the reason for the absence
of the Applicant at the CCMA hearing is the result of willful neglect. Moreover,
to construe the failure to take the initiative to communicate to the First
Respondent or his representative or to the CCMA’s officials, that the fax number
which they were using was less appropriate than another fax number, is not
something which properly should be given weight in determining that the
Applicant has behaved willfully and negligently. Axiomatically, it is a nonsense
to suggest that the CCMA should have been informed when the very problem was
that the Applicant was unaware that the CCMA was endeavouring to
communicate with it. The suggestion that the First Respondent or his
representatives should have been told that the letter of the 14 th of December took a
long time to reach the desk of the responsible person via a particular fax number,
is not something that can be given weight to determine that the absence of the
Applicant at the hearing was the result of any wilfulness or negligence.
10 The Third Respondent then seeks to distinguish certain authorities in the High
Court and in this Court, which gave weight to the fact that parties who were absent
at hearings, intended at all times to proceed and defend the claims made against
them. He justifies the distinctions between the cases illustrated by those
authorities, and the present by saying the following:
“... (there) it was held in favour of a party who would have at all times intended to
proceed or defend the relevant application and it was found that the reasons why
it had not been present was that it had no knowledge of the set down. The
current situation is the result of the Applicant’s inept and reckless attitude
towards this matter. ”
11 It is not altogether plain to me whether the Third Respondent made a finding that
the Applicant in this matter did not have an intention to proceed and defend the
relevant application or indeed made a finding that they had such an intention, but
notwithstanding that intention they had behaved in an inept and reckless attitude.
As there is no factual foundation for the former conclusion, I am inclined to
interpret his remarks as meaning the latter. However, his characterisation of the
conduct of the Applicant on these facts as inept and reckless is wholly without
foundation. It is manifestly obvious from the Third Respondent’s own findings
of fact that as a matter of fact the Applicant did not have knowledge of the
hearing. The real enquiry should have been into whether or not that genuine
ignorance on the part of the Applicant and its officials was attributable to some
factor that was blameworthy. The high point of blameworthiness from the
prospective of the Third Respondent is that they did not take the trouble to initiate
cheques when they had heard that litigation was pending and that they did not alert
the First Respondent or his representatives that there was an unavoidable delay if a
particular telefax number was used to communicate with them.
12 The test to be applied as to whether or not the Third Respondent conducted
himself appropriately is that which is set out in Carephone (Pty) Limited v
Marcus N.O and Others (1998) 19 ILJ 1425 (LAC) in which it was stated that
there must a rational connection between the conclusions reached by the
Commissioner and the material which is placed before him. In my view, there is
a clear absence of a rational connection between the material considered by the
Third Respondent and the conclusion reached by him. The problems which arose
for consideration by the Third Respondent illustrate the dangerous practice of
service by telefax, provided for in the Labour Relations Act. It is one thing for
parties who have formally communicated with each other and aware that they are
engaged in litigation, to furnish one another a telefax number at which they will
accept further service of documentation. However, it is plainly clear that
telefaxing the initial documentation, which sets in train the rest of the prehearing
steps which must be taken by litigating parties, and which reasonably should put
them on their guard to look out for further communications in regard to the
litigation, is not well served by the method of telefaxing. It is plain from anyone
who attends the hearings of the Labour Court, that the enormous growth in
applications for rescission in circumstances where the Respondent party claims
that albeit on the face of it a telefax transmission was sent, it was not received or
did not reach the person responsible for giving it attention, leads to the conclusion
that the provisions of the Act in this regard require reconsideration. In my view, it
is appropriate that the Rules Board for the Labour Courts gives its attention to this
matter of procedure.
13 Having regard to the view which I have taken as set out above, it is not necessary
for me to entertain the contentions and counter contentions on the other issues
raised in the matter before me. It is clear that the refusal of the rescission by the
Third Respondent must be set aside.
14 Accordingly, I make an order as follows:
14.1 The decision of the Third Respondent handed down on 29 June 2001
refusing rescission of an award handed down by the Third Respondent on 24 March 2001
in case number GA 118744 is set aside.
14.2 The First Respondent, at his election, may refer the matter afresh to the CCMA for
a hearing into whether or not his dismissal was fair or unfair within ninety days of
the date of this judgment.
14.3 There will be no costs order.
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ROLAND SUTHERLAND
ACTING JUDGE OF THE
LABOUR COURT OF
SOUTH AFRICA
25 June 2002