IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT PORT ELIZABETH
REPORTABLE
CASE NO: P394/2004
DATE HEARD:04/05/05
DATE DELIVERED: 05/05/2005
In the matter between
SHOPRITE CHECKERS (PTY) LTD APPLICANT
and
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION 1ST RESPONDENT
COMMISSIONER JOHN ROBERTSON 2ND RESPONDENT
NYAMEKO WYCHIFFE YENGENI 3RD RESPONDENT
JUDGMENT
Pillay D, J
[1] This application is a review against the ruling of the second
respondent Commissioner who dismissed an application for
rescission.
[2] The applicant had been notified of the arbitration. However, its
representative inadvertently misdiarised the date for a day later,
that is 5 May 2004. The Commissioner applied his mind to this
explanation of the applicant's absence at the arbitration and
rejected it as not amounting to good cause.
[3] The crux of the Commissioner's reasoning is set out in the following
extract:
"In the circumstances it cannot be said that
the award was erroneously sought or
erroneously made in the absence of any
party effected by that award in that the
notice given to the applicant complied in all
respects to the rules in question. The fact
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that the applicant's employee made an
incorrect diary reference does not
effect the question of proper notice and
therefore does not make the award
erroneously sought or erroneously made.
The fact that the entry was incorrectly
diarised does not amount to good cause for
rescission. If this were so then any person
could claim that a matter be rescinded
under section 144 by virtue of the fact that
he either forgot or made an incorrect diary
reference regarding an arbitration hearing.
This would obviously defeat the purpose of
section 144 which was enacted to address
the three categories listed hereunder
only."(sic)
[4] The application for rescission was brought in terms of all the sub
sections of section 144 of the Labour Relations Act No 66 of 1995
(the LRA). As it turned out, submissions in this review were made
only in terms of subsection (a). Nevertheless the Commissioners
ruling comprehensively covered subsection (b) and (c).
[5] Mr Van Zyl, for the applicant, attacked the decision on the basis
that the Commissioner did not look beyond establishing that the
applicant had notice of the arbitration. As pointed out by Mr Quinn
for the third respondent, that is all the Commissioner was required
to do.
[6] Neither section 144, nor Rule 32 of the CCMA require an applicant for rescisson
to show good cause. I am in respectful disagreement with judgments and awards
that require it in applications for rescission of a CCMA decision. ( Goodyear South
Africa (PTY) Limited v CCMA & Others P117/01 unreported at paragraph 15, per
Gering A J.)
[7] Section 165 also does not require good cause to be shown in rescission
applications before the Labour Court. (See The Bantu Electrical Construction v
Gina & Others 1999(4) LLR 387 LC) Only Rule 16A(2)(b) of the Rules of the
Gina & Others 1999(4) LLR 387 LC) Only Rule 16A(2)(b) of the Rules of the
Labour Court require it in the limited circumstances of an application by a party to
rescind an order granted in its absence. Labour Court judgments on what
constitutes good cause are therefore irrelevant for CCMA rescission applications.
The requirement of good cause is a substantive enquiry. It cannot be implied
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from the provisions of either section 144 or Rule 32 of the CCMA.
[8] The parties were not able to refer me to any decision of the Labour
Appeal Court on this issue. I have also not been able to find, in the
time available, any authority to the contrary either. The plain
meaning of the statute and the rule is not to include an enquiry into
good cause in the rescission of decisions of the CCMA. This
interpretation is consistent with the high priority placed as a matter
of policy on the speedy and efficient resolution of labour disputes.
[9] Mr Van Zyl's reliance on Goodyear is also inappropriate as that case dealt with
whether there had been proper notice of the hearing. Good cause is not relevant
to an enquiry as to whether there has been notice. Either there is or there is no
notice.
[10] I disagree with Mr Van Zyl that the Commissioner did not look
beyond Rule 30(2) of the CCMA rules, which require the
Commissioner to be satisfied that the applicant was properly
notified. The Commissioner rejected the explanation because it
could be tendered by anyone seeking rescission under section 144.
The explanation is hard to verify by reference to objective factors. Misdiarising
may be bona fide . It is human error. However, it is also negligence. The
applicant, especially as it is a large corporate, should have in place mechanisms
to avoid such mistakes.
[11] In the circumstances, I hold that good cause is not a requirement in
an application for the rescission of a decision of the CCMA, and
that the Commissioner was not required to take it into account.
However I also find that to the extent that he did take it into
account, he justifiably rejected the explanation as not amounting to
good cause.
[12] The applicant set out a detailed account of the misconduct leading
good cause.
[12] The applicant set out a detailed account of the misconduct leading
to the third respondent's dismissal for a dishonesty related offence.
The Commissioner found that it was not relevant for him to deal
with the prospects of success and the balance of convenience
because of his decision to dismiss the application on the basis of
his analysis of section 144 of the LRA. His analysis passes the
narrow review test of misconduct or a gross irregularity, and the
broad test of irrationality. As it happens, he went further than he
needed to in considering the application by applying his mind to the
issue of good cause and subsection (b) and (c) of subsection 144
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when the award was never challenged on those bases.
[13] The applicant alleged in his application for rescission that it was
always its intention to challenge the third respondent's claim for
unfair dismissal. The Commissioner was aware that the applicant
had attended the conciliation. Accordingly, the Commissioner ought
not to have proceeded with the arbitration. The applicant submitted
that the Commissioner ought to have realised that the it was
seriously intent on resisting the claim.
[14] The facts taken into account by a Commissioner when deciding
whether to continue or adjourn an arbitration when the respondent
fails to appear are not necessarily the same as for an application for
rescission under section 144.
[15] The applicant's attendance at the conciliation was not the only
information before the Commissioner. The third respondent had
submitted to the Commissioner that
(a) the notice that was received by the applicant was
clear;
(b) the applicant did not take the matter seriously because he either
failed to diarise it or negligently and recklessly misdiarised it;
(c) The third respondent should not be punished for
the applicant's mistake;
(d) the applicant was aware of the arbitration because Mr
Claassen, a manger of the applicant, was one of the
witnesses and the third respondent had informed him
of the date of the arbitration;
(e) The pages attached to the applicant's affidavit could
have been taken from any diary and written into and
therefore was not necessarily authentic evidence of
the applicant's error;
(f) Mr Claassen had advised the third respondent that he
was not in Grahamstown and that he was in Port Elizabeth and could not
attend the hearing, and had enquired whether there was any other
representative for the applicant at the arbitration;
representative for the applicant at the arbitration;
[16] The third respondent informed the Commissioner of the aforegoing
and, after waiting for an hour with no appearance for the applicant,
the Commissioner proceeded with the arbitration.
[17] These allegations are denied in the replying affidavit in the
rescission application. However, the applicant is in no position to
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dispute what the third respondent says he communicated to the
Commissioner. If he did communicate that to the
Commissioner, even if that information was false, the
Commissioner was entitled to rely on it at that time in exercising his
discretion in terms of section 138(5)(b). The Commissioner
committed no reviewable irregularity by not telephoning the
applicant before commencing the arbitration. On the basis of the
information before him he was entitled to be satisfied that the
applicant had received proper notice of the arbitration.
[18] The criteria when exercising a discretion in a rescission are
different. The discretion under section 138(5)(b) is open ended and
subject only to the common law requirement that it be exercised
judicially. On the other hand, the discretion exercised in a
rescission application is strictly regulated by section 144. The
exercise of the discretion in terms of section 138(5)(b) is a separate
ground of review and must be specifically pleaded. That was not
done here.
[19] In Goodyear the learned Judge erroneously, in my respectful view, conflated the
exercise of the discretion in terms of section 138(5)(b) and 144 at paragraphs 18
and 19 of that judgment. The facts in support of a section 138(5)(b) may be
relevant to the discretion exercised under section 144, for example, to show that
the Commissioner was misled and hence the granting of the award was
erroneous. This is a review of the refusal to rescind the arbitration award. The
material facts on which this application is based are not in dispute.
[20] The applicant contends that the Commissioner did not apply his mind to the
prospects of success. It is not prejudiced for, even if the Commissioner had
applied his mind to the issues relating to the prospects of success, he probably
would not have been able to make any findings in view of the disputed facts
apparent from the affidavit. Alternatively, he might well have come out on the side
of the third respondent by applying the PlasconEvans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd 1984 (3) SA 623 (A) test. Furthermore, the third respondent had
been unemployed for some time and there was no reason why relief should be
delayed on account of the applicant's error.
[21] Effectively, the rescission was brought to cure the inefficiencies
within the applicant's administration. It claimed an indulgence and
was unsuccessful before the Commissioner. Now it attempts to find
fault with the Commissioner. The Commissioner's decision is not
reviewable on any of the grounds. As grounds of the appeal, the
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applicant still has a hard row to hoe.
[22] In my view there is an emerging consensus in the industrial
relations community that the systems and institutions established
under the LRA eight years ago, in particular the CCMA and the
labour courts, are not functioning optimally. Originally, these
institutions were conceived as providing a quick, efficient and free
public service. The CCMA was devised as a one stop dispute
resolution shop. Dismissals which constitute the bulk of the
disputes were meant to be resolved by a two stage process of
conciliation and arbitration. An attempt was made by introducing the
conarb in the 2002 amendment to the LRA to make the two stage
process seamless. As it is used so infrequently, it has not
succeeded in improving the efficiency of dispute resolution.
[23] Whereas the review was intended to be exceptional, it is now fast
becoming the norm. This change was brought about somewhat
unexpectedly when the new Constitution (Act 108 of 1996), which
was adopted after the LRA was drafted, was so interpreted by the
Labour Appeal Court as to introduce rationality as an additional
ground of review. However, the rationality test has become so
distorted, that it has blurred the distinction between appeals and
reviews.
[24] A critical stage has been reached in our labour law jurisprudence. A
serious attempt must be made to restore dispute resolution to the
two stage process as originally intended, instead of the five stage
process that it is fast becoming. If this is not done urgently the
efficiency of the CCMA and the labour courts are at stake.
Needless to say the impact of that on the economy can only be
adverse. To reverse the current trends, responsibility rests on the
adverse. To reverse the current trends, responsibility rests on the
litigants to be circumspect about the cases they prosecute to avoid
abusing the free dispute resolution services. Equally, the courts
have a duty to discourage appeals that present in the guise of
reviews.
[25] To conclude: good cause is not a requirement for rescission before the CCMA.
Negligence, even it if is bona fide , is not good cause. A review is not a remedy to
cure the inefficiency of a party seeking an indulgence. It is a cost that must be
contained the moment inefficiency is discovered. There is no reason to allow it to
infect the efficiency of either the CCMA or the labour courts that are straining
under great costs to the taxpayer to operate efficiently.
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[26] In the circumstances the application for review is dismissed
with
costs.
________
Pillay D, J
FOR THE APPLICANT: Mr C. Van Zyl
Van Zyl Incorporated
FOR THE RESPONDENT: Adv. R. P. Quinn SC
INSTRUCTED BY: Mili Attorneys
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