1
In the Labour Court of South Africa
Held in Johannesburg
Case number: JR268/ 02
In the matter between:
Northern Training Trust Applicant
and
Josiah Maake First Respondent
Sita Gesina Maria Du Toit Second Respondent
CCMA Third Respondent
___________________________________________________________
Judgment
CELE AJ
Introduction
[1] This is an application to review and set aside a ruling of the first
respondent who dismissed an application to rescind an arbitration
award issued by him in the absence of the applicant . The notice of
motion and founding affidavit state that the applic ation to review
the ruling is in terms of section 145 of the Labour Relations Act 66
of 1995.
2
Background Facts:
[2] The second respondent commenced employment with the applicant
as from 11 March 1996 in terms of a written contrac t of
employment. She was employed as a contract worker w ho would
be remunerated at the rate of R 32-00 per hour for secretarial
related duties. She had to submit a monthly invoice on hours she
would have worked. The memorandum of agreement she made
with the applicant described the agreement of emplo yment as of an
indefinite nature.
[3] On 27 January 1999 the second respondent entere d into another
contract of employment with the applicant. She was then appointed
as a trainer consultant in terms of that memorandum of agreement,
and with effect from 1 February 1999 to 31 March 19 99 Clause 7
of the memorandum of agreement she made with the ap plicant,
listed benefits of permanent employees which she wa s specifically
excluded from.
[4] The second respondent continued to work after 3 1 March 1999. On
22 June 1999 she wrote a memorandum and addressed i t to the
applicant wherein she was questioning her status, t hat is, whether
she was employed as a trainer consultant or as a co ntract worker.
She said that she signed a contract of employment a s a contract
worker and not a trainer consultant. The two positi ons differed in
terms of benefits which the incumbents would be entitled to.
[5] The applicant responded to the second responden t’s letter, with a
memorandum dated 28 June 1999. Her position was des cribed as
3
one of a trainer consultant. There was a reminder that she would be
completing another term of three months of the cont ract of
employment on 30 June 1999. She was then advised to initiate the
renewal of her contract of employment for another t hree months, if
she wished to continue to render her services with the applicant.
[6] On 28 June 1999, the applicant issued a memoran dum which it
addressed to Giyeni training centre. This was its training centre and
it is where the second respondent was based. It was an invitation
which was extended to all contract workers of appli cant to apply
for voluntary severance packages. On 29 June 1999 t he second
respondent applied for the voluntary severance package.
[7] On 5 July 1999 the applicant wrote a letter whi ch it addressed to
the second respondent. It informed her that her con tract of
employment had expired and that her last working day had been 30
June 1999. The second respondent however, continued to report for
work until on one day she come to work to find her office locked.
She had no keys to use in opening it.
[8] A dismissal dispute then arose between the seco nd respondent and
the applicant. Second respondent took the position that she had
become a permanent employee of the applicant who wa s dismissed
without a hearing.
[9] On 26 July 1999 the second respondent referred a dismissal dispute
to the third respondent for conciliation. The dispu te was about
whether there was employer / employee relationship and if so,
4
whether the termination of that relationship amount ed to dismissal
and if so, what the appropriate remedy was.
[10] A conciliation meeting attended to by both par ties took place on 13
September 1999. Attempts at resolving the dispute w ere
unsuccessful. A certificate of outcome was issued t o the second
responded who then referred the dispute for arbitration.
[11] On 9 March 2000 both parties attended the arbi tration proceedings
which were however postponed sine die , without a hearing, at the
instance of the second respondent.
[12] On 25 August 2000 the third respondent issued an arbitration
notification with a date of hearing. This notice wa s to be sent by
telefax to both parties. The date of the arbitratio n proceedings was
given as 22 September 2000 in the notice. The secon d respondent
received the fax notification and attended the arbi tration
proceedings. The applicant did not attend those proceedings.
[13] The second respondent was represented by an at torney at the
arbitration proceedings and she was called as a wit ness. At issue
was the procedural and substantive fairness of her dismissal. The
first respondent was the arbitrator who, once proce edings were
concluded, issued an award with the finding that th e second
respondent had become a permanent employee of the a pplicant. He
found further that the second respondent was dismis sed by the
applicant which dismissal he found, was without a f air reason. He
then ordered the applicant to compensate the second respondent,
who had found work elsewhere, in the sum of R 92 92 5=00. This
amount was said to have been calculated at the rate of the
5
applicant’s remuneration, given as R 63 00 per mont h, from the
date of dismissal to the date of the arbitration proceedings.
[14] On 10 May 2001 the applicant received, by way of a fax
transmission, a copy of the arbitration award with a demand calling
on it to meet the claim or risk the execution of a writ. The applicant
instructed its attorneys to handle this matter. On 21 May 2001
attorneys of the applicant wrote a letter addressed to the third
respondent wherein a request was made for proof of a notification
of set down of the arbitration proceedings. A secon d latter with a
similar request was sent by the same attorneys on 1 3 June 2001.
The record of these proceedings does not have any r eply by the
third respondent to the two letters of the applicant.
[15] On 5 July 2001 the applicant initiated an appl ication for the
rescission of an arbitration award of 5 May 2001 wh ich the
applicant received on 10 May 2001 through attorneys of the second
respondent.
[16] The application for rescission was done by way of notice of motion
accompanied by a supporting affidavit. The second r espondent
opposed this application which she did by filing an d serving an
opposing affidavit. The hearing of the application was set down for
22 September 2001. Both parties were represented by their
attorneys. The first respondent was again the arbit rator. Both
attorneys presented their arguments whilst they rel ied on affidavits
which the parties had filed. At the heart of the di spute was the
question whether the third respondent had notified the applicant of
the date of set down of the arbitration proceedings . The case of the
6
applicant was that no such notice was either sent t o or received by
the applicant. The second respondent’s version was to the contrary.
[17] The first respondent, mero moto , called a case management officer,
one Ms Sannah Seltatjile as a witness. She was an o fficer of the
third respondent whose names appeared in a telefax message. She
testified to the effect that she was the officer wh o had sent notices
of the arbitration proceedings to the parties.
[18] Ms Seltatjile was given two documents marked a nnexure D and E
which she was asked to describe. Annexure D, she sa id was the
notification itself and she described annexure E as fax report. Her
evidence on annexure E was basically that there was an
explanation ex facie the annexure namely, that the operation was
completed with no errors. That to her, meant that t he fax had gone
through to both numbers. She said that she was sati sfied that the
fax went to both destinations and she said the anne xure had both
numbers of recipients to which it said it was succe ssfully
transmitted.
[19] When Ms Seltatjile was asked by the applicants counsel, she said
that the notification showed only one fax number be cause it would
only give the first number. That fax number was of the second
respondent. The fax number of the applicant was not reflected on
the notification. When asked if she could think tha t the fax might
not have been transmitted to the other party, she s aid that, if it was
not, it could show only one number. That concluded the hearing of
the rescission application proceedings.
7
[20] On 28 October 2001 the first respondent issued a ruling for the
rescission application. He dismissed the application. It is this ruling
which the applicant seeks to have reviewed and set aside. The
applicant has also filed an application to amend th e notice of
motion so as to include section 148 (1) (g) of the act as an
alternative to section 145 of the act. Counsel for the second
respondent adopted, correctly so in my view, a rath er pragmatic
approach in not strenuously opposing the applicatio n to amend. In
this respect, I am guided by Mlambo J in Transnet v Hospersa &
Another (1999) 20 ILJ 1293 (LC) when he said:
“…. In my view mis-characterization of the nature of th e review is not fatal. This
court has to look beyond the legal label and consid er the substance of the application.
To look no further than the heading would be unduly formalist”.
That a review application based on sectio n 145, is limited only to
reviews of arbitration awards, to the exclusion of rulings issued by
commissioners in proceedings which are about disput e resolutions
during conciliation or arbitration proceedings, is now trite.
[21] The application for the amendment of the notic e of motion is
accordingly granted as prayed for.
The arbitration award:
[22] The first respondent articulated the question which he was called
upon to answer in the application before him as:
“At issue is whether or not the applicant had properly been notified by
the CCMA of the date on which the arbitration heari ng was to take
place, to wit, the 22 nd September 2000”.
He repeated the essence of what he perceived was th e issue to be
resolved by him when he analysed the evidence befor e him. He
8
then concurred with the submission, made by the sec ond
respondent’s representative that the fact that a no tification had
gone through to the other party, is sufficient proo f of service and
that once an arbitrator is satisfied ex facie the faxination document
that the notification has gone through, he is at large to proceed with
the hearing, in the absence of the other party. He found that there
was sufficient service of relevant notification upo n the applicant
and that its internal lack of communication should not prejudice the
respondent. He then refused the application to rescind the award.
The review application
[23] The application is made on the premise that th e first respondent
erred and therefore committed a gross irregularity in finding that
there had been sufficient service of the relevant n otification upon
the applicant. The first respondent, it is further said, erred in
finding that the applicant’s internal lack of commu nication should
not prejudice the respondent. It is said also that the first respondent
did not allow himself to be guided by principles wh ich are
applicable in a rescission application. And therefo re committed a
gross irregularity.
[24] The second respondent submitted that there was overwhelming
proof that the notification of the arbitration hear ing date was
properly transmitted and received by the applicant’ s office. She
placed reliance on admissions by the applicant that the fax number
allegedly used was a correct number, that applicant had received a
notice of set down for conciliation proceeding thro ugh the same
fax number and a concession by the applicant that t he fax message
9
may have gone through to the office of the applican t. She also
relied on the evidence tendered by Ms Seltatjile.
Analysis
[25] Section 158 (1) (g) of the Act provides that:
“(1) The Labour Court may-
(a)………..
(g) Subject to section 145, review the performance of
any function provided for in this Act on any
grounds that are permissible in law”.
[26] Section 144 (a) of the Act gives the commissi oner the power to
rescind an arbitration award erroneously made in th e absence of
any party affected by that award.
[27] In Northern Province Local Government Association v CC MA
& Others (2001) 5 BCCR 539 (CC) Sutherland AJ had this to
say:
“[46] It seem to me that a Commissioner in consider ing whether or
not a notification of an arbitration hearing has in deed been
received by a respondent, it is necessary to consider all the facts
bearing on that question. Axiomatically, in decidin g whether or
not fax transmission was received, proof that the f ax was
indeed sent creates a probability in favour of rece ipt, but does
not logically constitute conclusive evidence of such receipt.”
[28] The enquiry in an application for the rescissi on of arbitration award
is consequently bipartite. The first leg is one whi ch is concerned
with whether or not the notice of set down was sent (for instance
10
by fax or registered post). Should evidence show th at the notice
was sent, a probability is then created that the no tice sent was
received. The second leg to the enquiry is one whic h concerns
itself with the reasons proffered by the applicant who failed to
attend arbitration proceedings. Such applicant need s to prove that
he or she was not wilful in defaulting, that he or she has reasonable
prospects of being successful with his or her case, should the award
be set aside. However, the applicant needs not nece ssary deal fully
with the merits of the case.
[29] The two requirements of fairness and expeditio n should be
balanced. Where there is an apparent conflict betwe en the two,
fairness should be given precedence lest injustices are done. See
Foschini Group (Pty) Ltd v Commission for Conciliat ion,
Mediation & Arbitration & others ( 2002) ILJ 1597 ( LC);
Halcyon Hotel ( Pty) Ltd t/a Baraza v CCMA & Others ( 2001)
8 BLLR 911 ( LC).
[30] In the present case, the first respondent conc erned himself only
with the first stage of the probe and he made no at tempt to look
further. When he gave a background to the applicati on, he said that
at issue was whether or not the applicant had properly been notified
by the CCMA of the date on which the arbitration he aring was to
take place.
[31] He concluded the reasons for his ruling thus:
“I am more than satisfied on the basis of the fore- going that there was
sufficient service of relevant notification upon th e applicant and its
11
internal lack of communication should not prejudice the respondent. I
here under proceed to hand down my ruling:
Ruling:
In view of the fore-going, the application fails”
[32] In the founding affidavit of the applicant fil ed of record at the
CCMA, the applicant stated that he was not in wilfu l default, that
he had a good and reasonable explanation for not at tending the
arbitration proceedings and that he had excellent p rospects of
success on the merits of the matter. This was all e vidence which
was properly available to the first respondent.
[33] The test to apply in review application such a s the present, was laid
down in Carephone (Pty) Ltd v Marcus N.O. & Others (1998)
19 ILJ 1425 (LAC) as:
“
Is there a rational objective basis justifying the connection made by
the administrative decision – maker between the mat erial properly
available to him and the conclusion he or she eventually arrived at”
[34] Chaskalson P in Pharmaceutical Manufactures of South Africa
in Re ex parte President of the RSA 2002 (2) SA 674 then said;
“[86] The question whether a decision is rationally related to the
purpose for which the power was given calls for an objective enquiry.
Otherwise a decision that, viewed objectively, is i n fact irrational,
might pass muster simply because the person who too k it mistakenly
and in good faith believe it to be rational. Such a conclusion would
place form above substance and undermine an importa nt constitutional
principle”.
[35] The first respondent placed undue emphasis on the fact that the
transmission record showed a successful transmissio n of the fax
12
message. That was by no means, proof of proper noti fication and
regard should have been had to the facts which the applicant placed
before him.
[36] I am informed by the decisions in Cerephone and Pharmaceutical
Manufactures supra, that the first respondents decision not to
rescind his award is reviewable as he misconceived the nature of
the discretion conferred on him by section 144 of the Act. He failed
to take into account all relevant considerations. H e failed to apply
his mind to the relevant issues and has thus commit ted a gross
irregularity. (See also Hira & Other v Booysen & Another 1992
(4) SA 69 (A). Accordingly, I am satisfied that the arbitration
award was erroneously made in the absence of the applicant.
[37] In the notice of motion and in the founding af fidavit, the applicant
did not request this Court to rescind the award. Th e prayer was
only for the review and setting aside of the rescis sion ruling.
However, in the heads of argument and during the he aring of the
application, the applicant asked for the reviewing and setting aside
of the award. The second respondent submitted that the applicant
should be restricted to the prayers as contained in the notice of
motion. In the notice of motion, the applicant did ask though, for a
further and or alternative relief. It is in the int erest of the parties
and of the administration of justice that there sho uld be speedy
resolution of this dispute. I believe I am entitled to adopt a practical
come near in this matter- (See Haleyon Hotel case supr a).
Reference back of the matter to another commissione r, will accord
with the justice of this case
13
Orders:
1. The rescission ruling issued by the first responden t on
28 October 2001 in case number NP 9721 is hereby
reviewed and set aside
2. The arbitration award issued by the first responden t on
5 May 2001 in case number NP 9721 is hereby
reviewed and set aside.
3. The matter is remitted to the third respondent for
arbitration proceedings to be started denovo before
another commissioner.
4. The second respondent is ordered to pay the applica nt’s
costs.
___________________________
Cele AJ
Date of hearing : 22 September 2005
Counsel for the applicant : Adv Grundlingh
Attorneys for the applicant : Jourbert & May Attorneys
Counsel for respondent : Johan Kotze
Attorneys for the respondent : Kruger & Nagel Attorneys
Date of Judgment : 02 December 2005