Association of Mineworkers and Construction Union (AMCU) v Bargaining Council for the Civil and Engineering Industry (BCCEI) and Others (JR 796/18) [2020] ZALCJHB 139 (12 August 2020)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JR 796/18

In the matter between:

ASSOCIATION OF MINEWORKERS AND CONSTRUCTION

WORKERS UNION (AMCU) obo DLAMINI AND ANOTHER

Applicants

and

THE BARGAINING COUNCIL FOR THE CIVIL AND

ENGINEERING INDUSTRY (BCCEI)

First Respondent

DIBDEN R.A N.O

Second Respondent

STEFANUTTI STOCKS CONSTRUCTION & MINING

BUSINESS UNIT, a division of STEFANUTTI

STOCKS (PTY) LTD

Third Respondent

Heard: 29 July 2020 (via Microsoft teams)

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to

be handed down at 10:00 on 12 August 2020

JUDGMENT

TLHOTLHALEMAJE, J

[1] In this opposed application, the applicants seek an order reviewing and setting aside the rescission ruling issued by the second respondent (Arbitrator) dated 23 March 2018, and to have the matter referred back to the first respondent (BCCEI) for a ruling before another Arbitrator, or in the alternative, for the Court to substitute the decision of the Arbitrator.

[2] The individual applicants (Messrs Shadrack Dlamini and Bonakele Mbatha) were dismissed by the third respondent (Stefanutti) on 16 October 2017. An unfair dismissal dispute was referred to the BCCEI and conciliation proceedings held on 22 November 2017 failed to resolve the dispute.

[3] The matter was then referred for arbitration and set down for a hearing on 23 January 2018. The applicants failed to make an appearance at that hearing and the matter was then dismissed. The applicants then filed an application for rescission of the dismissal ruling on 22 February 2018 together with an application for condonation. The application for rescission and condonation were opposed by Stefanutti.

[4] In an affidavit in support for applications for rescission and condonation deposed to by Mr Thabo Petrus Tsotetsi, the following averments were made;

4.1 After Tsotetsi received a call from the individual applicants enquiring about their matter, he had contacted the BCCEI and a copy of the dismissal ruling was sent to him on 20 February 2018.

4.2 Neither Tsotetsi nor the individual applicants were aware of the dismissal or of the set-down notice, as AMCU’s ‘trainee admin’ made a mistake by not bringing the notice to his attention.

4.3 In regards to the prospects of success, it was stated that in regards to procedural fairness, the individual applicants were not given an opportunity to state their case and defend themselves, and thus the procedure followed was unfair.

4.4 In regards to substantive fairness, it was stated that; “the whole shift was handed the same charges. However, when it came to the application of discipline, the respondent was unfair in its selection. The applicants were dismissed while they did not initiate or participate in any form of misconduct.”

[5] In opposing the rescission and condonation applications, Stefanutti’s Industrial Relations Manager, Mr Jacobus Philippus Nienaber had averred that;

5.1 The notice of set-down was not only emailed to AMCU, but that two ‘SMSes’ were also sent to the details provided in the referral form, and to Mr N Mazibuko of on 27 November 2017 and 20 January 2018 respectively.

5.2 Two further SMSes were sent to Ms Ester Mabena, AMCU’s admin executive at its head office on 27 November 2017 and 20 January 2018, and also that an email and a fax were sent to AMCU’s Regional Office.

5.3 The excuse surrounding errors on the part of the trainee admin person was therefore not an acceptable one.

5.4 The individual applicants enjoyed very little or no prospects of success on the merit as company procedures were followed in dismissing them for misconduct.

5.5 The dismissal was also fair as they were dismissed for incitement, whilst other employees were issued with warnings for leaving the workplace early without permission.

[6] The Arbitrator found that the rescission application was lodged on time. In dismissing the application for rescission, the Arbitrator held that the explanation by AMCU did not address the issues raised in the answering affidavit related to the multiple emails, faxes and SMSes, nor the contentions that the set down notices were sent to both AMCU’s head and regional offices. The Arbitrator also rejected the explanation in regards to the alleged errors by the admin trainee in the absence of a confirmatory affidavit, and blamed AMCU for being tardy, and further found the explanation for the default to be weak. The Arbitrator concluded by stating that; ‘a good reason could offset weak prospect but that weak reason did not mitigate for rescission’.

[7] The principles applicable to reviews of arbitration awards are trite. It can only be reiterated that an arbitration award will be set aside, if it is established that the decision arrived at by the Commissioner is one which a reasonable decision maker could not have arrived at in the light of the material placed before him/her. An arbitration award or decision will be reviewable if it is not supported by the evidence placed before the Commissioner, or where the conclusions reached by the Commissioner were without any deductive reasoning. Reasonableness is therefore the yardstick against which an award is assessed[1].

[8] The principles governing rescission applications at the CCMA or bargaining Councils flow from the provisions of section 144 of the

Labour Relations Act (LRA)[2]. Thus, an arbitrator may on application or on his/her own accord, vary or rescind an arbitration award or ruling made in the absence of any party on good cause shown. Good cause entails that there is a reasonable explanation for the default; that the application is made bona fide; and that there is a bona fide defence to the plaintiff's claim, which prima facie has some prospects of success[3]. This point was further made in Shoprite Checkers (Pty) Ltd v Commissioner for Conciliation Mediation and Arbitration and Others[4], where it was held that:

‘The test for good cause in an application for rescission normally involves the consideration of at least two factors. Firstly, the

explanation for the default and secondly whether the applicant has a prima facie defence. In Northern Province Local Government Association v CCMA and Others [2001] 5 BLLR 539 (LC) at 545, paragraph [16], it was stated:

“An applicant for the rescission of a default judgment must show good cause and prove that he at no time denounced his defence, and that he has a serious intention of proceeding with the case. In order to show good cause an applicant must give a reasonable explanation for his default, his explanation must be made bona fide and he must show that he has a bona fide defence to the plaintiff’s claims.”’[5]

[9] In MM Steel Construction CC v Steel Engineering & Allied Workers Union of SA and Others[6], it was held that while the absence of one of the two essential elements would usually be fatal, they are not to be considered

mechanically and in isolation, but they are to be weighed together with other relevant factors in determining whether it should be fair and just to grant the indulgence.

[10] Central to the grounds of review is whether the Arbitrator properly interpreted and applied the provisions of section 144 of the LRA in determining the application for rescission of the dismissal ruling, and whether on the facts and circumstances of this case, rescission ought to have been allowed, or refused.

[11] The applicants contend that the Arbitrator failed to consider both elements in the test for good cause and thus incorrectly applied the applicable principles. Specific reference was made to the Arbitrator’s conclusion that; ‘The explanation for non-attendance was weak… A good reason can offset weak prospects, but a weak reason does not mitigate

rescission’. In this regard, it was submitted that the Arbitrator failed to consider whether the individual applicants had prima facie prospects of success in their unfair dismissal claim.

[12] In regards to the first element of the test of good cause, the question that arises is whether there was an acceptable, reasonable and bona fide explanation proffered for the default on 23 January 2018, or whether the default was wilful.

[13] I have difficulties in appreciating the submissions made on behalf of the applicants in respect of the findings made by the Arbitrator in regards to the explanation. It cannot be correct that by the Arbitrator finding that the explanation for the default was weak, it was clear that he had accepted that there was an explanation, but that he did not find that there was no explanation provided, nor did he find that the explanation provided amounted to no explanation at all. The mere fact that the Arbitrator found that there was an explanation is not the end of the enquiry, nor is there a requirement that the Arbitrator must find that the explanation amounts to no explanation at all. The issue remains whether the explanation is reasonable, bona fide and acceptable enough to mitigate wilfulness.

[14] In this case, the Arbitrator‘s decision to reject the applicants’ explanation was reasonable given the circumstances of the case, and the weakness of that explanation. The Arbitrator correctly pointed out that no answer was proffered to Stefanutti’s averments that several emails, SMSes and faxes were sent to the individuals within AMCU at both the Head and Regional offices. Given the default in the light of no less than seven various notices and reminders to both AMCU’s head and regional offices, it is clear that even if there was an explanation, it was neither reasonable nor bona fide, and that on the contrary, wilfulness was clearly established. The fact that the individual applicants did not file any confirmatory or separate affidavits in support of the rescission in my view was equally fatal in the conclusions regarding wilfulness.

[15] It is further apparent that AMCU’s explanation for its default and those of the individual applicants is exculpatory, as it appears to lay all the blame on the unnamed ‘admin trainee’. Stefanutti had raised concerns about there being no confirmatory affidavit from this individual to explain the circumstances that led to the alleged omission to bring the notices to the attention of the official dealing with the matter or Tsotetsi of AMCU. All that was needed from AMCU in this regard, was a confirmatory affidavit from the unnamed admin trainee. Thus, even if it is accepted that as a general rule, a party must make out its case in the founding affidavit, and cannot do so in reply, this rule is not an absolute[7] Furthermore, given the nature of proceedings before the CCMA or Bargaining Councils, and further in the light of the powers of Commissioners under the rules applicable to the conduct of proceedings at those forum, it is doubted that Commissioners would be overtly technical when confronted with new issues raised in replying affidavits, and refuse to consider whether exceptional circumstances exists for the new material to be accepted.

[16] It was submitted on behalf of the applicants that even if the trainee admin was negligent, the individual applicants cannot be punished for that negligence. However, as it was correctly pointed out on behalf of Stefanutti, it is only in circumstances where the person blamed for the default at least made some attempt to explain the circumstances that led to the alleged mistake. No attempt was made to file a replying affidavit in view of the serious concerns raised by Stefanutti, especially also in regard to the other individuals within AMCU to whom the notices of set-down were addressed. It was therefore not sufficient for the applicants to simply apportion blame to the unnamed admin trainee, fail to explain what the other individuals did upon being served with the notices at both the head and regional offices, and wash itself of the matter. I equally agree with the submissions made on behalf of Stefanutti, that Tsotetsi’s explanation was purely based on hearsay.

[17] In Harris v ABSA Bank Ltd t/a Volkskas[8], which was referred to with approval in Pack N Stack v Commissioner Khawula N.O and others[9], the principles that ought to guide a court in the determination whether a party was in wilful default were set out as follows;

‘Before an applicant in a rescission of judgment application can be said to be in “wilful default” he or she must bear knowledge of the action brought against him or her and of the steps required to avoid the default. Such an applicant must deliberately, being free to do so, fail or omit to take the step which avoid the default and must appreciate the legal consequences of his or her actions.’

[18] In the absence of any reply to Stefanutti’s contentions in its answering affidavit in opposition to the rescission application, it can be accepted that the notices of set down were properly sent to the applicant at two offices and to several individuals via fax, emails and SMSes by the BCCEI; that the individuals to whom the notices were sent knew of the set down date and failed to take any steps to avoid the default. Clearly the Arbitrator had no choice but to correctly point out that AMCU was tardy, which tardiness in line with Steenkamp and others v Edcon Limited[10] as referred to on behalf of Stefanutti, is inexcusable. The Arbitrator’s conclusions that the explanation proffered for the

default was weak was therefore unassailable under the circumstances.

[19] Central to the applicants’ contentions is that the Arbitrator failed to consider at all, the second leg of the enquiry, which is whether the individual applicants had prima facie prospects of success. In this regard, the applicants contended that the arbitrator misconceived the nature of his discretion by failing to weigh the reasons for the default together with the prima facie prospects of success, and to determine whether it would be fair and just to grant the rescission having weighed the two elements

together.

[20] In Pack n Stack v Khawula N.O and Others, [11] it was held that the most important tool to determine whether a commissioner’s decision is one which a reasonable decision

maker could make is the reasons for the decision, and that although the reasons must be brief they must deal with the important issues; that shows that he/she understood what he/she was supposed to consider.

[21] In this case, after concluding that the explanation for the default was weak, the Arbitrator simply concluded that; ‘A good reason can offset weak prospects but a weak reason does not mitigate for rescission. Tardiness cannot be a good reason’.

[22] The applicants take issue with these conclusions, and contend that the Arbitrator made no effort to consider whether prima facie prospects of success were demonstrated, and thus committed a reviewable irregularity. In regards to prospects of success, Tsotetsi in seeking a rescission had merely averred that;

‘The Applicants have good prospects of success. Procedural fairness: The Applicants were not given an opportunity to state their case or defend themselves, hence the procedure being followed was unfair.

Substance: The whole shift was handed the same charges. However, when it came to the application of discipline, the respondent was unfair in its selection. The Applicants were dismissed while they did not initiate or partake in any form of misconduct, hence the referral to the BCCEI for unfair dismissal’

[23] It was submitted on behalf of the applicants that based on the above, if it were established at arbitration that the individual applicants were not afforded an opportunity to state their case or to defend themselves, or that Stefanutti was selective in its application of discipline, and that the individual applicants did not incite or commit any misconduct, this would render their dismissals procedurally and substantively unfair.

[24] It was correctly pointed out on behalf of Stefanutti that the issue is whether a case for prima facie prospects of success was made out, and whether there was anything before the Arbitrator that he failed to consider. In the light of the above averments made in support of the rescission application, it was submitted that the Arbitrator had nothing more to work with, as these did not assist him in assessing the prospects of success. It was further submitted that from those submissions, it was not clear what the individual applicants were dismissed for, and how the dismissal was unfair. On the other hand, Stefanutti had filed a comprehensive answering affidavit in which it explained that the individual applicants were dismissed for incitement whereas other individuals were issued with warnings for leaving their workplaces without permission.

[25] With regard to the conclusions reached by the Arbitrator as mentioned above, it is apparent that the reasons are indeed brief, and the questions remains whether the important issues surrounding prima facie prospects of success were dealt with. Inasmuch as it is accepted as submitted on behalf of the applicants that there is no need for elaboration in the founding affidavit in regards to the prospects, and that only prima facie prospects need be demonstrated, at the same time however, any submissions made in that regard must have a solid factual foundation.

[26] At face value, the Arbitrator’s assessment of the prima facie prospects of success are not immediately discernible from the reasons given, because at the core of that conclusion is that the weak reason did not mitigate for rescission. Implicit in that conclusion however, is that the prospects were weak. The mere that the Arbitrator did not explain the basis of that weakness is in my view, not fatal in the light of the conclusions below.

[27] Even if it can be argued that it is not clear whether or not the Arbitrator had dealt with these issues, the question that arises is what it was then, that the Arbitrator missed out on or failed to consider, that was placed before him, for a conclusion to be reached that prima facie prospects of success were demonstrated.

[28] I am in agreement with the submissions made on behalf of Stefanutti that there was nothing of substance placed before the Arbitrator, and that Tsotetsi’s averments in regard to prospects of success were mere general statements that said little or nothing. Even if the Court may be incorrect in this regard, and may agree that the any averments in regard to prima facie prospects of success were not fully considered, there is another factor which in my view is dispositive of this issue, which is whether the averments in regard to the prospects of success were or are within Tsotetsi’s personal knowledge.

[29] It is common cause that Tsotetsi is AMCU’s Regional Chairperson, and even though it is accepted that he is authorised to depose to the affidavits on behalf of AMCU and the individual applicants, it is not known how the circumstances of the latter’s dismissal are within his personal knowledge. A whole range of allegations were made by Tsotetsi in the founding affidavit before the Court in regards to the circumstances leading to the dismissal of the individual applicants, but it is not demonstrated how these issues are within Tsotetsi’s personal knowledge. Furthermore, these allegations were hardly served before the Arbitrator, and I agree with submissions made on behalf of Stefanutti that these ought to be ignored. Ultimately, in the absence of confirmatory affidavits from the individual applicants in regard to prospects of success, it follows that there was nothing that was placed before the Arbitrator for consideration. Effectively, Tsotetsi’s allegations in regard to prima facie prospects had no factual basis.

[30] In the end, it follows that any prejudice that the individual applicants may complain of should be placed squarely at the door of AMCU. As it was correctly pointed out on behalf of Stefanutti, it cannot be fair for it to be prejudiced in having to defend this matter, in circumstances where AMCU was tardy in attending to it, inclusive of failing to make a proper case on behalf of the individual applicants. Consequently, it ought to be concluded that on a conspectus of all the factors to be considered under good cause, the decision to refuse rescission was fair and just, and that the outcome reached by the Arbitrator ultimately fell within the bounds of reasonableness.

[31] I have further had regard to the requirements of law and fairness in regards to an award of costs, and I am of the view that the facts and circumstances of this case do not call for a costs order.

[32] Accordingly, the following order is made;

Order:

1. The Applicant’s application to review and set aside the rescission ruling issued by the Second Respondent on 23 March 2018 is dismissed.

2. There is no order as to costs.

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicants: Adv. S Collet, instructed by Larry Dave Incorporated Attorneys

For the Third Respondent: Adv. E Tolmay, instructed by Webber Wentzel

[1] See De Beers Consolidated Mines Ltd (Venetia Mine) v National Union of Mineworkers & others (Case no: JA83/18; Delivered on 11 December 2019)

[2] Act 66 0f 1995, as amended, section 144: Variation and rescission of arbitration awards and rulings Any commissioner who has issued an arbitration award or ruling or any other commissioner appointed by the director for that purpose, may on that commissioner's own accord or, on the application of any affected party, vary or rescind an arbitration award or ruling – (a) erroneously sought or erroneously made in the absence of any party affected by that award; (b) in which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission; or (c) granted as a result of a mistake common to the parties to the proceedings. (d) Made in the absence of any party, on good cause shown

[2] Act 66 0f 1995, as amended, section 144: Variation and rescission of arbitration awards and rulings

Any commissioner who has issued an arbitration award or ruling or any other commissioner appointed by the director for that purpose, may on that commissioner's own accord or, on the application of any affected party, vary or rescind an arbitration award or ruling –

(a) erroneously sought or erroneously made in the absence of any party affected by that award;

(b) in which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission; or

(c) granted as a result of a mistake common to the parties to the proceedings.

(d) Made in the absence of any party, on good cause shown

[3] Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) at 9C-F para 11

[4][4] (2007) 28 ILJ 2246 (LAC)

[5] At paras 25 -36

[6] (1994) 15 ILJ 1310 (LAC) at 1311J – 1312A

[7] Smith v Kwanonqubela Town Council 1999 (4) SA 947 (SCA) at page 955 at paragraph [15]

[8] 2006 (4) SA 527 (T) at para 8.

[9] (DA05/15) [2016] ZALAC 31; (2016) 37 ILJ 2807 (LAC) at para 13

[10] 2019 (7) BCLR 826 (CC); (2019) 40 ILJ 1731 (CC); [2019] 11 BLLR 1189 (CC) at para 41

[11] Supra at para 20