Bidvest Vericon Outsourcing (Pty) Ltd v NUMSA and Another (JR3000/19) [2023] ZALCJHB 297 (24 October 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR3000/19

In the matter between:

BIDVEST VERICON OUTSOURCING (PTY) LTD Applicant And NUMSA First Respondent THANDOKAZI NDUMELA Second Respondent ALLEN KAYME N.O. Third Respondent CCMA Fourth Respondent

Heard: 29 June 2023

Delivered: 24 October 2023

JUDGMENT

BALOYI, AJ

Introduction

[1] The applicant seeks an order reviewing and setting aside the arbitration award issued by the third respondent (the Commissioner) acting under the auspices of the fourth respondent, the Commission for Conciliation, Mediation and Arbitration (CCMA).

[2] In the award, the Commissioner found that the dismissal of Thandokazi Ndumela, (the second respondent) was procedurally fair but substantively unfair. The Commissioner ordered that the second respondent be reinstated with a back pay of R36 435.61.

Background

[3] The second respondent was employed by the applicant as a Shift Manager. She was dismissed on an allegation that she loaded incorrect pallets of bottles to a customer. The pallets were subsequently delivered to a customer in Namibia.

The arbitration proceedings

[4] In the arbitration proceedings, the applicant did not present any evidence. The applicant’s representative indicated to the Commissioner that one Mr Thomas Landman (Landman) was employed by the applicant and that Landman was the second respondent’s manager and had handled the disciplinary hearing against the second respondent.

[5] It was submitted to the Commissioner that Landman was supposed to be a witness to the case on behalf of the applicant and was further supposed to bring along the documentary evidence to be used during the arbitration.

[6] It was submitted further that the applicant only knew a day before the arbitration proceedings that Landman would not be able to attend the hearing. Accordingly, it was submitted before the Commissioner that the applicant does not have evidence to present or a witness to call. The applicant accordingly closed its case without calling a witness.

[7] The second respondent assisted by Numsa was then requested by the Commissioner to present her case. The second respondent led her evidence and was thereafter briefly cross-examined by the applicant’s representative.

Grounds of review and evaluation

[8] The main ground of review advanced by the applicant is that the Commissioner failed to apply his mind to the postponement application of the arbitration proceedings.

[9] To support this ground of review, the applicant contends that before the arbitration hearing commenced, an application for a postponement of the arbitration was made before the Commissioner. It is contended that the application was not recorded by the Commissioner and that the Commissioner did not give reasons for refusing the postponement. It is further contended by the applicant that the second respondent did not oppose the postponement application.

[10] It is clear from the record and the arbitration award that the Commissioner did not deal with the postponement application.

[11] It is not disputed in the answering affidavit that an application for a postponement was made by the applicant and that such application was not recorded and further that the Commissioner did not give reasons for refusing the postponement.

[12] In paragraph 13 of the answering affidavit, the second respondent does not dispute the contention by the Applicant in the founding affidavit that an application for postponement was made. In paragraph 13 of the answering affidavit, the second respondent pleads that: “In the postponement the commissioner came to the correct conclusion”.

[13] What is clear from the record of the arbitration proceeding is that the applicant was unable to proceed with the case simply because its main witness was unable to attend the hearing. The main witness is no longer employed by the applicant and was in possession of the evidence that the applicant sought to rely on. The Commissioner then required the applicant’s representative to close his case as the applicant could not present a witness.

[14] My assessment of what transpired at the arbitration proceeding is that the application for postponement was prompted by the absence of the applicant’s witness.

[15] During the argument before me, I asked the representatives of the parties whether there was an application for postponement. The answer from the applicant’s representative was in the affirmative. The third respondent’s representative denied that there was such an application. The denial was premised on the fact that nowhere in the record is postponement discussed. I am mindful of the fact that both legal representatives were not in the arbitration hearing.

[16] It has been held by the courts that the pleadings are there to define the issues between the parties.[1] In motion proceedings such as review applications, affidavits serve as the pleadings.[2]

[17] As stated above, the applicant in the founding affidavit contends that an application for postponement was made. The second respondent does not deny this assertion. Having regard to what transpired at the arbitration and the second respondent’s concession in the answering affidavit that a postponement application was made, I am inclined to accept that an application for postponement was indeed made.

[18] It is clear from the record that the Commissioner did not apply his mind to the facts presented by the applicant at the arbitration hearing regarding the applicant’s predicament to proceed with the hearing. Moreover, it is not in dispute that an application for postponement was made. The Commissioner did not give any reasons for the refusal of the postponement and did not record the application for postponement.

[19] The general principles applicable to applications for postponements are trite law and need not be repeated here, save to state that considerations of prejudice will constitute the dominant factor in the evaluation of an application for postponement.[3] The Commissioner should weigh the prejudice which will be caused to the respondent if such an application for postponement is granted

against the prejudice which will be caused to the applicant if it is not. In assessing prejudice, the Commissioner should consider whether any prejudice caused by the postponement can fairly be compensated by an order of costs.

[20] In my view, and having regard to the circumstances of this case, the Commissioner committed a gross irregularity in the conduct of the arbitration proceedings. The Commissioner acted unprocedurally in refusing the applicant a postponement. The Commissioner further misconceived the nature of the enquiry, in that he failed to make an assessment of the balance of prejudice, which ought to have been the dominant factor in the evaluation of the application for postponement. The unavailability of the main witness is a proper basis for a postponement of an arbitration.[4]

[21] I do not agree with the second respondent’s contention that the applicant failed to apply for a postponement when an opportunity to do so was presented to the applicant by the Commissioner.[5] On the facts presented before the Commissioner, a postponement was warranted. Commissioners sitting as arbitrators are required to apply their minds to the matter before them and to consider the prejudice that would be suffered by either or both parties in the event the postponement is not granted.

[22] In the result, the following order is made:

Order

1. The third respondent’s award is reviewed and set aside.

2. The dispute arising from the second respondent’s dismissal is referred to the fourth respondent for a fresh hearing by a commissioner other than the third respondent.

3. There is no order as to costs.

F.I. Baloyi

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant:

Ms L Kungoane of Lancaster Kungoane Attorneys

For the Respondent:

Ms S Chetty of Serena Chetty Inc.

[1] Molusi and Others v Voges N. O. and Others [2016] ZACC 6; 2016 (3) SA 370 (CC) at para 28 where Nkabinde J observed that: “The purpose of pleadings is to define the issues for the other party and the Court. And it is for the Court to adjudicate upon the disputes and those disputes alone. Of course, there are instances where the court may, of its own accord (mero motu), raise a question of law that emerges fully from the evidence and is necessary for the decision of the case as long as its consideration on appeal involves no unfairness to the other party against whom it is directed.

[2] Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust and Others [2007] ZASCA 153; 2008 (2) SA 184 (SCA) at 200 D.

[3] Insurance & Banking Staff Association & others v SA Mutual Life Assurance Society (2000) 21 ILJ 386 (LC), [1999] ZALC 136 at para 44. These principles have been found to be applicable to CCMA arbitrations – see Fundi Projects & Distributors (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2006) 27 ILJ 1136 (LC) at para 10.

[4] Foschini Group(Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2002) 23 ILJ 1048 (LC); [2002] ZALC 137.

[5] Respondent’s heads of argument at para 30.