HOSPERSA and Another v Soza NO and Others (D477/11) [2013] ZALCD 19 (24 July 2013)

HOSPERSA and Another v Soza NO and Others (D477/11) [2013] ZALCD 19 (24 July 2013)

The court found that the CCMA commissioner failed to properly consider all relevant facts in refusing condonation for the late delivery of the rescission application. The commissioner did not adequately address the applicants' claim that the CCMA notice of arbitration was not timeously received, nor did he consider the impact of the CCMA's own rules regarding notice periods and office closures. The explanation for the delay, including the union official's personal circumstances and misunderstanding of service requirements, was not properly weighed. The commissioner also failed to assess the prospects of success in the rescission application, focusing instead on the applicants' alleged...

Citation
[2013] ZALCD 19
Parties
Applicant: HOSPERSA; Applicant: E. Job; Respondent: Chitane Soza N.O.; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: SANPARKS
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
24 July 2013
Case Number
D477/11
Procedural Posture
Review Application / Judgment on Review of Arbitration Ruling Refusing Condonation for Late Delivery of Rescission Application.
Outcome
Application for review granted; ruling refusing condonation set aside; late delivery condoned; matter referred to CCMA for rescission application to be heard by a different commissioner.
Judges
Haslop
Legal Topics
Condonation for Late Filing, Rescission of Arbitration Award, Unfair Dismissal, Ccma Rules, Wilful Default, Review of Arbitration Ruling
Labour Law Civil Procedure Condonation for Late Filing Rescission of Arbitration Award Unfair Dismissal Ccma Rules Wilful Default Review of Arbitration Ruling

Case Brief

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Parties

HOSPERSA

Applicant

E. Job

Applicant

Chitane Soza N.O.

Respondent

Commission for Conciliation Mediation and Arbitration

Respondent

SANPARKS

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Ruling Refusing Condonation for Late Delivery of Rescission Application.

Legal Issues

  1. 1 Whether the CCMA commissioner erred in refusing condonation for the late delivery of the rescission application.
  2. 2 Whether the applicants' failure to attend the arbitration constituted wilful default.
  3. 3 Whether the CCMA complied with its own rules regarding notice of arbitration.

Ratio Decidendi

The court found that the CCMA commissioner failed to properly consider all relevant facts in refusing condonation for the late delivery of the rescission application. The commissioner did not adequately address the applicants' claim that the CCMA notice of arbitration was not timeously received, nor did he consider the impact of the CCMA's own rules regarding notice periods and office closures. The explanation for the delay, including the union official's personal circumstances and misunderstanding of service requirements, was not properly weighed. The commissioner also failed to assess the prospects of success in the rescission application, focusing instead on the applicants' alleged...

Court Disposition

Application for review granted; ruling refusing condonation set aside; late delivery condoned; matter referred to CCMA for rescission application to be heard by a different commissioner.

Orders

  • The ruling of the first respondent dated 29 April 2011 refusing to condone the late delivery of the rescission application is reviewed and set aside.
  • The applicants' late delivery of the rescission application is condoned.