Larneys Metal Trading (Pty) Ltd v Diphoko and Others (JR583/23) [2024] ZALCJHB 220 (22 May 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR583/23

In the matter between:

LARNEYS METAL TRADING (PTY) LTD

Applicant

and

DIPHOKO S N. O

First Respondent

COMMISSION FOR CONCILIATION MEDIATION

AND ARBITRATION

Second Respondent

SABATA PD

Third Respondent

Heard: 14 May 2024

Delivered: 22 May 2024 (This judgment was handed down electronically by emailing a copy to the parties. 22 May 2024 is deemed to be the date of delivery of this judgment).

Summary: Default award issued after the applicant failed to attend a hearing it had been notified of via short messaging service, as well as telephonically on the day of the hearing. Rescission application refused on the basis that applicant failed to demonstrate that it was not in wilful default. Applicant seeks condonation for the late filing of the review in respect of the default award, the review of the default award and the review of the rescission ruling.

JUDGMENT

GANDIDZE, AJ

Introduction

[1] The applicant employer seeks, on an unopposed basis, an order (a) condoning the late filing of the review application in respect of the default award; (b) reviewing and setting aside the default award and remitting the matter for a fresh hearing, and in the event that the above orders are refused an order; (c) reviewing and setting aside the rescission ruling. The default award and the rescission ruling were issued against the applicant by the first respondent (the commissioner) on 21 December 2022, under the auspices of the second respondent (the CCMA) in case number FSBF5934-22.

[2] In terms of the default award, the commissioner found the dismissal of the third respondent, Mr Sabata (Sabata) to have been substantively unfair and ordered the applicant to pay him compensation in the amount of R23 815, equivalent to 5 months’

salary.

Background facts

[3] The default award was issued after the commissioner established during a call with Mr Larney (Larney), the managing director of the applicant, that he had received a short messaging system (SMS) notifying him of the con/arb proceedings set down for 12 December 2022 but had not received an e-mail with a copy of the notice of set down in pdf format. Larney informed the commissioner during the call that his experience was to always receive an e-mail as well, and in its absence, this is the reason he was not present at the hearing. The commissioner directed Larney to present himself at the CCMA within 10 minutes (the default award records that Larney was given 30 minutes to arrive), failing which the matter would proceed in his absence. Larney did not arrive as directed and the matter proceeded in his absence, resulting in the default award.

[4] A rescission application against the default award was dismissed.

[5] I intend to deal with the condonation and review of the default award first because if those applications succeed, that will be dispositive of the matter.

The default award

[6] The review in respect of the default award was filed late as the applicant awaited the outcome of the rescission application first. That approach has been found to be proper and prudent, and therefore l accept the explanation for the late filing to be reasonable and acceptable.

[7] Turning then to the merits of the review application itself, which is a consideration in deciding whether or not to grant condonation, the applicant takes issue with the commissioner’s finding that the applicant provided no explanation for being absent at the hearing whereas Larney had informed the commissioner of the reasons why he had not attended the hearing.

[8] This “review ground” is a misstatement of what the commissioner found in the default award.

[9] The commissioner starts by recording that it had been confirmed that the applicant was notified of the hearing. This is common cause given the SMS.

[10] The commissioner goes further to record that the applicant was given 30 minutes grace period to arrive. That grace period was granted is also not in dispute, the only contested issues being whether it was 10 or 30 minutes grace period and whether that grace period “was a logistical impossibility for me to arrange all my witnesses and travel to the CCMA proceedings”. The applicant states that the commissioner could have allowed him an hour or so to arrive with his witnesses but does not say that such a request was conveyed to the commissioner.

[11] The commissioner also records in the default award that he personally telephoned Larney and found that “there was no explanation as to why the Employer could not attend as the short message was sent to the correct number. I therefore exercised my discretion to proceed with the matter in default…” The finding is therefore that the applicant failed to give an acceptable explanation for its absence at the hearing. Stated differently, the commissioner rejected the explanation given. That finding takes into account an explanation put forward by the applicant and found wanting.

[12] A commissioner who is satisfied that a party was notified of a hearing and has not advanced cogent reasons for its absence will be acting within his or her powers if they decide to continue with the hearing in the absence of a party. The commissioner records this legal position in the default award that he exercised his discretion in terms of section 138(5) of the Labour Relations Act[1] (the LRA) and decided to continue with the hearing. Doing so is not misconduct or a gross irregularity as submitted by the applicant.

[13] A further relevant consideration in a condonation application is the applicant’s prospects of success should the review application be granted. The question is whether the applicant has pleaded facts which establishes that it has prospects of success in defending itself against Sabata’s dismissal claim.

[14] Sabata testified before the commissioner and related the incident that resulted in his dismissal. He was instructed by Larney to cut iron and in response, he informed Larney that for safety reasons, the iron needed to be laid flat by an excavator before he could cut it. According to Sabata, he explained to Larney that if the iron is on an unsafe surface, there could be dangerous material which would endanger him and that the safety boots would not be of assistance. Larney took Sabata’s response to be a refusal to carry out the instruction and charged Sabata for insubordination as well as an additional charge of idleness. Sabata testified that he was unable to comprehend the additional charge as he had continued to perform other tasks after the discussion with Larney.

[15] As there was no other version before him, the commissioner found that Sabata’s actions in not complying with the instruction to cut the iron until it was on a flat surface were justified. Sabata intended to carry out the instruction after his safety concerns had been addressed. The commissioner also accepted Sabata’s evidence that he had continued with other duties whilst waiting for the iron to be laid flat and had not been idle as alleged.

[16] In its founding affidavit, the applicant submitted that condonation for the late filing of the review application ought to be granted as it had prospects of success in defending itself against Sabata’s unfair dismissal claim. On what these prospects of success are, Larney averred that “based on my uncontested version in my rescission application, Mr Dipitse’s[2] dismissal was procedurally and substantively fair and that his [Sabata’s] version set out in the default arbitration award was false”. The rescission application sets out the prospects of success in the following terms:

‘4.2 The Applicant was dismissed for two charges, namely gross insubordination, and Gross insolence. The further charge was for loafing and idleness. A properly constituted disciplinary hearing by an independent chairperson took place. I attach hereto the chairperson’s recommendation marked annexure “B” hereto. The Respondent followed due process in dismissing the Applicant’.

4.3 I submit that this version of the Respondent constitutes reasonable prospects of success, and this is sufficient for purposes of rescission of the arbitration award.’

[17] The above explanation addresses procedural fairness only and not substantive fairness, whereas the default award found that Sabata’s dismissal was substantively unfair. The chairperson’s recommendation referred to, and attached to the rescission application makes no mention of what case was presented against Sabata in support of the charges against him at the disciplinary hearing, which warranted a recommendation that he be dismissed.

[18] Even before this court, the applicant has not set out what its case against Sabata would be if the default award were to be reviewed and set aside.

[19] This on its own is sufficient reason to refuse condonation for the late filing of the review application, which would be dispositive of the review application in its entirety. Above l found that the grounds put forward for a review of the default award are in any event without merit.

[20] I nevertheless proceed to consider the review application in respect of the rescission ruling in case my findings above in respect of the condonation application and the review of the default award are wrong.

Review of the rescission ruling

[21] It will be recalled that the arbitration proceedings were conducted and finalised in the absence of the applicant.

[22] Section 144(d) of the LRA provides for the rescission of an award issued in the absence of a party on good cause shown. In Mohube v Commission for Conciliation, Mediation and Arbitration and others[3] the court noted that there is no precise definition of the term “good cause” which is required to be demonstrated in a recission application but it is accepted that the applicant must show at least the following (a) an absence of wilfulness; (b) that it has a reasonable explanation for the default; (c) that the application for rescission is bona fide and not made with the intention to delay: and (d) that it has a bona fide claim against the other party/ies. The court also stated that “All these elements must be considered and weighed and, for example, proof of a bona fide claim may make up for a weaker explanation”.[4]

[23] The applicant seeks to have the rescission ruling reviewed on two grounds. First, it states that the explanation for the failure to attend the CCMA proceedings was bona fide and “certainly did not fall outside the boundaries of reasonableness”. Second, the applicant takes issue with the commissioner’s failure to apply the correct test in rescission matters by not

considering its prospects of success in defending itself against Sabata’s claim. According to the applicant, the commissioner

adopted a punitive approach as he was frustrated by Larney’s failure to attend the proceedings.

[24] The first ground of review requires a recap of the applicant’s case in the rescission application.

[25] The one explanation related to Larney’s belief that a notice of set down sent via e-mail in pdf format is always required for there to be proper notice of a hearing date. In the review papers it is conceded that this belief was mistaken, and therefore the rejection of that explanation by the commissioner was correct. Had the applicant sought legal advice on this issue at the time it received the SMS (and not at the review stage) or telephoned the CCMA to confirm the SMS (as found by the commissioner), it would have been advised that the SMS constitutes proper notice.

[26] The further explanation for not attending the hearing on 13 December 2022 is that the 10 minutes’ grace period granted by the commissioner was insufficient to arrange all the witnesses and travel to the CCMA. No request was made to the commissioner to stand the matter down to allow Larney to travel and arrive with his witnesses.

[27] In the rescission ruling the commissioner found that the applicant had been properly notified of the hearing date via SMS as per the CCMA rules and that Larney’s expectation to also receive an e-mail was unreasonable. The commissioner found that the applicant could have telephoned or e-mailed the CCMA to confirm the SMS. The conclusion was that the commissioner was not persuaded that the applicant was not in wilful default.

[28] In my view, the finding by the commissioner that the applicant failed to make out a case that it was not in wilful default was correct, reasonable and in fact the only conclusion which could be reached on the facts. The applicant was aware of the hearing date as communicated in the SMS. The telephone call by the commissioner was a courtesy. Whether the grace period given to arrive was 10 minutes or 30 minutes makes no difference to that outcome. The version that the time was insufficient to arrange witnesses could not be taken seriously in circumstances where the applicant did not request more time to arrive. There is no need to interfere with the commissioner’s finding on the ground raised by the applicant.

[29] The applicant’s other ground of review is that the commissioner failed to balance the explanation for the delay and the applicant’s prospects of success. In the rescission ruling the commissioner found that the applicant ought to have been present at the hearing to give its version as it had been made aware of the hearing date.

[30] Indeed, the commissioner was enjoined to consider the applicant’s prospects of success but an averment that the applicant has prospects of success with reference to the recommendation of the chairperson which does not set out the case against Sabata was of no assistance to the commissioner in assessing the applicant’s prospects of success. Stated differently, in the absence of facts dealing with applicant’s prospects of success on the fairness of Sabata’s dismissal, the commissioner cannot be criticised for failing to consider facts which were not placed before him. This is not a case of applying an incorrect test as submitted by the applicant.

[31] Accordingly, the rescission application was doomed to fail.

[32] The grounds for review have no merit, with the consequence that the review against the rescission ruling also fails.

[33] In the premise, I make the following order:

Order

1. Condonation for the late filing of the review in respect of the default award is dismissed.

2. The review application in respect of the default award is dismissed.

3. The review application in respect of the rescission ruling is dismissed.

T Gandidze

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant: Mr RJC Orton

Instructed by: Attorney with Snyman Attorneys

[1] Act 66 of 1995, as amended.

[2] Mr Sabata’s first name.

[3] [2023] 8 BLLR 733 (LAC); [2023] ZALCJHB 171 (LAC) at para 25.

[4] At para 25.