Lesiba v National Bargaining Council for the Road Freight Industry (NBCFRI) and Others (JR1190/2008) [2010] ZALCJHB 30 (21 December 2010)
The applicant failed to provide a credible and consistent explanation for his absence at the conciliation meeting, offering conflicting reasons. The commissioner considered all representations and evidence, including proof that notice was sent to the applicant’s legal advisor. The applicant did not address prospects...
Source-derived case information.
- Citation
- [2010] ZALCJHB 30
- Parties
- Applicant: Pale Eric Lesiba; Respondent: National Bargaining Council for the Road Freight Industry (NBCRFI); Respondent: Commissioner D.M. Africa N.O.; Respondent: Staff Initiative (Pty) Ltd
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JR1190/2008
- Procedural Posture
- Review Application / Judgment
- Outcome
- Application dismissed.
- Judges
- Coetzee
- Legal Topics
- Rescission of Award, Failure to Attend Conciliation, Review of Arbitration Ruling
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pale Eric Lesiba
Applicant
National Bargaining Council for the Road Freight Industry (NBCRFI)
Respondent
Commissioner D.M. Africa N.O.
Respondent
Staff Initiative (Pty) Ltd
Respondent
Procedural Posture
Review Application / Judgment
Legal Issues
- 1 Whether the applicant provided a valid reason for failing to attend the conciliation meeting.
- 2 Whether the commissioner’s ruling dismissing the rescission application was reviewable.
- 3 Whether the applicant established prospects of success in the underlying dispute.
Ratio Decidendi
The applicant failed to provide a credible and consistent explanation for his absence at the conciliation meeting, offering conflicting reasons. The commissioner considered all representations and evidence, including proof that notice was sent to the applicant’s legal advisor. The applicant did not address prospects of success in his application. The ruling dismissing the rescission application was reasonable and not one that a reasonable commissioner could not have made. No specific or recognised ground for review was formulated by the applicant. The application for review is dismissed.
Court Disposition
Application dismissed.
Orders
- The application is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
49 paragraphs
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN
CASE NO JR 1190/2008
In the matter between:
PALE ERIC LESIBA
Applicant
and
NATIONAL BARGAINING COUNCIL
FOR THE ROAD FREIGHT INDUSTRY (NBCRFI) First Respondent
COMMISSIONER D.M. AFRICA N.O.
Second Respondent
STAFF INITIATIVE (PTY) LTD
Third Respondent
JUDGMENT
COETZEE AJ:
Introduction
1. The Applicant seeks to review and set aside a ruling dismissing his application to rescind a dismissal of his case before the Bargaining Council for failure to attend the Conciliation proceedings.
Background
2. The Applicant failed to attend the conciliation.
3. The Commissioner dismissed the matter.
4. The Applicant filed an application to rescind the dismissal ruling.
Analysis of the facts
5. Applicant in a short affidavit explained that he did not attend the conciliation meeting as he was not notified of the date.
6. He also contended that his Legal Advisor was not informed of the conciliation meeting.
7. The Employer on an affidavit submitted proof that the matter was properly set down and that the notice of set down had been faxed to Applicant’s Legal Advisors.
8. The Employer, in addition, submitted (hearsay evidence) that the Case Management Officer at the Bargaining Council had received a telephone call from the Applicant’s Legal Advisors informing her that the Applicant was critically ill in hospital, and explanation different from the one tendered in the affidavit.
9. The Applicant did not deal with the prospects of success in his Application while the Employer contended that a fair disciplinary hearing resulted in the dismissal of Applicant.
Analysis
10. Applicant’s founding affidavit in the Review Application does not specify a specific ground for the review of the ruling.
11. Applicant however in his supplementary founding affidavit seeks to set out further grounds of review. Again, no specific recognised ground of review is formulated.
12. The Second Respondent clearly considered the representations and evidence before him.
13. Second Respondent held:
13.1. That proof was submitted that the notification had been sent to Applicant’s Legal Advisor and that Applicant had tendered two conflicting explanations for not attending the conciliation meeting.
13.2. That Applicant had not been truthful about the reason for not attending the Conciliation meeting.
14. Second Respondent’s ruling is not one that a reasonable Commissioner could not have made.
Order
15. The application is dismissed.
16. There is no order as to costs.
____________________________
COETZEE AJ
ACTING JUDGE OF THE LABOUR COURT
DATE OF HEARING:
21 DECEMBER 2010
DATE OF JUDGMENT:
21 December 2010
APPEARANCES:
FOR APPLICANT:
In Person
FOR THE RESPONDENTS: No appearance