Pack n Stack v Khawula N.O and Others (DA05/15) [2016] ZALAC 31; (2016) 37 ILJ 2807 (LAC) (28 June 2016)

Pack n Stack v Khawula N.O and Others (DA05/15) [2016] ZALAC 31; (2016) 37 ILJ 2807 (LAC) (28 June 2016)

The Labour Appeal Court found that the commissioner failed to properly consider the bona fide explanation for the employer's absence and the presence of its witnesses, which indicated the defence was not abandoned. The employer was not in wilful default, as it had made arrangements for representation and attendance at the arbitration. The commissioner erred by not addressing the employer's defence and prospects of success in the rescission application. The Labour Court's reasons for dismissing the review were unconvincing, and the omission of critical issues in the commissioner's reasoning rendered the decision unreasonable. Accordingly, the rescission ruling was set aside and the...

Citation
[2016] ZALAC 31
Parties
Appellant: Pack n Stack; Respondent: Commissioner Khawula, N.O; Respondent: The Commission for Conciliation, Mediation and Arbitration; Respondent: Patrick Simphiwe Mdletshe & Another
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
28 June 2016
Case Number
DA05/15
Procedural Posture
Review Application / Appeal
Outcome
Appeal upheld; rescission ruling set aside; rescission application granted.
Judges
CJ Musi, Ndlovu, Sutherland
Legal Topics
Rescission of Award, Wilful Default, Representation at Arbitration, Good Cause Requirement, Unfair Dismissal
Labour Law Civil Procedure Rescission of Award Wilful Default Representation at Arbitration Good Cause Requirement Unfair Dismissal

Case Brief

Summary, issues, holding and outcome

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Parties

Pack n Stack

Appellant

Commissioner Khawula, N.O

Respondent

The Commission for Conciliation, Mediation and Arbitration

Respondent

Patrick Simphiwe Mdletshe & Another

Respondent

Procedural Posture

Review Application / Appeal

Legal Issues

  1. 1 Whether the commissioner erred in refusing the employer's rescission application.
  2. 2 Whether the employer was in wilful default when absent from the arbitration proceedings.
  3. 3 Whether the explanation for the employer's absence constituted good cause.

Ratio Decidendi

The Labour Appeal Court found that the commissioner failed to properly consider the bona fide explanation for the employer's absence and the presence of its witnesses, which indicated the defence was not abandoned. The employer was not in wilful default, as it had made arrangements for representation and attendance at the arbitration. The commissioner erred by not addressing the employer's defence and prospects of success in the rescission application. The Labour Court's reasons for dismissing the review were unconvincing, and the omission of critical issues in the commissioner's reasoning rendered the decision unreasonable. Accordingly, the rescission ruling was set aside and the...

Court Disposition

Appeal upheld; rescission ruling set aside; rescission application granted.

Orders

  • The appeal is upheld with no order as to costs.
  • The order of the court a quo is set aside and replaced with: (1) The rescission ruling issued by the first respondent, commissioner Khawula, under case number KNPS672 – 10 dated 25 April 2011 is set aside; (2) The rescission application is granted.