Sedtrade (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR575/19) [2021] ZALCJHB 399 (27 October 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 575/19

In the matter between:

SEDTRADE (PTY) LTD Applicant

And

THE COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION First

Respondent

COMMISSIONER SELLO MOPHAKI N.O. Second

Respondent

COMMISSIONER MICHAEL HOWITZ N.O. Third

Respondent

SUDESH MANILALL Fourth

Respondent

SHERIFF OF THE MAGISTRATES COURT Fifth

Respondent

Heard: 7 July 2021

Delivered: 27 October 2021(In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be 27 October 2021.)

JUDGMENT

MANCHU, AJ

Introduction

1. The applicant brought an application to review and set aside a rescission ruling made by the second respondent, dated 13 March 2019, and to rescind a default award made by the third respondent, dated 3 December 2018.

2. In short, the applicant argues that it was not in mala fide or deliberate default of the arbitration hearing set down on 3 December 2018, and that it defaulted because the first respondent (“the CCMA”) failed to notify it that the arbitration hearing had been set down.

3. In opposing the review application, the fourth respondent argues that the applicant failed to substantiate its default and that, even if its explanation is considered satisfactory, the applicant failed to address the merits of its referral or to show that it has prospects of success before the CCMA, and as such the applicant has failed to establish good cause as required in rescission applications.

Chronology of Events

4. The fourth respondent was previously employed by the applicant as an Estimator.

5. On 22 October 2018, the fourth respondent was served with a notice of termination, dismissing her from employment with the applicant.

6. The fourth respondent referred her dismissal to the CCMA on 26 October 2018. After the matter conciliated without a resolution it was set down for arbitration on 3 December 2018 before the third respondent.

7. After the applicant failed to appear, the third respondent granted a default award in favour of the fourth respondent.

8. The applicant disputes that it received a set down for the arbitration and states that it failed to attend because it was not aware that the matter had been set down.

9. On 9 January 2019, the applicant was served with an application to certify the CCMA award and to have a writ of execution issued. The applicant brought an application to rescind the default award and the matter came before the second respondent.

10. The second respondent dismissed the rescission application on the basis that the applicant had failed to provide a plausible explanation for its absence and, as such, failed to show good cause.

Review Application

11. In his award, the second respondent found that the applicant was not, on a balance of probabilities, veracious when it claimed to have been unaware of the arbitration that took place on 3 December 2018

12. Therefore, the second respondent found that the applicant was not veracious, not because of other existing evidence or facts that rebutted or disproved the applicant’s allegation that it did not receive a notice from the CCMA, but simply because the applicant failed to file a confirmatory affidavit.

13. In seeking to review the second respondent’s award, the applicant inter alia argues that the second respondent committed a gross irregularity in that:

13.1. The second respondent failed to determine whether a notice was in fact properly served on the applicant, instead of simply relying on the statements in the default award.

13.2. The second respondent should have noticed, and found, that the fourth respondent’s opposing affidavit to the rescission application was filed late, with no application for condonation.

13.3. In dealing with the rescission ruling, the second respondent on referral to the application for rescission completely ignores submissions made regarding the fact that notice was not received and simply relied on the lack of a confirmatory affidavit that he alleges should have been attached.

14. Section 144 of the Labour Relations Act, headed “Variation and rescission of arbitration awards and rulings”, provides that:

“Any commissioner who has issued an arbitration award or ruling, or any other commissioner appointed by the director for that purpose, may on that commissioner’s own accord or, on the application of any affected party, vary or rescind an arbitration

award or ruling:

(a) Erroneously sought or erroneously made in the absence of any party affected by the award;

(b) …

(c) …

(d) Made in the absence of any party, on good cause shown.”

15. Where a Commissioner makes a finding that an award was erroneously sought or made within the meaning of section 144 (a) of the LRA, the enquiry ends at that point, and rescission ought to be granted without the need to consider whether good cause under section 144 (d) was shown.[1]

16. Where however it has not been established that the award was erroneously sought or granted, the enquiry then moves to other considerations

under good cause as called upon by the provisions of section 144 (d) of the LRA. In this regard, the Commissioner is obliged to consider whether a reasonable and bona fide explanation for the default was proffered, whether the applicant has demonstrated a prima facie defence to the claim; whether it was demonstrated by the applicant that at no stage was its defence renounced, whether there was a serious intention to proceed with the case, whether the dictated to avoid any injustice being done.[2]

17. Mr Dollie on behalf of the applicant, referred me to the judgment of George and Mossie’s Supermarket (Pty) Ltd t/a Pick and Pay Brightwater Common v Commissioner for Conciliation, Mediation and

Arbitration and others (JR1964/2016) [2018] ZALCJHB 249 (“George Mossie”). I agree this judgment provides a useful precedent for considering this matter.

18. At paragraph 18, the court in George Mossie held that an arbitration award like an order of court is erroneously granted if at the time of granting it, there existed facts which the Commissioner had not been aware of, and which had the Commissioner been aware of, would not have granted it, and that an arbitration award will also be erroneously granted if it is shown that there was an irregularity in the proceedings, or that the Commissioner did not have the competency to grant it.

19. In this matter, there existed facts which had the second respondent been made aware of, the second respondent would not have granted the default award. In this regard, from the email, dated 30 November 2018 and headed “CMS-CCMA Reminder: Case GAVL5349-18 (GAVL), it appears that the applicant was not notified of the arbitration scheduled for Monday, 3 December 2018 This email evidences that the notice was only sent to the fourth respondent and not the applicant.

20. The applicant cannot be said to have been in default if he was not notified of the date of hearing.

21. It does not appear that the second respondent paid any regard to this email, or that he was made aware of it. In my view, before, interrogating the veracity of the applicant’s claim that it did not receive the notice of set down, and labelling it untrue, the second respondent needed to be satisfied that the applicant had in fact been advised that the matter was set down to be heard.

22. Furthermore, without proof of the existence of the email containing a set down, the applicant could not be expected to show that it did not receive such non-existent email.

23. Where a Commissioner makes a finding that an award was erroneously sought or made within the meaning of section 144 (a) of the LRA, the enquiry ends at that point, and rescission ought to be granted without the need to consider whether good cause under section 144 (d) was shown.[3] Therefore, given that I have found that the second respondent erroneously gave the award, I do not need to consider any further arguments made under the issue of good cause.

24. On conspectus of all the facts and evidence in this matter, it appears that the second respondent committed a gross irregularity and that his decision is not one that passes the threshold of being a decision by a reasonable decision maker. The rescission ruling therefore falls to be set aside.

25. Furthermore, on the basis of what is set out above, the third respondent’s default award should also be set aside.

26. In the premises, the following order is made:

Order

1. The rescission ruling handed down by the second respondent, under case number GAVL 5349-18 is reviewed and set aside.

2. The default award handed down by the third respondent, under case number GAVL 5349-18 is reviewed and set aside.

3. The matter is referred back to the first respondent for a hearing de novo before a Commissioner other than the second and third respondents.

4. There is no order as to costs.

T Manchu

Acting Judge of the Labour Court of South Africa

[1] F & J Electrical CC v MEWUSA obo E Mashatola and Other 2015 (4) BCLR 377 (CC); (2015) 36 ILJ 1189 (CC); [2015] 5 BLLR 453 (CC) at para 27. See also George Mossie, below, at par 19.

[2] Satinsky 128 (Pty) Ltd t/a Just Group Africa v DRC and Others Case no: JR 1479 / 2012 [2013] ZALCJHB 38 (26 February 2013), at para 23.

[3] Goerge Mossie supra at para 20.