South African Airways Technical SOC Limited v SATAWU obo Mhlanga and Others (JR1505/2013) [2014] ZALCJHB 272 (17 July 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Reportable/Not Reportable

Case no: JR1505/2013

In the matter between:

SOUTH AFRICAN AIRWAYS TECHNICAL

SOC LIMITED Applicant

and

SATAWU obo MHLANGA AND MAZIBELA First Respondent

COMMISSIONER JOYCE MADUNA N.O. Second Respondent

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION Third Respondent

Heard: 1 July 2014

Delivered: 17 July 2014

Summary:

SHORT, A J

Summary

[1] This is an application to review and set aside a default award made by the Second Respondent in terms of section 145 of the Labour Relations Act No. 66 of 1995 (hereinafter referred to as “the LRA”) as well as a rescission ruling also made by the Second Respondent in terms of section 158(1)(g) of the LRA.

[2] There is further an application which has been launched by the First Respondent for the condonation of the late filing of the answering affidavit, which application is opposed.

Background

[3] The First Respondent, the South African Transport and Allied Workers Union (“SATAWU”) is acting on behalf of two of its members, namely Evelyn Irene Mazibela and Stevedore Steve Mhlanga (the individual members of the First Respondent will hereinafter be referred to as “the employees”).

[4] Mazibela was employed by the Applicant in 1983 and Mhlanga in 2009 and both of them are still in the employ of the Applicant.

[5] SATAWU entered into a collective agreement with the Applicant whereby all employees who had been in the development programme for two or more years were to be appointed into the positions they were trained in as from 16 August 2012. The existence of this collective agreement is not in dispute.

[6] SATAWU, acting on behalf of the employees, referred an unfair labour practice dispute to the Third Respondent as they claimed that they had not been promoted in accordance with the collective agreement. The matter came before the First Respondent on 3 May 2013 as a con-arb.

[7] Whilst both employees were present at the con-arb, the Applicant was conspicuous in its absence.

[8] The Second Respondent states in her award that she satisfied herself that the Applicant had received proper notification of the con-arb by mail on 18 April 2013.

[9] The Second Respondent further states in her award that the issue which she had to decide was whether the employees were overlooked for promotion or appointment into higher positions and if so, what the appropriate relief would be.

[10] The Second Respondent after hearing only the evidence of the employees ordered that the Applicant was to appoint both the employees to the positions they were developed in and had to adjust their salaries accordingly and afford them whatever benefits they were entitled to with effect from 16 August 2012.

[11] On 9 May 2012, the Applicant submitted an application for rescission to the Third Respondent.

[12] It is common cause that no notice of set down in respect of the rescission application was sent to the parties with the result that the Second Respondent decided the matter on the affidavits submitted by the parties. The founding affidavit of Mr Ntokozo Patrick Zama which was tendered in support of the Applicant’s application for rescission furnishes as the main reason for the rescission application, that the employees’ case was misplaced and misleading and that the Applicant sought the opportunity of making submissions to an arbitrating Commissioner to refute the averments made by the employees during the arbitration. Zama further states that the respondent (sic) will be further severely prejudiced by the erroneous default award since an opportunity to defend its

case is usurped by administrative defaults at the commission. (sic)

[13] The Second Respondent in her rescission ruling dismisses the application for rescission on the basis that she was satisfied that the Applicant was aware of the date of the arbitration as the CMO, Patrick, who was ostensibly in the employ of the Third Respondent called the Applicant on 23 April 2013 and spoke to a Mr/Ms Sibei who confirmed that the Applicant would be in attendance at the con-arb. The Second Respondent also relied on the fact that the employees communicated with Mr Mike Fatane of the Applicant on 24 April 2013 by email. The aforementioned email reads as follows:

‘Dear Mike

Can you please release David Maluleka and Shadrak Khosa to attend the case of Steve Mhlanga and Irene Mazibela at the CCMA on 3 May 2013.

Kind Regards,

Maemu Mhladhla’

[14] The Second Respondent dismissed the Applicant’s application for rescission and made no order as to costs.

Grounds of Review

[15] A number of grounds of review were raised by the Applicant in the founding and supplementary affidavits filed by it in the review application. These grounds of review are synthesised in the Applicant’s heads of argument and are as follows:

16.1 The Applicant alleges that the Second Respondent failed to comply with the provisions of Rule 31(9)(a), (b) and (c) of the CCMA Rules in that the Third Respondent did not notify the parties of the date, time and place of the hearing of the rescission application with the result that the “audi alteram partem” rule was ignored.

16.2 The Applicant further alleges that the Second Respondent exceeded her powers by assuming jurisdiction where she had none. The aforementioned is premised on the fact that the referral of an unfair labour practice dispute by the employees was outside the ninety day time limit without the employees’ having sought or been granted condonation for such late delivery. It was further alleged that the Second Respondent’s award was not one which a reasonable Commissioner could have arrived at.

16.3 The Applicant further alleges that a CCMA Commissioner may rescind a default award where there is a procedural error and in such a case the award would be erroneously sought and granted and therefore the merits would be irrelevant. According to the Applicant, the fact that it did not receive timeous notice of the set down of the con-arb proceedings as required by the CCMA Rules amounted to a procedural irregularity.

16.4 The Applicant also alleges that the CCMA may also rescind an award where good cause is shown by the party seeking rescission. The Applicant alleges that the absence of the Applicant at the con-arb proceedings on 3 May 2014 was not wilful and further that the Applicant had prospects of success in defending the employees unfair labour practice claim as the Applicant had not contravened the provisions of the collective agreement as Ms Mazibela was initially accommodated in the appearance section. She was then moved to the Human Resources section as a result of her illness and that her position in the Human Resources department was temporary

until such time as a position could be found for her which would accommodate her illness. It deserves mention that the requirement of good cause was not satisfied in the founding affidavit in the rescission application before the Second Applicant and it would

appear that the Applicant simply relied on the fact that the award was erroneously granted in its absence.

16.5 It was further alleged by the Applicant in respect of Mr S S Mhlangu that he was not required to be placed into the Management Information Publisher department as no such position was reflected on the collective agreement.

Condonation

[16] I am required to determine the application for condonation brought by the First Respondent as a result of the late delivery of its answering affidavit in the application for review.

[17] It is trite that when considering whether to grant condonation, a decision maker must establish whether “good cause” has been shown by the party seeking condonation. In Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA and Others,[1] the court referred to Melane v Santam Insurance Co Ltd[2] where it was held that the following factors need to be considered: (i) the degree of lateness; (ii) the explanation given for the lateness; (iii) the prospects of success; and (iv) the importance of the matter. In Mansoor v CCMA and Others,[3] Revelas J referred with approval to the dictum in National Union of Mine Workers and Others v Western Holdings Gold Mining[4] that ‘these facts are inter-related. They are not individually decisive. What is needed is an objective conspectus of all the facts.’

[18] It was submitted by Counsel for the First Respondent that the answering affidavit was delivered nine days late. This is in contrast with paragraph 41.2 of the answering affidavit of Steven Mhlanga wherein he alleges that the answering affidavit was almost two weeks late. Whether the answering affidavit was filed nine days or two weeks out of time is in my view neither here nor there, as neither of the aforementioned constitutes an unreasonable period of delay.

[19] It is alleged by Steven Mhlanga, in the answering affidavit, that the reason for the late delivery of the answering affidavit was as a result of an oversight by the legal department of SATAWU, as despite the matter being approved for allocation to attorneys on 9 September 2013, it was only allocated to attorneys on 19 September 2013. The legal department was, however, at that stage not aware that a supplementary affidavit had been delivered by the Applicant. The attorney appointed by SATAWU only became alive to the fact that a supplementary affidavit may have been filed when she received a courtesy letter from the Applicant’s attorneys enquiring as to when an answering affidavit would be forthcoming. A certain Ms Mitti then responded to the letter dated 2 October 2013, by stating that no supplementary affidavit had been received by the Third Respondent. It was only when Mitti received a copy of the supplementary affidavit from the Applicant’s attorneys in accordance with her request, that it was discovered that

the supplementary affidavit was in fact served on the offices of SATAWU on 17 September 2013.

[20] Mitti then made enquiries to establish why the supplementary affidavit as filed by the Applicant was not forwarded to her. It then transpired that the receptionist in the employ of SATAWU had received the affidavit, did not appreciate and understand its importance and simply filed it as she believed the “attorneys” were dealing with the matter. In my view, this amounts to a bona fide error, albeit that the receptionist was somewhat negligent in not bringing the presence of the supplementary affidavit to the knowledge

of the relevant persons.

[21] The First Respondent alleges that the matter is of extreme importance to it, in that it has the right to have disputes to which it is a party determined validly and fairly in accordance with the provisions of the LRA and the Constitution. No particularity is furnished supporting the broad sweeping allegation that the matter is important. I, however, accept that a dispute regarding the interpretation and application of a collective agreement to which SATAWU is a party would render such matter important to it.

[22] It is further alleged that no prejudice was caused to the Applicant by virtue of the late filing of the answering affidavit, which was eventually delivered on 15 October 2013. The Applicant has also not alleged any prejudice.

[23] I am persuaded on the facts before me that the period of the delay is minimal and that there is a plausible explanation therefore. Whilst in my view, the prospects of success in defending the review application are not that strong, I believe on a conspectus of all the factors which I have alluded to here above, condonation for the late delivery of the answering affidavit should be granted. The late delivery of the First Respondent’s answering affidavit is accordingly condoned.

Evaluation

[24] The main thrust of the argument presented by the Applicant’s attorney is the fact that the Second Respondent commenced with the arbitration proceedings when the Applicant had not received at least fourteen days notice of the date for con-arb. In Edgars Consolidated Stores (Pty) Ltd v Kalanda and Others,[5] it was held that the Commissioner must ensure that a party who has failed to attend proceedings has been properly notified of the date, time and venue of the proceedings before making any decision to proceed in the absence of that party or to adjourn the proceedings to a later date.

[25] Rule 17(1) of the CCMA Rules reads as follows:

‘(1) The Commission must give the parties at least fourteen days’ notice in writing that a matter has been scheduled for con-arb in terms of section 191(5A) of the Act.’

[26] When, however, a document or notice is sent by registered post by a party or the Commission, the provisions of Rule 8 are applicable which read as follows:

‘Any document or notice sent by registered post by a party or the Commission is presumed, until the contrary is proved to have been

received by the person to whom it was sent seven days after it was posted.’

[27] According to the Applicant, in terms of the provisions of Rule 8, it is deemed to have received the notice of set down on 23 April 2013. If one calculates the time periods in accordance with Rule 3 of the CCMA Rules, it would appear that the Applicant at best would only have received ten days’ notice of the con-arb proceedings, which were scheduled for 3 July 2013. There is nothing contained either in the arbitration award or the rescission ruling of the Second Respondent to indicate that she considered whether the Applicant received proper and timeous notification of the con-arb proceedings as contemplated in Rule 17(1). In the matter of Northern Province Local Government Association v Commissioner for Conciliation Mediation and Arbitration,[6] the court referred with approval to Mega Burger v Commissioner Louw N.O. and Another.[7] The Labour Court in considering an application to review in Mega Burger case, a similar refusal of a rescission of an award where notification sent by registered post was alleged by the employer not

to have been received, expressed the following:

‘The Commissioner was obliged to satisfy himself on 7 August that the notice of set down had been served on Mega Burger. The fact that it was sent by registered post goes some way to showing that there was, at least, an attempt at service. When informed that Mega Burger said that it had no notice of the set down, it was on the facts before him, reasonable for him to suppose that this was true. This is particularly so in light of the fact that Mega Burger had attended the conciliation proceedings. There was no evidence to the contrary before him that Mega Burger did not receive the notice of set down. The Commissioner ought to have postponed the arbitration proceedings mero moto. The Commissioner did not do this. His action was, in my view, unreasonable and unjustifiable and constitutes a gross irregularity.’[8]

[28] In my view, having regard to the flawed approach adopted by the Second Respondent, it appears that she did not properly satisfy herself either in the arbitration proceedings or in the subsequent rescission proceedings that a proper notification to the Applicant had taken place. There is further no evidence indicating that the Applicant received the notice of set down prior to the con-arb proceedings on 3 May 2013. Fatane at paragraph 36 of the founding affidavit states that the Applicant only received the notice of set down on 8 June 2013.

[29] It is not disputed that the Applicant did not employ an employee with the name of Sebei and therefore it is questionable whether the CMO Patrick, to which the Second Respondent refers in her rescission ruling, had in fact contacted the Applicant on 23 April 2013. In any event, it does not appear from the default award handed down by the Second Respondent that she was aware of this fact on 3 May 2013.

[30] With regard to the ground of review relating to the Second Respondent’s default award, appointing both employees to the positions they were developed in and adjusting their salaries and paying them whatever benefits they were entitled to, with effect from 16 August 2012, it appears that the collective agreement on which the employees claim of an unfair labour practice was premised, was not placed before the Second Respondent. From a reading of the award, it would further appear that no evidence was put before the Second Respondent by the employees as to what the precise terms of the collective agreement were. The Second Respondent’s disregard of the collective agreement in my view is grossly irregular and her finding in this regard was arrived at by conjecture. As a result such finding is irrational and unreasonable.

[31] This then brings me to the next issue and that is whether the Commissioner properly construed the true nature of the enquiry. It appears that the true nature of the enquiry was whether the employees were entitled to promotion or appointment in terms of the collective agreement concluded between the Applicant and SATAWU. The Second Respondent, in my view, misconstrued the nature of the enquiry. When she dealt with the dispute on the basis of an unfair Labour Practice without interpreting and applying the collective agreement. This axiomatically resulted in an unreasonable award. In Herholdt v Nedbank Limited (COSATU as amicus curiae),[9] the court held:

‘In summary the position regarding the review of CCMA awards is this: a review of a CCMA award is permissible if the defect in the

proceedings falls within one of the grounds in section 145(2)(a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by section 145(2)(a)(ii), the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside. They are only of any consequence if their effect is to render the outcome unreasonable.’

[32] In Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others,[10] the Labour Appeal court held:

‘The questions to ask are these: (i) n terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process that the arbitrator employed give the parties a full opportunity to have their say in respect of the dispute? (ii) Did the arbitrator identify the dispute he [or she] was required to arbitrate? (this may in certain cases only become clear after both parties have led their evidence) (iii) Did the arbitrator understand the nature of the dispute he or she was required to arbitrate? (iv) Did he or she deal with the substantial merits of the dispute? (v) Is the arbitrator’s decision one that another decision maker could reasonably have arrived at based on the evidence?

[21] Where the arbitrator fails to have regard to the material facts it is likely that he or she will fail to arrive at a reasonable decision. Where the arbitrator fails to follow proper process he or she may produce an unreasonable outcome (see Minister of Health and Another NO v New Clicks SA (Pty) Ltd and Others 2006 (2) SA 311 (CC)). But again this is considered on the totality of the evidence not on a fragmented piecemeal basis. As soon as it is done in a piecemeal fashion, the evaluation of the decision arrived at by the arbitrator assumes the form of an appeal. A fragmented analysis rather than a broad based evaluation of the totality of the evidence defeats review as a process. It follows that the argument that the failure to have regard to material facts may potentially result in a wrong decision has no place in review applications. Failure to have regard to material facts must actually defeat the constitutional imperative that the award must be rational and reasonable – there is no room for conjecture and guesswork.’

[33] I am of the view that, in light of what I have set out here above, the Second Respondent’s arbitration award and her subsequent rescission ruling are both irrational and unreasonable and are not findings which a reasonable Commissioner could make.

Order

[34] In regard to the question of costs of this application, I take the view that it would be inappropriate to make an order against the Third Respondent as there appears to be an existing relationship between the Applicant and the Third Respondent. Costs are not sought against any of the other Respondents.

[35] I make the following orders:

37.1 The award of the Second Respondent on 3 May 2013 is reviewed and set aside.

37.2 The decision of the Second Respondent on 12 June 2013 is reviewed and set aside.

37.3 The dispute concerning the application and interpretation of the collective agreement is referred back to the Third Respondent which shall assign a Commissioner other than the Second Respondent to hear the matter de novo.

37.4 There is no order as to costs.

_______________

Short, AJ

Acting Judge at the Labour Court of South Africa

Appearances:

For the Applicant: Kirsten Caddy (Cliffe Dekker Hofmeyr Inc)

For the First Respondent: Adv. F Darby

Instructed by:

Mitti Attorneys

[1] [1997] 11 BLLR 1475 (LC) at 1480D-F.

[2] 1962 (4) SA 531 (A).

[3] [2000] 1 BLLR 79 (LC) at para 23.

[4] (1994) 15 ILJ 610 (LAC) at 613B-E.

[5] [2007] 7 BLLR 632 (LC) at para 12.

[6] (J3747/00) [ 2001] ZALC 15 (1 February 2001) at para 35.

[7] [2000] 21 ILJ 1375 LC.

[8] Ibid at 1377H-J

[9] [2013] 34 ILJ 2795 (SCA) at para 25.

[10] (2014) 35 ILJ 943 (LAC) paras 20 and 21.