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REPUBLIC OF SOUTH AFRICA

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JR04/15

In the matter between:

MOBILE DATA SYSTEMS                                                                                           Applicant

and

METAL AND ENGINEERING                                                      

INDUSTRIES BARGAINING COUNCIL                                                          First Respondent

LAWRENCE NOWOSENETZ, N.O                                                            Second Respondent

UASA obo JEREMIAH MAKGATHO &                                     

ONE OTHER                                                                                                   Third Respondent

 

Heard: 6 July 2016

Delivered: 26 August 2016

JUDGMENT

SCHENSEMA, AJ

Introduction

[1] This is an application to review and set aside a rescission ruling made by the second respondent (hereinafter referred to as "the CCommissioner") on 17 November 2014 under case number METS 3322. In so issuing the ruling under review, the CCommissioner was acting under the auspices of the first respondent, the Metal and Engineering Industries Bargaining Council (hereinafter referred to as "the MEIBC").

[2] The application for review is brought in terms of s145 of the Labour Relations Act,[1] alternatively in terms of S158(1)(g) of the LRA. The review application was filed with this court on 8 January 2015. The application is opposed by the third respondent.

Factual background

[3] Given the basis on which the review is brought, it is not necessary to canvass all of the facts that are material to the dispute. It is sufficient to record for present purposes that Mr Collen Mohale Mokoena and Mr Jeremiah Makgato (hereinafter referred to as "the employees") were both in the employ of the applicant since 6 April 20013 and 4 January 2009 respectively. Both were dismissed for being under the influence of alcohol and this dismissal was challenged by the employees.

[4] Subsequent to their dismissal, the employees referred an unfair dismissal dispute to the MEIBC. The MEIBC scheduled the arbitration for 5 June 2014, during which proceedings the applicant was represented by Macintosh Cross & Farquharson attorneys, whilst the employees were represented by their union, the United Association of South Africa ("UASA"). At the commencement of the proceedings on 5 June 2014 an application for legal representation was made by the applicant, which application was denied. The arbitration did not proceed on 5 June 2014 and was once again set down on 18 July 2014.

[5] On 15 July 2014, contact via a letter was made by the applicant's attorneys of record to UASA for the purpose of settling the dispute. Mr Mashego on behalf of UASA responded on 16 July 2014 in which UASA confirmed the acceptance of the settlement proposal made in the letter of 15 July 2014, subject to the applicant providing the dismissed employees with their UI19 forms and provided a time limit in which these forms had to be submitted, failing which the settlement agreement would not be signed and the arbitration proceedings scheduled for 18 July 2014 would proceed.

[6] In response to the letter, the applicant's attorney of record complied with UASA's request and submitted the UI19 forms within the timeframe as stipulated by UASA. Subsequent to the letter, UASA responded with another letter on 16 July 2014 addressed to the applicant's attorneys of record in which a new settlement proposal was made. This letter was responded to on 24 July 2014 in which the applicant's attorney of record Mr Dixon referred to two telephone calls held between the parties on 18 and 21 July 2014 and informed UASA that the matter was settled and therefore finalised. Due to the settlement discussions, and the applicant's inability to attend the proceedings due to industrial action on 18 July 2014, the arbitration proceedings did not continue on 18 July 2014.

[7] Subsequently the arbitration was rescheduled for 26 August 2014 and it is this set down notice that the applicant disputes having received on 29 July 2014. On 26 August 2014, the arbitration proceeded in the absence of the applicant and the applicant subsequently submitted a rescission application in which it set out the reasons for its absence from the proceedings.

[8] In summary the reasons for the applicant's failure to attend the proceedings on 26 August 2014 was as result of not having received the set down notice from the MEIBC. The applicant submitted that during the period of 29 July 2014, the Silverton area was still experiencing industrial strike action which had impacted the applicant's business to such a degree that it was required to close the business during this period. Secondly the applicant's representative Mr Műller was attending to other business in Kroonstad and at no stage received the set down notice.

[9] The rescission application was not timeously filed and the applicant subsequently filed a condonation application upon receipt of a letter from UASA in which UASA informed the applicant that due to the lateness of the rescission application, condonation would be required. Both the rescission and condonation application were opposed by UASA and the reasons for the lateness have been disputed by UASA and have further not been accepted by the Commissioner. The Commissioner in his rescission ruling holds the view that the applicant has failed to provide an explanation for the delay and that the delay is unreasonable and furthermore that the condonation application ought to have been simultaneously filed with the rescission application. The Commissioner is further of the view that the applicant ought to have consulted with another attorney in light of Mr Dixon's non-availability.

[10] The Commissioner further held that no good cause had been shown for the applicant's failure to attend the proceedings and despite prospects of success, the Commissioner in his ruling holds the view that 'finality overrides the inequity'.

Analysis

[11] At issue in the proceedings under review is whether the applicant has laid any justifiable and valid basis for the setting aside of the rescission ruling.

[12] In my judgment, the Commissioner's rescission ruling does not fall within the realm of what is a reasonable decision under the circumstances. The Commissioner was dealing with a matter in which clearly there was a dispute of fact as to whether the matter was settled. Secondly the Commissioner holds the view that the applicant failed to provide any evidence that it had not received the set down notice for 26 August 2014 and thirdly that despite prospects of success being shown, the need for 'finality overrides the inequity'.

[13] I have considered various cases, in particular the matter of Ceramic Industries Ltd v CCMA NO,[2] in which the labour court considered the ambit of section 144 of the Labour Relations Act and held that where a party at all times intends to defend proceedings and its default is not wilful, then even though the party may formally have received notice of the proceedings, the granting of an award in that party's absence may constitute an error sufficient to justify the rescission application. Even though no satisfactory explanation is given for the party's default, other factors, such as the strength of the defaulting party's case, should be taken into consideration. Fairness and expedition should be balanced. Where there is conflict, fairness should be given precedence lest injustices are done.

[14] In respect of the receipt of the notice of set down via facsimile, there is a plethora of authority on this point and it seems that notwithstanding that there is a fax transmission slip which shows a successful transmission of the document to the correct fax number this is merely prima facie evidence and it is not conclusive evidence that the applicant received the fax.[3] Furthermore in the matter of Northern Province Local Government Association v CCMA and Others[4] the court held: "Axiomatically in deciding whether or not a fax transmission was received, proof that the fax was sent creates a probability in favour of receipt, but does not logically constitute conclusive evidence of such receipt."

[15] The test for good cause in an application for rescission normally involves the consideration of at least two factors. Firstly, the explanation for the default and secondly whether the applicant has a bona fide defence. It is trite that s144 of the LRA must be interpreted so as to also include good cause as a ground for the rescission of a default arbitration award. Accordingly, a commissioner may rescind an arbitration award under section 144 of the LRA where a party shows good cause for its default.

[16] Having regard to the facts of this matter, it is clear that there is a dispute of fact regarding whether the dismissal was fair and accordingly in my view, good cause has been shown as only the leading of evidence and cross-examination can determine the truth. I am further satisfied that the applicant did not at any stage renounce its defence. Its intention to proceed with the case is bona fide, it has a bona fide defence and the applicant has further shown in its application for rescission sufficient evidence of such defence.

Order

[17] In the premises, I make the following order:

17.1    the rescission ruling of the Commissioner is reviewed and set aside

17.2    the matter is remitted to the first respondent for a fresh hearing before a Commissioner other than the second respondent; and

17.3     there is no order as to costs.

________________________

Schensema, AJ

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant:                           Mr LW Dixon

Instructed by:                                 Macintosh Cross R Farquharson Attorneys

For the Third Respondents:           Mr G Manganyi

Instructed by:                                 UASA

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