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VIC & DUP/JOHANNESBURG/LKS

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

DATE: 2 JUNE 1998 CASE NO. J617/98

In the matter between:

MANUEL PERREIRA DUARTE Applicant

and

CARRIM N.O. Respondent

J U D G M E N T

SUTHERLAND, AJ:

[1] In this matter the applicant Employer has sought relief on two grounds. The first is an application to review a decision of the first respondent, a commissioner of the CCMA in that it is alleged that the commissioner erroneously concluded that the second respondent (the employer) had been dismissed. The second ground relates to a review of the decision of the same commissioner in that he erroneously refused an application for the rescission of the award he had previously furnished. The grounds upon which the rescission relies relates to the allegation by the applicant Employer that he had not received notice of the arbitration proceedings.

[2] I deal with each of these grounds in turn.

One of the difficulties which presents itself in this matter is that the CCMA commissioner has not seen fit in response to Rule 7(7) of the Court to provide this court or the parties with anything more than the award which he handed down on 2 October 1997. There is no application to compel compliance with Rule 7(7). Therefore, whether or not the commissioner has committed a reviewable irregularity must be determined on what is to be gleaned from the arbitration award. Mr Gerber, who appeared for the applicant, was alive to this issue and addressed me on that basis.

[3] He contended that there were two grounds upon which he could rely to demonstrate a reviewable irregularity. The one ground related to the subject matter of the failure of the employer party to be in attendance at the arbitration. It seems to me to be questionable whether or not that ground may be relied upon by the applicant when he has taken a further step by seeking to procure a rescission of the award on the selfsame grounds.

Because of other considerations which I have taken into account, it is not necessary for me to give a definitive judgment in regard to the propriety of raising this issue in this context. I shall deal with the considerations relating to the absence of the employer from the arbitration when I deal with the challenge to the refusal of the rescission application. I shall confine my judgment concerning the reviewability of the award itself to the second ground, raised on behalf of the employer, namely that had the

commissioner applied his mind properly to the facts before him he could not have concluded that a dismissal had taken place.

[4] I am unable to agree with this contention. It is true that what is recorded in the award by the commissioner is in some respects cryptic and we have not been favoured even with a copy of the CCMA reference form; but I am not persuaded that on the most generous tests available it could be contended cogently that the commissioner committed an irregularity by concluding on the basis of what he was told, in the absence of any appearance on behalf of the employer party, that no dismissal had taken place. It may be appropriate to record the pertinent evidence as noted by the commissioner which underscores the propriety of this conclusion. This is what is noted:

"During May 1997 [the employee] heard a rumour that the business was up for sale. When he asked his employer, his employer denied it. On 11 June 1997 his employer walked into the shop and introduced new owners of the shop to him. This employer told him to work until the end of June 1997. The new owners then told him they did not need him and on 18 June 1997 he left the supermarket. On 18 June 1997 he contacted his employer and was told to go on leave and thereafter come back to work. On 30 June 1997 he phoned his employer and the employer told him to meet him at Right Value, one of the employer's businesses on the mine. On 5 July 1997 he met his employer. His employer paid him R6 000,00 for June 1997 and the employer said he will contact him on 8 July 1997 about employment in Westonaria in a supermarket. By 18 July he had received no response. On 29 July 1997 the employer received documents from the CCMA and contacted him at home. He said that he had offered him a job and they must settle the case without going to court. On 1 August 1997 he met the employer and told him what he wanted. His employer said he would settle it by 10 August 1997. On 8 August 1997 he went to see the employer. The employer made him wait for about five hours, thereafter told him that he had not spoken to his lawyers yet. On 12 August 1997 he heard nothing from the employer and therefore he contacted the CCMA again. He does not want to work for the employer again, he wants compensation. He does not know the reason for his dismissal. He has tried his best to settle this matter, the employer was not prepared to settle."

[5] So much for the commissioner's summing up of the material placed before him. His conclusion was as follows:

"I found the dismissal to be both substantively and procedurally unfair. I order that the employer pay the employee R48 000 being 8 months compensation calculated at the employee's rate of remuneration at the date of the dismissal."

6. The question to be posed is whether or not, based on what was before the commissioner, there is any reviewable irregularity in that conclusion. I am unable to find that there is any cogency in such a contention. It is unnecessary to labour the point that the Employer may well have had a first class defence. However, such a defence was not before the commissioner and therefore he cannot be in any way criticised or condemned for failing to take it into account. On the basis of what the commissioner was told, and in the absence of any gainsaying information or argument, I am not of the view that the conclusion can be reached that there is any basis to set aside that conclusion and that award. I shall deal with the tests in relation to reviewability in due course.

[7] When we turn to the rescission application we are in a somewhat better position. Apart from the written judgment in the rescission application there are also certain handwritten notes by the commissioner which record what took place at the hearing. At the hearing were present the representatives of the employer and of the employee. A great deal was said. The critical issues were twofold.

[8] First, there was the need to demonstrate a bona fide defence with some prospect of success. In my view, this was satisfied. The applicant's affidavit in the rescission application made out the following case:

1. It is said that the business was never sold and a new partner became involved on 11 June 1997. None of the employees (including this employee) were put at risk in regard to their employment.

2. The employer himself never terminated the employment of the employee. The employee was offered alternative employment at another business which he refused. Thereafter he accepted a month's salary and two weeks of leave pay. He decided to leave the employment.

[9] It seems evident that if that defence was put up and established, it attacks the very heart of the claim made out by the aggrieved employee that he was dismissed.

[10] The second critical issue required, was an explanation of the absence of the employer at the arbitration.

[11] It was stated that the employer party had received no notification of the proceedings.

[12] It is common cause that notification was sent by telefax and in the judgment given by the commissioner he says the following:

"Further in terms of section 213 of the Act 'serve' means to send by registered post, telegram, telex or deliver by hand. I have perused the file and I am still satisfied that the respondent was given proper service. The respondent in his evidence also said that it was possible that the notice of arbitration was faxed to him but he could have not received it because he receives many faxes. According to the file the notice was faxed to the respondent on 21 August 1997 at 15:51 at his fax number (011) 757-1225 and the transmission result report indicates that the fax was received."

[13] Mr Gerber, for the employer, contends that this is a fair reflection of what is recorded in the handwritten notes of the commissioner, upon which he was content to rely. What this boils down to is that a fax was ostensibly sent and the fax was on the employers' version ostensibly not received. Some play was made of the fact that during the hearing itself the fax transmission slip was not produced. There is no indication whether or not it was requested, but it seems to me to be besides the point. It is not suggested that there was no telefax sent, nor is it suggested that there was no telefax transmission slip in existence. If that was to be the case it would be to challenge the commissioner squarely on the facts. It is true of course that in the application to this court the point is made that the first respondent could not "produce any transmission report to prove that the notification of the arbitration hearing was served". But I do not see in the record of the hearing that there was any debate there about whether the remarks made by the commissioner to the effect that there was a transmission was in fact put in doubt. It is evident from the explanation tendered in the hearing that it was not so much a challenge to the transmission having been sent but to a challenge to the transmission having been received and all we have on record is the applicant saying that he did not get it.

[14] The conclusion which the commissioner reached on the basis of those facts was that no proper case had been

made out for rescission. That decision of the commissioner is now before me so that I may decide whether or not it is vitiated by any reviewable irregularity.

As to the test that the commissioner ought to have applied, reference to what the authors of Herbstein and Van Winsen, in The Civil Practice of the Supreme Court of South Africa 1997 4th ed at 540 say in regard to these matters, is appropriate:

"An applicant for the rescission of a default judgment must show good cause and prove that he had at no time renounced his defence and that he has a serious intention of proceeding with the case. In order to show good cause an applicant must show a reasonable explanation of his default, his application must be made bona fide and he must show that he has a bona fide defence to plaintiff's claim. Where the failure to deliver notice of intention to defend has been due to an oversight on the part of an attorney or to a misunderstanding in the registrar's office and the defendant has a bona fide defence to the action, the court will usually give leave to reopen but will not necessarily do so. On the other hand, the mere fact that the fault lies with the defendant personally is not a ground for refusing relief, though it is a factor which will weigh with the court in deciding whether or not to exercise its discretion in favour of the defendant."

[15] Although the commissioner has not expressly articulated that test, if it is used to assess whether or not he has applied his mind to the appropriate question, there does not seem to me to be any basis for concluding that he has not.

[16] In regard to the review jurisdiction of the court over a commissioner of the CCMA, I refer to the decision handed down by Pretorius AJ in the decision of Shoprite-Checkers (Pty) Ltd v The Commission for Conciliation, Medidation and Arbitration, a decision yet to be reported and which I have in transcript form as Case No. 852/97 which was handed down in February 1998. At the transcription page 14 the following remarks are apposite:

"Section 158(1)(g) of the Labour Relations Act allows for a review of the performance or purported performance of any function provided for in this Act or any act or omission of any person or body in terms of this Act on any grounds that are permissible in law. When a CCMA commissioner conducts an arbitration in terms of the Labour Relations Act he clearly performs a function provided for the Labour Relations Act. Such a decision is therefore reviewable on any ground permissible in law. Such a ground is to be found in section 33 of the Constitution. In terms of this section administrative action is required to be justifiable in relation to the reasons given for it where rights are affected or threatened.

It has been decided on more than one occasion in the High Court that the essence of justifiability is that the decision must be capable of objective substantiation. See Roman v Williams NO 1997 (9) BCLR 1267 (C) at 1276C and also Coetzee v Minister of Health and Another 1996 (3) BCLR 417 (T) at 425F-G. Applying this test an administrative decision will be reviewable where the conclusions reached by the administrative officer are not capable of reasonable justification when regard is had to the factual premises on which they are based. See also Chaskalson et al, Constitutional Law of South Africa, Juta's p.25, para 12, footnote 4." (my emphasis)

In my view that exposition of the review powers of this court is amongst the more generous and expansive. I rely on that test to decide whether or not I can find a reviewable irregularity in the decision to refuse a rescission by the commissioner.

[17] What did motivate the commissioner? It seems quite clear that he had before him a bona fide and viable defence. He had also before him an explanation for non-attendance of the proceedings. His conclusion was that the explanation for non-attendance was not satisfactory. He based that conclusion on the ground that there was documentary evidence available to him which indicated that a telefax had been served on the employers.

[18] The definition of "serve" in section 213 of the Labour Relations Act, means sent by registered post, telegram, telex, telefax or deliver by hand.

[19] The only resistance which the applicant has put up is to say that he did not get the telefax. If one was to conclude that the explanation was adequate in order to establish a basis for a rescission, it would completely undermine the efficacy of the section in the Act.

[20] It seems to me that when the section in the Act defines service as sending by telefax, then effect must be given to it.

[21] The commissioner was of the view that a telefax had been sent. If one is to go further and conclude that notwithstanding the sending of the telefax there was an explicable and non-blameworthy reason for the non-receipt of the telefax, then it seems to me that the applicant should have done much more than it did in this matter. If the transmission, (and to the extent that there is in documentary form an indication that the transmission took place) is to be challenged, it seems to me that it must be challenged on a proper footing. The applicant in this matter did no more than simply say "I didn't get it" and to suggest as a probability for not getting it that he gets many faxes and therefore there was no reason why he would not have got this one.

[22] That seems to me to be insufficient. More particularly one must bear in mind that I am not at liberty to substitute the view that I might have taken had I been sitting as a commissioner of the CCMA. I have to evaluate whether or not there is a reviewable irregularity in terms of the discretion which was vested in the commissioner himself. I am of the view that I cannot fault the commissioner's conclusion, having regard to the prima facie indication of a transmission having been sent, that proper service had been effected, that the applicant was properly in default, and that no satisfactory explanation had been tendered.

[23] The result of that conclusion is that I am of the view that there is not a proper basis for me to find that there was a reviewable irregularity in regard to the rescission application.

[24] The consequences of these considerations therefore lead me to the following conclusion: No case has been made out on either of the applications for review.

I make the following order:

1. The applications are dismissed.

2.As the respondent (employer) has not been legally represented in this case, I shall make no order as to costs.

DATED AT JOHANNESBURG ON THIS 15th DAY OF JUNE 1998.

_____________________________

ACTING JUDGE SUTHERLAND

LABOUR COURT OF SOUTH AFRICA

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