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Masoga v Cellier and Others (JR2185/04) [2006] ZALC 89; (2007) 28 ILJ 155 (LC) (9 October 2006)

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2. The review application was opposed by the third respondent. The third respondent had raised a point in limine that the applicant’s review application was filed late and was not accompanied with an application for condonation. The applicant contended that he had received the rescission ruling on 27 August 2005 and that the application was filed within the requisite six week period. Since there is nothing before me to second guess the applicant’s version, there is no need for the applicant to apply for condonation.

The background facts

3. The applicant was employed by the third respondent as its treasurer. He was dismissed and referred a dispute to the CCMA for conciliation and arbitration. The matter was set down for arbitration on 28 April 2004. The applicant failed to attend the hearing because he became ill on the day with an eye problem and could not travel from Pretoria to Johannesburg to attend the hearing. His referral was dismissed as a result of his failure to attend the hearing.

4. On 2 June 2005 the applicant applied to have the dismissal award rescinded. He stated that he was terminally ill and could not travel from Pretoria to Johannesburg to attend the arbitration hearing. He contacted one Dan Khumalo and requested him to contact employees of the CCMA about his illness. Khumalo did so but none of the employees answered their telephones. He attached a doctor’s letter from the Kalafong Eye Clinic which confirmed that he had been treated on 22 April 2004 and that he would be fit to resume duties on 30 April 2004. He also dealt with the merits of his dismissal in his application.

5. The commissioner in his ruling dated 25 June 2004 dismissed the rescission application on the basis that it is defective in that it was not accompanied with an application for condonation.

6. The applicant has raised several grounds of review. I deem it appropriate to only deal with the following grounds of review:

6.1 The commissioner acted unreasonably in dismissing his rescission application on the basis of the absence of an application for condonation;

6.2 The commissioner failed to apply his mind correctly on the administrative duty of the CCMA to inform the applicant about what information or documents (in this case condonation application) are outstanding before a decision could be reached especially after he had failed or submitted a condonation application. The commissioner should have consulted with Case Management team on the realisation that the referral was defective so that corrective action could be taken without prejudicing a party to the proceedings before the Commission.

Analysis of the evidence and arguments raised

7. It is common cause that the applicant was notified by the CCMA that his matter had been enrolled for arbitration on 28 April 2004. He failed to attend the hearing and a commissioner issued a dismissal award. The referral was dismissed in terms of section 138(5)(a) of the Labour Relations Act 66 of 1995 (the Act). It is unclear when the dismissal award was served on the applicant or whether it was served at all. The applicant then filed with the CCMA an application for rescission on 2 June 2004.

8. On 25 June 2004 the commissioner issued the following ruling:

“An arbitration was scheduled for 28 April 2004 regarding an alleged unfair dismissal. The applicant did not attend and the matter was dismissed in terms of S138(5)(a) of the Labour Relations Act 66 of 1995 (“the LRA”). The applicant has subsequently applied for a rescission in terms of S144 of the LRA.

The respondent did not oppose the application, which was served on him by registered mail posted on 1 June 2004. The application was filed with the CCMA on 2 June 2004.

The applicant states in his application that he was aware of the set down and by not attending he acknowledges awareness that he would have to apply for a rescission (of the dismissal award). The application was thus filed 3 weeks late. The applicant has not applied for condonation of the late application.

This application is defective and for this reason is dismissed.”

9. In terms of rule 32 of the CCMA Rules an application for rescission of an arbitration award must be made within fourteen days of the date on which the applicant became aware of the arbitration award. An arbitration award which includes a dismissal award must be served on the parties in terms of section 138(7)(b) of the Act. There is no indication whether the dismissal award was served on the applicant and if so when it was served. As stated above the applicant’s rescission application was filed with the CCMA on 2 June 2004. The applicant has stated that he knew that his matter would be dismissed due to non attendance. However no facts were placed before the commissioner that showed first that the dismissal award was served on the applicant and if so when it was served.

10. The practice that has developed at the CCMA over the years is to inform a party that his or her application or referral is late and that the party concerned should apply for condonation. The commissioner has deviated from this practice and no reasons were given why he failed to do so. The applicant should have been afforded an opportunity to have been heard before the commissioner found that his application was defective. By failing to provide the applicant an opportunity to have been heard, the commissioner committed a gross irregularity which vitiates his ruling. There might also not have been a need for the applicant to have applied for condonation since it is unclear whether the dismissal award was served on him and if so when.

11. The application stands to be granted. The CCMA must consider whether there was a need for the applicant to have applied for condonation and if so afford him an opportunity to do so.

12. The applicant had sought an order that this Court condone the late filing of his rescission application with the CCMA. This Court cannot grant the order that the applicant is seeking since it is for the CCMA to determine such an application.

13. I do not believe that this is a matter that warrants a cost order.

14. In the circumstances I make the following order:

14.1 The rescission ruling dated 25 June 2004 under case number GA6808-04 made by the first respondent is reviewed and set aside.

14.2 The dispute is referred to the second respondent for consideration before another commissioner other than the first respondent. The applicant should be afforded an opportunity to apply for condonation in terms of the CCMA rules. The third respondent should it deem it necessary be allowed an opportunity to oppose the application.

14.3 There is no order as to costs.

FRANCIS J

JUDGE OF THE LABOUR COURT OF SOUTH AFRICA

FOR THE APPLICANT : IN PERSON

FOR THE THIRD RESPONDENT : UNKNOWN ATTORNEY

DATE OF HEARING : 29 SEPTEMBER 2006

DATE OF JUDGMENT : 9 OCTOBER 2006