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IN THE LABOUR COURT OF SOUTH AFRICA

Before Landman J Case Number: C85/98

In the matter between:

KEEROM CASA HOTEL Applicant

and

M C HEINRICHS Respondent

PRESIDING JUDGE:

Landman J

ON BEHALF OF APPLICANT:

C H Cubitt of W N Reyneke Inc.

ON BEHALF OF RESPONDENT:

No appearance

DATE OF PROCEEDINGS:

25 June 1998

PLACE OF PROCEEDINGS:

Cape Town

JUDGMENT

1. The Keerom Casa Hotel (the Hotel) applies in terms of s 145 of the Labour Relations Act 66 of 1995 for the condonation of the late filing of an application for the review and setting aside of an award issued by the second respondent, a commissioner of the CCMA, concerning the dismissal of MC Heinrichs, the first respondent (the employee), who was previously employed by the applicant. The first respondent filed an affidavit but did not appear at the hearing of this matter.

2. The delay has been adequately explained and condonation of the late filing is warranted.

3. One of the grounds upon which the Hotel relies in support of its application is that the commissioner’s refusal to grant a postponement to call further witnesses amounted to a gross irregularity. I need confine myself only to this issue. The facts relevant to this issue can be summed up as follows:

(a) The employee referred a dispute to the CCMA. She alleged that the Hotel dismissed her on Sunday 31 August 1997. She further alleged that her dismissal was for reasons related to redundancy.

(b) The CCMA convened conciliation proceedings. The employee did not attend. The CCMA notes that she received her notice after the date set for the conciliation hearing. The employee states in her affidavit that she received the notice 14 days late.

(c) The CCMA issued a certificate that the dispute remained unresolved.

(d) The CCMA, with or without a request (there is no mention of a request for arbitration in the record), set the matter down for arbitration on 25 November 1997. The arbitration was rescheduled until 22 January 1998.

(e) On 22 January Mr Cubitt, the Hotel’s attorney, appeared and objected to the fact that no conciliation had taken place. The commissioner then attempted to conciliate the matter that day between 11:00 and about 11:45. The attempt was unsuccessful.

(f) At 13:00 the commissioner commenced the arbitration. The employee gave evidence. She had stated in the referral to the CCMA that she was dismissed on Sunday 31 August but now she said it was on Saturday 30 August. She also stated at one stage that she did not know why she had been dismissed.

(g) The Hotel’s case was that it did not know how to prepare for the arbitration as there had been no attempt at conciliation. It did not know what her case was. The Hotel’s case was that the employee had resigned in a huff and had not been dismissed.

(h) The Hotel led the evidence of Mrs Friedman.

(i) Mr Cubitt tried, during the lunch break, to have his witnesses travel to the venue and assured the commissioner that they would arrive. They had not arrived by the end of the day ie about 16:00.

(j) An application was made for an adjournment to call further witnesses. The witnesses were said to be material. It was explained that there had been no conciliation and until that had taken place the Hotel did not know what case it had to meet. The commissioner was not available the next day. A postponement was refused.

(k) The commissioner proceeded with the arbitration and delivered his award on 6 February 1998.

4. The commissioner refused the postponement. In so doing he stated that the CCMA would only grant a postponement in exceptional circumstances. I assume that he decided, on this test, that the circumstances of the case before him were unexceptional. I do not think that this is the proper test. In saying so I am acutely conscious of the need for the CCMA to avoid willy nilly postponements which blighted the previous system. However the true test is whether justice and fairness requires a postponement. The commissioner was obliged to ask whether a postponement would prejudice the CCMA or the employee and, if so, whether this could be alleviated in some appropriate manner. In the case of an alleged unfair dismissal it could be accommodated to an extent as the compensation which might be awarded would increase proportionately in the case of a procedural defect. The delay in this case would probably have been minimal.

5. The commissioner did not ask himself the proper question. His failure to do so was a misdirection. In addition the fact that the he was not available the next day was of no significance and should not have taxed him.

6. In declining the application for postponement on the grounds that the Hotel did not know what the employee’s case was the commissioner remarked:

“Mrs Heinrich’s testimony in the arbitration hearing was basically what she had disclosed in plenary in the conciliation hearing. Mr Cubitt was therefore fully aware of what the issues will be before the arbitration hearing started.”

7. It is difficult to appreciate the logic of this. The conciliation concluded at 11:45. The arbitration commenced at 13:00. There was limited time to summons witnesses now that the employee had, disclosed partially, the basis of her case. Mr Cubitt and the Hotel cannot be faulted if at that late stage is was not possible for the witnesses to arrive before 16:00. The failure to appreciate this led the commissioner to refuse the postponement. This constitutes a gross irregularity and it has potentially led to a failure of the commissioner to comply with the rules of audi alteram partem.

8. The matter could possibly be rectified by re-opening the arbitration. However the commissioner has made a finding. It would be difficult for him to disabuse his mind of this. In any event there has been a deterioration in the relationship between Mr Cubitt and the commissioner. The best that can be done is to set aside the award and order that the matter be re-arbitrated before a commissioner other than the second respondent.

9. Mr Cubitt did not seek costs against the employee. He sought costs against the commissioner. The commissioner erred and misdirected himself but he was not malicious. He has not opposed the application. His affidavit has been of assistance and does not detract from his statement that he abides by the decision of the court. There is no justification for a cost order against him.

10. In the premises it is ordered:

1. That the late application be condoned.

2. The award of the second respondent dated 6 February 1998 is hereby reviewed and set aside.

3. The matter is remitted to the Commission for Conciliation, Mediation and Arbitration for arbitration before a commissioner other than the second respondent.

4. No order is made as to costs.

SIGNED AND DATED AT JOHANNESBURG ON THIS 1ST DAY OF JULY 1998

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A A Landman

Judge of the Labour Court

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