Moksha Naidoo BA (Wits) LLB (UKZN) is an advocate at the Johannesburg Bar.

Bloem Water Board v Hash (unreported case no JA83/2016, 28-6-2017) (Landman JA (with Tlaletsi AJP and Phatshoane AJA concurring)) (LAC).

Under what circumstances can an employer launch an application to review and set aside a default award delivered under the auspices of either the Commission for Conciliation, Mediation and Arbitration (CCMA) or a bargaining council? This was one of the questions before the Labour Appeal Court (LAC).

The employee referred an unfair dismissal dispute to the fourth respondent bargaining council. On the day of the arbitration the representatives of both parties, including the dismissed employee attended, however, the arbitrator had not arrived at the scheduled time. After waiting 45 minutes and with no word from the council as to whether the arbitrator would be attending proceedings or not, the appellant’s representative left. The appellant’s Chief Executive Officer, on the same day wrote to the council complaining about the arbitrator’s tardy conduct and advised that the matter should not continue in the absence of the appellant’s representative.

Subsequent to the appellant’s representative leaving, the arbitrator arrived and began the arbitration process with only the employee and his representative in attendance. On being advised that the appellant’s representative had attended but later left, the arbitrator took the view that because the matter had been set down for a full day, the appellant’s representative had a duty to remain at the venue for the entire day. By leaving the premises, the arbitrator concluded the appellant abandoned its right to defend the employee’s claims against it. The arbitrator continued to hear the matter in default and delivered an award finding the employee’s dismissal both procedurally and substantively unfair and awarded him reinstatement.

The appellant filed an application to review and set aside the award accompanied by an application for condonation. The Labour Court (LC) refused condonation whereafter the appellant approached the LAC.

The first point raised by the employee was that the appellant’s review application was premature in that it should have first applied to the bargaining council to have the award rescinded in terms of s 144 of the Labour Relations Act 66 of 1995. Following this argument, the employee submitted that because it was open for the appellant to apply for rescission, proceedings before the bargaining council remained incomplete and a reviewing court should not readily intervene in incomplete proceedings.

While the LAC concurred with the view that the conventional approach is that a party should exhaust all internal remedies before approaching a court on review, this does not mean a reviewing court cannot intervene in incomplete proceedings at a tribunal or lower court. Where the interest of justice so demands, a reviewing court can, in exceptional circumstances intervene in medias res (in the middle of proceedings), as set out in Wahlhaus and Others v Additional Magistrate, Johannesburg and Another 1959 (3) SA 113 (A).

Even though the LAC held that a rescission application did, prima facie give the appellant a remedy to address the default award, this fact did not exclude the LC from dealing with an application to review and set aside the default award – more so, in circumstances where it would be difficult for the appellant to show ‘absence’ in a rescission application when in fact, its representative attended proceedings and left 45 minutes after the scheduled time.

The LAC found that it was both in the interest of justice and exceptional circumstances, on the facts, which permitted the LC to hear the review application.

The next issue before the LAC was the court a quo’s decision to refuse condonation.

The LAC noted that the appellant’s delay in bringing the review application delay was ‘slight’ and, therefore, the court a quo was obliged to consider the appellant’s prospects of success as set out in the condonation application. The LC’s failure to do so opened the door for the LAC to consider this issue.

The appellant, in its condonation application and with regard to ‘prospects of success’, bore the onus to demonstrate that the arbitrator’s decision to continue in its absence was irregular and that it had a prima facie defence to the employee’s claim. Beginning with the latter issue, the court found that on the record of the employee’s internal disciplinary proceeding as well as that of his appeal hearing, the appellant had a prima facie defence to the employee’s claim for unfair dismissal.

As to the arbitrator’s decision to continue in the absence of the appellant, the LAC held:

‘The arbitrator was confronted with the fact that the appellant’s representative had arrived for the arbitration and had waited for the arbitrator without any information as to whether the arbitrator would be arriving late or not at all. This situation required the arbitrator to exercise a discretion to stand the matter down and attempt to secure the return of those absent or to postpone the arbitration or to proceed with the arbitration. In considering the issue, the arbitrator should have been mindful that his failure to attend at the appointed hour (regardless of the reason for this) was the proximate cause of the appellant’s representative leaving when they did.

Instead, the arbitrator put the blame on the appellant. He investigated whether the appellant had abandoned the arbitration ie waived its rights and found that it had done so. The fact that the appellant attended the arbitration and waited for the arbitrator even though he had not arrived timeously and also had previously arrived late for an arbitration, does not signify that the appellant abandoned the arbitration.’

The LAC found that the arbitrator had committed a misconduct by continuing to hear the matter in the absence of the appellant and that this fact, together with the defence raised by the appellant against the claim for unfair dismissal, demonstrated the appellant had reasonable prospects of success in its condonation application.

The court a quo’s finding was set aside and replaced with an order that the late filing of the appellant’s review application be condoned and the default award set aside. The dispute was remitted to the bargaining council for a hearing de novo with no order as to costs.

This article was first published in De Rebus in 2017 (Sep) DR 48.