Pioneer Foods (Pty) Ltd t/a Sasko Milling & Bakery (Duens Bakery) v CCMA & others (LC Case no C 265/10, Date of judgment: 11 March 2011)

Principle:

A CCMA Commissioner does not act outside of his powers by proceeding with the arbitration immediately after certifying that the dispute remains unresolved. But he retains a discretion to adjourn or postpone the proceedings after that.

Facts:

This case asks this question: Does the commissioner in con-arb proceedings in terms of s 191(5A) of the Labour Relations Act have a discretion whether to adjourn the proceedings after conciliation and before the arbitration stage, if neither party has objected to con-arb?

The employee was dismissed for misconduct in that it was found that he had assaulted a subordinate and used abusive language towards her. The employee referred an unfair dismissal dispute to the CCMA. The CCMA enrolled the dispute for con-arb in terms of s 191(5A) of the LRA. The employee duly arrived for the con-arb process, represented by an official of FAWU. There was no appearance for the employer. The commissioner recorded the following:

"The respondent was not represented. Notification was served on the respondent per fax on 12 January 2010, transmission slip on file, and accordingly I was satisfied that proper notice was given and proceeded in absentia. I spoke with the HR officer who informed me that the respondent did receive notification of the con-arb process and would be represented by their employer’s organisation but they failed to arrive at the scheduled time."

The Commissioner issued a certificate that the matter could not be resolved at conciliation. He then proceeded with the arbitration in the absence of the employer. He found that the dismissal was procedurally and substantively unfair. He ordered the employer to reinstate the employee retrospectively and to pay him back pay equivalent to 3 months' remuneration.

The employer took this decision on review, submitting that the Commissioner charged with presiding over a dismissal dispute in con-arb proceedings has no discretion to proceed with the arbitration in the absence of an employer that has not objected to the con-arb process. The employer submited that even if the Commissioner does have the power to arbitrate in the absence of the employer, the Commissioner should exercise the discretion to do so in a reasonable manner and that this did not happen in the present case. The arbitrator should have postponed the dispute.

The judge did find it inexplicable why the employer did not use the simple procedure prescribed by the LRA in dealing with the award made in its absence, i.e. to apply to the CCMA to rescind the award in terms of section 144.

Extract from the judgment:

36. The correct interpretation, having regard to the plain language of section  191(5A)(c) and the apparent scope and purpose of rule 17 in that context, seems to me to be the following:

36.1If no party has objected to con-arb, the Commissioner must conduct the conciliation on the scheduled date, even if a party fails to appear or be represented.

36.2 In those circumstances, there can obviously be no conciliation in the real sense. The Commissioner will then inevitably issue a certificate that the dispute remains unresolved.

36.3 The Commissioner must then commence the arbitration. There is no peremptory provision that he or she must conclude it.

36.4 Having commenced the arbitration, the Commissioner retains a discretion to adjourn it to a later date. This could be for a variety of reasons – for example, to enable a witness to attend the proceedings; or to provide the party who did not attend or who was not represented to attend or to obtain representation.

37. After having commenced the arbitration, the Commissioner may have to entertain an application for a postponement of the proceedings in terms of CCMA rule 23 and rule 31 by the party who was not present at the conciliation stage.

38. Rule 17(8)  provides that:

"The provisions of the Act and these rules that are applicable to conciliation and arbitration respectively apply, with the changes required by the context, to con-arb proceedings."


39.  One of those provisions is section 138(1) that provides:

"The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.”

40. In order to deal with the dispute fairly, circumstances may arise where the commissioner considers it appropriate to adjourn the arbitration to a later date in order to allow a party to appear or to be represented. One can, for example, envisage a situation where a party has the bona fide intention to attend the con-arb proceedings but is physically prevented from doing so. For example, a representative could be involved in a motor vehicle accident on the way to the con-arb. If that person phones the Commissioner and asks him or her to adjourn the arbitration to a later date, it is inconceivable that the Commissioner would consider it fair to proceed in that party's absence or to insist on a formal application for postponement in terms of CCMA rules 31 and 23.

41. In my view, the applicant’s first ground of review must fail. The Commissioner did not act outside of his powers by proceeding with the arbitration immediately after certifying that the dispute remains unresolved.

42. The applicant submits in the alternative that, irrespective of the interpretation to be afforded to rule 17, the Commissioner failed to appreciate that he had a discretion in terms of rule 30 not to proceed with an arbitration in the absence of Pioneer Foods.

43. Rule 30 provides that:

''(1) If a party to the dispute fails to attend or be represented at any proceedings before the Commission, and that party –

a. had referred the dispute to the Commission, a commissioner may dismiss the matter by issuing a written ruling; or
b. had not referred the matter to the Commission, the commissioner may –

i. continue with the proceedings in the absence of that party; or
ii. adjourn the proceedings to a later date.

(2) A commissioner must be satisfied that the party had been properly notified of the date, time and venue of the proceedings, before making any decision in terms of subrule (1).”

44. The applicant argues that the use of the word "may" indicates that, even if  the Commissioner were satisfied that the applicant had been properly notified in terms of rule 30(2), he could exercise his discretion not to proceed.

45. In the context of con-arb proceedings, rule 30 must be read with rule 17. As I have set out above, my interpretation of that rule – read with section 191(5A) (c) of the Act – is that the commissioner must commence the arbitration part of the proceedings immediately after certifying that the dispute is not resolved; but he retains a discretion to adjourn or postpone the proceedings after that.

46. Mr Boda submitted that it is clear from the arbitration award that the Commissioner failed to appreciate that he has a discretion which he could exercise in this regard. He submitted that a failure to appreciate what powers is afforded to a decision maker, and then by virtue of that failure to exercise such powers, axiomatically vitiates the decision ultimately taken.

47. In this context, it is useful to reiterate what the Commissioner stated with regard to his decision to proceed without the employer party:

“The respondent [employer] was not represented. Notification was served on the respondent per fax on 12 January 2010, transmission slip on file, and accordingly I was satisfied that proper notice was given and proceeded in absentia. I spoke with the HR officer who informed me that the respondent did receive notification of the con-arb process and would be represented by their employer’s organisation but they failed to arrive at the scheduled time."

48. It is not clear from this passage that the Commissioner failed to appreciate that he had a discretion which he could exercise. At the least, he took into account that the notice of set down was properly served by telefax. He then telephoned the HR officer of the company [Swartz] who confirmed that the company had received the notification of the con-arb process. However, its representative failed to arrive at the scheduled time.

49. Despite a paucity of reasoning, it does appear that the Commissioner applied his mind to the question whether he should continue with the proceedings. He did so only after satisfying himself that the employer party had been properly notified of the date, time and venue of the proceedings, as envisaged by rule 30(2).

50. The applicant further submits that, even if the Commissioner did appreciate his discretion to adjourn the matter, he did so unreasonably. This is so, the applicant says, because the employee was dismissed after he had slapped a female subordinate; the Commissioner had been informed that the employer had instructed a representative to attend the proceedings, ie it had the intention of opposing the proceedings; and Swartz had requested a postponement, albeit telephonically.

51. Although the Commissioner does not mention any request for postponement by Swartz in his award, the respondents could not dispute Swartz’s version in this regard, as set out in Van der Merwe’s founding affidavit and her confirmatory affidavit.

52. It is so that the company had an alternative remedy in terms of section 144(a) of the Act. It could have applied for rescission of the award that was made in its absence. Instead, it chose to review the arbitrator's decision to proceed with the arbitration after the conciliation phase.

53. It seems to me that this election has led to unnecessary costs. I will return to that aspect later. However, I cannot see any bar in law for the applicant to have followed this route.

54. Considering, then, whether the Commissioner properly exercised his discretion, it does not appear from the award or the transcript that he considered Swartz’s request for a postponement.This failure was unreasonable in the circumstances.

55. From the evidence of Van der Merwe and Swartz – that could not be disputed – it appears that Swartz made it clear to the Commissioner that the employer seriously intended to oppose the proceedings; that the only reason for its non-appearance was a miscommunication between her and Van der Merwe; and that they were not in wilful default.

56. In those circumstances, the Commissioner's decision not to grant a postponement could not be said to have led to a fair and expeditious resolution of the dispute, or one that would determine the dispute “fairly” and “with a minimum of legal formalities” as envisaged by s 138(1).

This alternative ground of review succeeds. I agree that the decision of the arbitrator should be reviewed and set aside on this ground; and that the dispute should be referred back to the CCMA to appoint another arbitrator to conduct an arbitration de novo in the presence of both parties.