Case Number: PSES491-03/04 GP
Province: Eastern Cape
Applicant: K L MAGOLEGO
Respondent: DEPARTMENT OF EDUCATION GP
Issue: Unfair Dismissal - Constructive Dismissal
Arbitrator: K DRISCOLL
EDUCATIONAL LABOUR RELATIONS COUNCIL
Case number: PSES 491-03/04 GP
In the matter between:
K.L MAGOLEGO Applicant
GAUTENG DEPARTMENT OF EDUCATION Respondent
Application for rescission of a ruling to dismiss the above matter at conciliation was received from the Applicant on the 10th of February 2004. Notice opposing the application was received from the Respondent on the 11th of March 2004. No replying affidavit was received from the Applicant.
Reasons for application
The Applicant stated that he had not attended the conciliation as he had been stuck in traffic on the way to the conciliation and had only arrived at the venue after the matter had been dismissed. The Applicant stated that his legal representative had tried to contact the Commissioner but was unable to access the number. The Applicant’s legal representative then arranged for a fax to be sent to the Commissioner’s offices informing her of their late arrival.
The Respondent argued that the Applicant had been given sufficient notice of the date and time of the hearing and that the Applicant had failed to provide sufficient reason for his tardiness. The Respondent argued further that it was questionable as to why the Applicant’s legal representative would send a fax to the Commissioner’s office, knowing that the Commissioner would be at another venue. In addition, the fax was only sent at 09h10, which was after the Commissioner had waited an hour and already left the venue. The Respondent stated that even if the Applicant had tried to contact the Commissioner that the telephone numbers of the Respondent’s representative were on the confirmation, and yet he was not called. The Respondent referred to MTN SA v van Jaarsveld & others (2002) 10 BLLR 990 (LC) where the court held that the test for rescission was a holistic one and included an evaluation of the prospects of success, but more specifically to consider whether the defaulting party was aware of the hearing and whether the explanation tendered was reasonable in the circumstances. The Respondent argued that the Applicant had failed to address his prospects of success in his application for rescission. The Respondent stated that in view of the seriousness of the charges for which the Applicant was dismissed, the Applicant’s prospects of success were nil.
It is clear from the submission of the Applicant that he was aware of the scheduled date and time of his hearing. The Applicant’s explanation for his non-attendance is that he was stuck in traffic. Traffic congestion is usually accepted as a reasonable explanation for delay, and it is one of the reasons why a thirty-minute grace period is allowed before a matter is dismissed due to non-attendance. As the conciliation was scheduled for 08h00, when traffic congestion is usually at its peak, I indicated to the Respondent that I would allow a longer grace period, and in fact waited until after 09h00 before dismissing the matter. The Applicant stated that his legal representative tried to contact me on my cellular phone but could not access the number. The meaning of this statement is unclear. Nevertheless, if the Applicant had my cellular number then he had access not only to the GDE’s representative contact numbers but also the ELRC’s contact numbers as these all appear on the process confirmation letter from the ELRC. It appears the Applicant made no attempt to contact either the GDE or the ELRC. Instead the Applicant chose to send a fax to my office when the matter was clearly to be held at the offices of the GDE. Indeed, the Applicant could have sent the fax to either the GDE or the ELRC, which would have been more logical in the circumstances. In addition to this, the fax was only sent to my office at 09h10, one hour and ten minutes after the scheduled time of the conciliation. I do not therefore accept the Applicant’s explanation for his non-attendance as reasonable in the circumstances.
In circumstances where the explanation for non-attendance is insufficient, it may be that the prospects of success are such that to deny a rescission application would be unfair. The Applicant has not however, addressed me on his prospects of success. I therefore have only the unchallenged version of the Respondent before me. In terms of this version I am not persuaded that the Applicant has reasonable prospects of success should the matter proceed to conciliation or arbitration.
The application for rescission is hereby denied.
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 491-03/04 GP
APPLICANT K L MAGOLEGO
RESPONDENT DEPARTMENT OF EDUCATION GP
NATURE RESCISSION OF A RULING
ARBITRATOR K DRISCOLL
DATE OF ARBITRATION
1 The application for rescission is hereby denied.
DATE OF AWARD