RIGHTFAX SYSTEM AND RESCISSION APPLICATIONS BY NADIRA DEONARAIN & YOGESH SINGH

Thursday, April 16, 2009
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It is compulsory for a person to attend legal proceedings such as arbitration proceedings before the CCMA. What happens when someone who ought to attend such proceedings does not receive prior written notice of the hearing?
 
The answer is simple; in most instances the scheduled matter proceeds in their absence and invariably results in an adverse default award against the absent party. One of the options available to the absent party in these circumstances is to apply for a rescission of the default award, which if successful, will have the effect of cancelling out the award.
 
The legal principles relating to rescission applications are governed by section 144 of the Labour Relations Act 66 of 1995 (the LRA). The test to apply when considering whether or not to grant an application for rescission was set out in Shoprite Checkers v CCMA & Others (2007) 28 ILJ 2246 (LAC), which found that an applicant must show good cause when applying for rescission of an arbitration award.
 
The requirements for good cause are that the applicant must give a reasonable explanation of the default and must show that he has a bona fide defence.
 
Thus far, the vast majority of rescission applications brought before the CCMA and our courts have dealt with notices that were sent via facsimile transmissions. Our case law demonstrates a reluctance on the part of Commissioners and judges to simply rely on a facsimile transmission slip as conclusive proof of notice being received by the party.
 
In Edgars Consolidated Stores (Pty) Ltd v Kalanda and Others [2007] 7 BLLR 632 (LC) 635 the Court held that a Commissioner could not simply rely on the fax transmission slip to determine whether the applicant had in fact received the notice of set-down. The Commissioner was obliged to ensure that the party was properly notified. This is because a telefax notification is not infallible and there is a possibility that the fax may be illegible or ‘lost in the machine’.
 
In essence, then, there is a clear distinction between service and notice. While the fax transmission slip may be proof of service, it is not proof that the other party did in fact receive notice. (Halcyon Hotels (Pty) Ltd t/a Baraza v CCMA & Others [2001] 8 BLLR 911 (LC) 914)
 
Rightfax technology is fairly new technology and works in the following manner:
 
·         Each end-user (employee) has a unique fax number;
·         Faxes that are sent to an employee are received electronically at the employer’s central repository (central server);
·         From here an e-mail notification is then sent to the specific employee’s Microsoft Outlook inbox informing the recipient that a fax has arrived;
·         An electronic version of the fax (usually in pdf format) is also attached to the same e-mail;
·         At this point the employee may elect to open the notification and attachment and print a copy of the fax.
 
The distinguishing feature in Rightfax technology is that the fax is in electronic format. In other words, the fax is literally in cyberspace until the moment that a copy is printed; unlike ordinary faxes where a tangible hardcopy is immediately generated at the recipient’s fax machine.
 
Thus far, neither our courts nor the CCMA have had occasion to pronounce on Rightfax technology in the context of rescission applications – until the recent, as yet unreported, case of SACCAWU obo Michaeline Tsotetsi v Development Bank of South Africa GATW 11127-08.
 
In this case, the CCMA was requested to consider whether rescission should be granted in circumstances where the Rightfax system was in operation and where a CCMA notification of set-down was received by the employer’s Rightfax repository. However, due to a technical fault, no notification e-mail was forwarded to the relevant recipient, being the respondent’s HR representative.
 
An investigation by the employer’s IT department revealed that when the HR representative had changed his name on the system, the Rightfax system was still sending notifications to his old e-mail address, which no longer existed. As such the HR representative did not receive notification of the faxes received (and of the CCMA notice of set-down).
 
It was further revealed that the system did not automatically update e-mail addresses that had changed and no warning or notification was sent to the IT department in the event of a delivery failure or in circumstances where notification was sent to an e-mail address that no longer existed. Accordingly, the employer never received the faxes from the CCMA as the faxes were genuinely lost in cyberspace.
 
The Commissioner formulated a test to be applied regardless of whether the Rightfax system or a manual fax system is used. The test is two-fold:
 
·         Did the notice come to the attention of the intended recipient?
·         If not, was the reason that it did not come to the attention of the employer’s representative due to the wilful or negligent conduct of the employer?
 
In applying the test to the facts at hand, the Commissioner held that it was clear that the notice had not come to the attention of the employer’s representative as the fax notification was sent to the incorrect e-mail address. On the second leg of the enquiry, the Commissioner held that the employer, acting as a reasonable person, conducted an investigation to ascertain what had transpired.
The Commissioner noted that computer systems and electronic devices were fallible.
 
In the circumstances, the Commissioner rescinded the default award granted against the employer on the basis that the employer had shown good cause.
 
The test formulated by the Commissioner in SACCAWU obo Michaeline Tsotetsi is balanced and fair. It addresses the lacuna in the law in relation to faxes received via the Rightfax system, which in our technologically advanced world, looks set to become the norm.
 
It also creates uniformity in that the test can be applied whether the Rightfax system or a manual fax system is used.
 
Nadira Deonarain is a senior associate and Yogesh Singh is an associate in the Employment Department at commercial law firm Bowman Gilfillan.