The fourth respondent (employee) was employed by Shoprite Checkers at its OK Silverton store. In August 1998, she was dismissed following a disciplinary hearing for allegedly using her staff card dishonestly to purchase goods at a discounted price for a person who was not a close family member. An internal appeal on 14 September 1998 upheld the dismissal. On 15 September 1999, the employee referred the dismissal to the CCMA for conciliation, which failed. An arbitration hearing was scheduled for 24 March 1999, but when the employee and her union (SACCAWU) failed to appear, the arbitrator dismissed the claim. The union and employee became aware of this dismissal order in July 1999 but only filed a first rescission application on 30 September 1999 (6 months after the award). This application was defective as the applicant was not served with complete papers despite multiple requests. A second rescission application was filed on 6 June 2001 (27 months after the award). The applicant opposed this application, arguing it was late, prospects of success were weak, and the delay was inexcusable. On 29 November 2002, without an oral hearing, the CCMA Commissioner granted the rescission. Shoprite Checkers sought review of this decision.
The ruling of the Second Respondent (Commissioner) dated 29 November 2002 under case no. GA 45769 was reviewed and set aside. The application of the third and fourth respondents for rescission of the arbitration award of 24 March 1999 in terms of section 144 of the Labour Relations Act of 1995 was refused. There was no order as to costs.
This case is significant in South African labour law for establishing important principles regarding rescission applications before the CCMA. It clarifies that although section 144 of the LRA contains no express time limit for rescission applications, commissioners exercising discretion under this section must have regard to the common law requirement that such applications be brought expeditiously within a reasonable time. The judgment emphasizes the importance of legal certainty and finality in judicial pronouncements. It also reinforces standards of rationality and proper application of mind required of CCMA commissioners when exercising administrative functions, confirming that CCMA decisions are subject to judicial review on administrative law grounds. The case demonstrates that litigants cannot indefinitely escape the consequences of their representatives' lack of diligence, balancing access to justice against procedural regularity and finality.