Brief Summary

Labour Law — Unfair dismissal — Review of arbitration award — Warrant Officer and Constable dismissed for misconduct involving extortion and corruption — Arbitration award found dismissal to be unfair — Appellant sought to set aside award and reinstate dismissal — Review application launched out of time, with subsequent applications for condonation and reinstatement of review — Labour Court upheld arbitration award, finding record inadequate for fair determination — Appeal dismissed, confirming Labour Court's decision.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter concerned an appeal to the Labour Appeal Court against a judgment and order of the Labour Court in review proceedings. The underlying dispute arose from the dismissal of two South African Police Service members, Warrant Officer X Senti and Constable S Folokwe, whose unfair dismissal dispute was arbitrated in the Safety and Security Sectoral Bargaining Council (SSSBC).

The appellant was the Minister of Police (cited in the judgment as the South African Police Service as the litigating party), and the first respondent was the Police and Prisons Civil Rights Union (POPCRU) acting on behalf of Senti and Folokwe. The second respondent was the SSSBC, and the third respondent was the arbitrating commissioner (E N M Khumalo N.O.).

Procedurally, the employees were dismissed after a disciplinary hearing. POPCRU referred an unfair dismissal dispute to the SSSBC, which proceeded to arbitration after mediation. On 26 July 2017, the commissioner issued an arbitration award finding the dismissals procedurally and substantively unfair and ordering reinstatement. The employer launched a review application in the Labour Court to set aside that award; the review was brought out of time and required condonation. The review process became protracted due to substantial parts of the arbitration record being missing and unsuccessful attempts to obtain or reconstruct it, leading to multiple interlocutory applications under the Labour Court Rules.

The Labour Court ultimately dismissed an interlocutory application seeking further directions and then dismissed the review, thereby upholding the arbitration award. The Minister of Police appealed to the Labour Appeal Court, challenging both the Labour Court’s dismissal of the interlocutory application and its refusal to set aside the arbitration award. The subject-matter of the dispute was thus the fairness of the dismissals for alleged corruption-related misconduct and, centrally on appeal, the consequences of an incomplete arbitration record for the adjudication of the review.

2. Material Facts

The employees were dismissed following a disciplinary hearing at which they were found to have contravened regulations involving extorting money from a detainee, extorting money in exchange for bail, failing to uphold and enforce the law, and committing corruption. They challenged their dismissals as unfair and referred the dispute to the SSSBC.

At arbitration, the employer relied on, among other things, video footage which it regarded as crucial proof of the misconduct. The commissioner, however, found the dismissals unfair and ordered reinstatement. In the subsequent review proceedings, the employer contended (as summarised in the judgment) that the commissioner relied on extraneous evidence, disregarded rules of evidence, disregarded material evidence, improperly found the video evidence tampered with, failed to address mutually destructive versions, and reached an irrational and unreasonable outcome.

A key undisputed feature that emerged in the review litigation was that the record of the arbitration proceedings was materially incomplete. The missing portions included the cross-examination of Senti, who was the sole witness for the employees, and the video footage relied on by the employer. The parties attempted, over an extended period, to locate the missing recordings and documents and, failing that, to reconstruct the record, but with limited progress. A disc relating to the arbitration was located but could not be transcribed because it was described as inaudible, and the commissioner stated that a recording on his computer was damaged due to corruption caused by a virus.

The employer indicated that the missing portions were crucial to its ability to prosecute the review, given that the video was said to be conclusive and the cross-examination of Senti was directly linked to what the video showed. POPCRU, by contrast, maintained that the available record was sufficient for the Labour Court to determine the review, and it opposed a remittal for a fresh arbitration.

In interlocutory litigation, the Labour Court issued orders aimed at compelling delivery of the record, regulating supplementation and affidavits, and extending time periods for filing. Despite those procedural measures, the review continued to proceed on an incomplete record. A further application by the employer sought a direction that the matter be referred back to the bargaining council for a de novo arbitration before a different commissioner, or for other directions. The Labour Court dismissed that interlocutory application and then determined the review on the record available, dismissing the review and leaving the reinstatement award intact.

3. Legal Issues

The central legal question on appeal was whether, given the inadequacy of the arbitration record, the Labour Court was entitled to determine the review on the incomplete material and uphold the award, or whether the interests of justice required that the award be set aside and the dispute be remitted to the SSSBC for arbitration afresh before a different commissioner.

Closely connected to that question were issues concerning the proper approach to review proceedings where crucial evidence is missing from the record, the allocation of responsibility for ensuring a complete record for review purposes, and whether delay in the prosecution of a review should lead to dismissal where the applicant has acted diligently but is impeded by record deficiencies.

The dispute primarily concerned the application of law to fact and the exercise of a discretionary/value judgment regarding fairness, justice, and appropriate procedural management of the review in circumstances of an incomplete record, rather than a determination of the merits of the dismissal itself.

4. Court’s Reasoning

The Labour Appeal Court drew a distinction between the interlocutory application for “further directives” and the review itself. It agreed with the Labour Court that the employer’s interlocutory application seeking further directions did not warrant success. The court considered that, once the Labour Court was seized with the issue of the record’s adequacy, there were essentially two proper courses: to determine the review if the record was sufficient, or, if inadequate, to exercise a discretion and make an order that the interests of justice required. The Labour Appeal Court therefore found no fault with the Labour Court’s refusal to grant additional directives beyond what had already been ordered in earlier case management and Rule 11 proceedings.

However, the Labour Appeal Court held that the incomplete record created “glaring issues” that rendered the material before the Labour Court (and now on appeal) inadequate for a fair and reasonable determination of the review. A principal deficiency related to the missing video evidence and the missing transcript of Senti’s cross-examination, which was directly linked to the content and interpretation of the video. The court noted that there was an ongoing debate about what could be seen on the video recording, underscoring why the video and associated cross-examination were central to assessing the commissioner’s findings and the review grounds.

The court considered the Labour Court’s approach to the video evidence to be materially affected by error. In particular, it held that the Labour Court had incorrectly reasoned that a remittal would serve no purpose because the video was lost and would not be available if the matter were heard de novo. The Labour Appeal Court pointed out that the employer had other copies of the video and that it was therefore erroneous to treat the video as irretrievably unavailable. This error materially influenced the Labour Court’s conclusion that a remittal would prejudice the employer’s ability to discharge the onus of proving substantive fairness.

The Labour Appeal Court also addressed the commissioner’s stated basis for rejecting the video as “tampered with”. It observed that the commissioner appeared to have rejected the video in its entirety because witnesses for the employer suggested that the version shown at arbitration might have had “a frame or two missing”. The court stated that it could not see why “missing frame or two” would justify a conclusion of tampering where no evidence was led and no submissions were made establishing tampering. While the court did not attempt to determine what conclusions should ultimately be drawn from the video, it held that, on the record available, there was no evident evidentiary basis enabling a confident acceptance of the commissioner’s “tampering” finding, especially in circumstances where the record necessary to interrogate that finding was missing.

The court placed weight on deficiencies in the commissioner’s handwritten notes concerning the video-related cross-examination. The notes reflected that at least three critical questions were asked of Senti about the video, but none of Senti’s responses were recorded. The court regarded this as a serious problem undermining the reliability and usefulness of the notes as a substitute for the missing transcript, because it left the reviewing court without a reliable basis to evaluate the commissioner’s factual findings and the reasonableness of the outcome.

On responsibility for the record, the Labour Appeal Court rejected an unqualified proposition that the onus rests only on the review applicant to ensure a full and proper record is before court. It emphasised that responsibility rests on all parties and, particularly, on the commission/tribunal functionary responsible for maintaining a proper record and ensuring that, in the event of review, a complete record of proceedings can be produced.

The court also addressed the substantial delay. It accepted that, in some circumstances, delay may justify dismissing a review, but held that such an approach depends on a lack of diligence by the applicant. On the facts, the court found that the State Attorney had acted diligently and made extensive efforts to trace and reconstruct the missing portions of the record, as evidenced by numerous affidavits and sustained engagement over time. In that context, the court regarded it as unconscionable to dismiss the matter simply because of the lapse of time, notwithstanding that the employees bore significant prejudice from the delay. The court considered that the appropriate course, in the interests of justice, was to refer the dispute back to the SSSBC to be arbitrated anew before a commissioner other than the original commissioner.

5. Outcome and Relief

The Labour Appeal Court upheld the appeal and made no order as to costs.

It set aside the Labour Court’s order and substituted it with an order that the SSSBC arbitration award issued in POPCRU obo Senti and 1 Other v South African Police Service (case no PSSS 204-16/17) was reviewed and set aside, and that the matter was referred back to the SSSBC for arbitration anew, as a matter of urgency, before a commissioner other than the third respondent. It also ordered that there be no order as to costs in the substituted order.

Cases Cited

No cases were cited in the judgment.

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

The Labour Court Rules were referenced, including Rule 11, Rule 7A(6), Rule 7A(8), and Rule 7A(8)(a).

Held

The Labour Appeal Court held that, while the Labour Court was correct to dismiss the employer’s interlocutory application seeking further directives, the review could not fairly be determined on the incomplete arbitration record available. The missing portions—especially the video evidence and the cross-examination of the employees’ sole witness—were necessary to assess the reasonableness of the commissioner’s decision and the sustainability of findings such as the alleged “tampering” with the video.

It further held that the Labour Court’s conclusion that the video was unavailable for a fresh arbitration was erroneous, and that the commissioner’s notes were an unreliable substitute for the missing transcript because they recorded questions without recording the witness’s answers. In the interests of justice, the appropriate remedy was to set aside the arbitration award and remit the matter to the SSSBC for a de novo arbitration before a different commissioner, with no order as to costs.

LEGAL PRINCIPLES

A reviewing court’s ability to determine the reasonableness of an arbitration award depends on the availability of a record sufficient to allow meaningful scrutiny of the commissioner’s reasoning and factual findings. Where crucial portions of the record are missing and cannot be reliably reconstructed—particularly where the missing material is central to the contested issues—the record may be inadequate for a fair determination of the review.

Responsibility for ensuring a proper record is not invariably placed solely on the review applicant. The duty to maintain and provide a complete record for review purposes rests on all parties, and especially on the tribunal/commission functionary responsible for recording and preserving the proceedings.

Where an incomplete record results in substantial delay, a review is not necessarily to be dismissed on delay alone. The assessment includes whether the review applicant acted diligently in attempting to obtain and reconstruct the record. Where diligence is shown and the record remains inadequate through circumstances not fairly attributable to the applicant, the interests of justice may favour remittal for a fresh hearing rather than dismissal.

When the interests of justice require it, a court may set aside an arbitration award and remit the dispute for arbitration anew before a different commissioner, particularly where the defects relate to missing foundational evidentiary material preventing proper review and undermining confidence in the process.

Minister of Police v Police and Prisons Civil Rights Union (POPCRU) obo Senti and Others (PA15/2021) [2023] ZALAC 19; [2023] 11 BLLR 1158 (LAC); (2023) 44 ILJ 2685 (LAC) (23 August 2023)