Brief Summary

Labour Law — Constructive dismissal — Employee alleging constructive dismissal due to pregnancy-related discrimination — Employee resigns and claims unfair labour practice — Appeal by employer against finding of constructive dismissal and compensation awarded — Incomplete record of proceedings due to missing evidence — Court unable to determine appeal on merits due to inadequate reconstruction of record — Appeal dismissed as proper record cannot be lodged.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings were an appeal to the Labour Appeal Court arising from an earlier decision of the Industrial Court. The appeal was brought by the Department of Justice as appellant against Heidi Hartzenberg as respondent.

The respondent had been employed as a prosecutor in the Department of Justice and, after her resignation, she instituted proceedings in the Industrial Court. The Industrial Court (per an additional member, Mrs Grobbelaar) heard the matter in two stages, dealing first with the merits and thereafter with quantum. On the merits, the court found in favour of the respondent. At the quantum stage it awarded compensation of R70 449,00 and allowed costs including the costs of two counsel and an actuary.

The appeal initially came before the Labour Appeal Court on 16 November 2000. At that hearing, it emerged that several cassettes containing the recording of much of the oral evidence were missing, with the result that the appellant had not placed a proper and complete record before the appeal court. The court made an interlocutory order affording the Department a month to compile a reconstructed record, failing which the appeal would be deemed dismissed with costs. The matter returned to the Labour Appeal Court after an attempted reconstruction proved unsuccessful and inadequate.

In substance, the underlying dispute concerned an allegation of constructive dismissal (advanced as an unfair labour practice) arising from the respondent’s resignation. However, the Labour Appeal Court’s decision ultimately turned not on the merits of the alleged constructive dismissal, but on the procedural and remedial consequences of an incomplete appeal record that could not be properly reconstructed.

Material Facts

The respondent was formerly employed by the Department of Justice as a prosecutor in the specialist commercial branch at the Pretoria Magistrates’ Court. In late September 1995 she became pregnant. With effect from January 1996, she was assigned to a training post in the same branch, which meant she was relieved of her prosecutorial duties. In early March 1996, she resigned from the public service on 24 hours’ notice.

After resigning, the respondent instituted proceedings in the Industrial Court. Her case, in essence, was that despite the resignation she had in reality been constructively dismissed, and that this occurred in circumstances amounting to an unfair labour practice. Among the allegations referred to in the Labour Appeal Court’s judgment was that, on account of her pregnancy, she was forced by superiors to accept the training post against her will, causing her unhappiness. The Labour Appeal Court did not determine the merits of these factual allegations in the appeal before it, because the appeal could not be properly adjudicated without a complete record.

The Industrial Court heard evidence on the merits. The respondent testified first. Her evidence-in-chief (nearly 40 pages) was fully recorded and transcribed, but the record then stopped. The respondent’s cross-examination and re-examination were missing, save for an attempted reconstruction. The Department called four witnesses (Adv Dicker, Mr Bezuidenhout, Ms Kannemeyer, and Ms Humphries). Their testimony was also missing, save for the attempted reconstruction.

It was undisputed before the Labour Appeal Court that the attempted reconstruction was inadequate. It was compiled from counsel’s incomplete and cryptic notes. Mrs Grobbelaar could not find her bench notes and was not prepared to certify the reconstruction as true and correct. The missing evidence related to the merits stage, and the appeal was understood to turn significantly on credibility. Despite a diligent search, the missing cassettes could not be found and there was no indication they would be recovered.

It was also placed before the Labour Appeal Court that the Industrial Court no longer operated save to finalise part-heard matters, and that pending matters were now performed by the Commission for Conciliation, Mediation and Arbitration (CCMA). The Labour Appeal Court did not regard this matter as part-heard.

Legal Issues

The central legal question was the appropriate course for the Labour Appeal Court where a party’s right of appeal could not be meaningfully exercised because a complete and correct record could not be produced and a proper reconstruction was not achievable.

This required the court to determine, as a matter of procedural law and remedial discretion, what should be done when an appeal turns on credibility but the record is materially incomplete. The dispute before the Labour Appeal Court concerned the application of procedural principles (including rules regarding appeal records and reconstruction) to the circumstances of the missing record, and involved an evaluative balancing of prejudice in selecting a remedy.

A further issue was whether the Labour Appeal Court was bound by its earlier interlocutory order of 16 November 2000 (which contemplated dismissal if reconstruction was not produced timeously), given that it had later become apparent that a proper reconstruction could not be achieved.

Court’s Reasoning

The Labour Appeal Court approached the matter from the premise that an appeal court generally requires a proper and complete record to determine an appeal, particularly where credibility findings are important. It accepted that the attempted reconstruction was “hopelessly inadequate” for the proper determination of the appeal and emphasised that the trial court member (Mrs Grobbelaar) was not prepared to certify it. The court regarded the absence of a reliable record as decisive because the missing portions related to the merits, and the appeal turned significantly on credibility.

On the earlier interlocutory order, the court held it was not bound by the order made on 16 November 2000. It characterised that order as interlocutory, made at a time when reconstruction was believed feasible. The court accepted that the Department’s reconstruction was late, but considered the delay not undue and adequately explained. The court treated the key change in circumstances as the later realisation that a proper reconstruction could not be achieved, and it considered it wrong to penalise the appellant by dismissing the appeal due to a relatively minor delay when the fundamental problem was the irretrievable incompleteness of the record.

The court then located the issue within the Labour Appeal Court Rules, particularly Rule 5, noting that while Rule 5 does not expressly address the situation where a complete record cannot be lodged, it implicitly requires that an appeal record must be a complete and correct record subject to permissible omissions. The court referred to Waverley Blankets Ltd and Others; Waverley Blankets Ltd v Sithukuza and Others (1999) 20 ILJ 2564 (LAC) as distinguishable because, in that matter, there was no suggestion that a proper record could not be lodged.

The court considered comparative authority. It discussed the criminal appeal position as settled in S v Joubert [1990] ZASCA 113; 1991 (1) SA 119 (A), where an appeal record could not be reconstructed and the failure frustrated an accused’s right of appeal, entitling the accused to an acquittal. The court noted the “replica” principle and also referred to S v K 1991 (2) SACR 190 (B) as illustrating the frustration principle. However, the court treated the criminal appeal approach as context-specific, particularly because of the State’s duties in criminal proceedings and the nature of the relief (acquittal). It regarded the civil appeal position as less clear.

In surveying civil authority, the court cited a line of cases establishing that it is generally the duty of an appellant’s attorney to lodge a complete and correct record timeously and to seek condonation if compliance is not possible. It observed that, in the cited civil cases, there was no instance in which it had been suggested that material parts of the record were lost and could not be reconstructed, thereby limiting their direct application to the present facts.

The court considered Beaumont v Anderson 1949 (3) SA 562 (N), a matter where portions of a magistrates’ court record were lost and the magistrate was unable to furnish reasons. In that case, the court had declined to order a hearing de novo and instead remitted the case for the magistrate to re-hear only the plaintiff’s evidence, referencing EX PARTE FIRTH (46 LT 120). The Labour Appeal Court held that such a partial re-hearing would be inappropriate in the present matter because it would entail re-hearing most of the evidence, including the respondent’s cross-examination, and because credibility was important with both sides’ witnesses implicated. It further expressed concern about requiring the original presiding officer to revisit evidence after having formed perceptions of witnesses, and noted the infeasibility of remitting only part of the merits to a differently constituted court.

The court then addressed an alternative proposal advanced for the appellant: remitting the matter to Mrs Grobbelaar for a “reconstruction hearing” in which witnesses would be taken through prior cross-examination and re-examination within the parameters of notes, without any new cross-examination. The court rejected this proposal as too risky. It reasoned that the attempt might generate new disputes, might still fail to yield certification, and might invite the appeal court to resolve disputes about the reconstruction—an outcome the court regarded as inadvisable.

Having rejected these intermediate options, the court stated that the remaining choice was between allowing the respondent’s judgment to stand (thereby frustrating the Department’s right of appeal) or setting it aside and referring the matter for hearing de novo (thereby depriving the respondent of the existing judgment and causing additional costs and delay). The court weighed prejudice. It considered the respondent’s submissions regarding finality, expedition in labour matters, alleged delay by the Department’s attorney, the possibility of further appeal, and an asserted “trauma” in testifying again. It also considered the contention that it was the State’s fault the tapes were missing.

On fault, the court held it was not the appellant Department’s fault that the tapes were lost; the responsibility for safekeeping rested on the Department of Labour. It considered it too far-reaching to attribute fault across state departments in the manner suggested. It also noted the circumstances of the loss were unknown and that the State should not be blamed for the absence of Mrs Grobbelaar’s notes. The court rejected the trauma argument, but accepted that other prejudice points had some force. Nonetheless, it concluded that the appellant’s right of appeal was the overriding consideration. It reasoned that all witnesses remained available, and that if the matter were remitted, the respondent could again prove her case and would have her position on costs safeguarded; whereas if the appeal were dismissed, the Department would be fixed with a monetary liability and an adverse constructive dismissal finding that might not have been sustained on appeal. On this evaluative balance, the court found that a re-trial represented the “lesser inequity,” and clarified that it meant a re-hearing on all aspects of the case.

Finally, the court addressed the institutional consequence that the Industrial Court no longer operated except for part-heard matters. Relying on item 22A of Schedule 7 to the Labour Relations Act 66 of 1995 read with Government Notice No R214 published in the Government Gazette dated 19 February 1999, the court held the matter was not part-heard and therefore must be remitted to the CCMA. It recorded a letter indicating the National Senior Commissioner’s regret and an offer to make available an experienced commissioner to try the case de novo.

On costs, the court accepted a concession that the Department should pay the costs of the hearing on 16 November 2000 as those costs were wasted. For the remainder, it considered it fair that costs at first instance and on appeal should be costs in the cause of the re-hearing.

Outcome and Relief

The Labour Appeal Court set aside the judgments and orders of the Industrial Court and referred the matter to the Commission for Conciliation, Mediation and Arbitration for a re-hearing de novo before a commissioner other than Mrs Grobbelaar.

The appellant was ordered to pay the costs of the hearing before the Labour Appeal Court on 16 November 2000 on the basis then ordered. All other costs at first instance and on appeal were ordered to be costs in the re-hearing.

Cases Cited

Waverley Blankets Ltd and Others; Waverley Blankets Ltd v Sithukuza and Others (1999) 20 ILJ 2564 (LAC).

S v Joubert [1990] ZASCA 113; 1991 (1) SA 119 (A).

S v K 1991 (2) SACR 190 (B).

Beaumont v Anderson 1949 (3) SA 562 (N).

EX PARTE FIRTH (46 LT 120).

Kahn v Radyn 1949 (4) SA 552 (C).

Nicol’s Motor Works v Breytenbach 1953 (4) SA 1 (T).

Anastassiades v Argus Printing and Publishing Co Ltd 1955 (2) SA 349 (T).

Bekker v Dawkins Steenmakery 1959 (1) SA 32 (T).

Mashaba v Engelbrecht 1959 (1) SA 34 (T).

Van Der Riet v Rheeder 1965 (3) SA 712 (O).

Senator Versekerings Maatskappy Bpk v Lawrence 1982 (3) SA 132 (A).

Rennie NO v Gordon and Another NNO 1988 (1) SA 1 (A).

Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A).

SA Broadcasting Corporation v Corrective Action Holdings (Pty) Ltd t/a Mass Media Marketing 1999 (3) SA 601 (W).

Dos Santos v Unibank Ltd 2000 (1) SA 801 (W).

Mamabolo v Rustenburg Regional Local Council [2000] ZASCA 133; 2001 (1) SA 135 (SCA).

Legislation Cited

Labour Relations Act 66 of 1995, item 22A of Schedule 7.

Government Notice No R214, Government Gazette dated 19 February 1999.

Rules of Court Cited

Labour Appeal Court Rule 5(7).

Labour Appeal Court Rule 5(10)(f), Rule 5(10)(g), and Rule 5(10)(h).

Labour Appeal Court Rule 5(15).

Labour Appeal Court Rule 5(12) and Rule 5(16).

Labour Appeal Court Rule 5(17).

Held

The Labour Appeal Court held that the attempted reconstruction of the missing portions of the record was inadequate and could not be certified as complete and correct, and that the appeal could not be properly determined because the missing evidence related to the merits and credibility issues.

It held that it was not bound by its earlier interlocutory order made when reconstruction had been thought feasible, and that the overriding consideration was the appellant’s right of appeal, which would otherwise be frustrated.

It held that the appropriate remedy was to set aside the Industrial Court’s judgment and order and to remit the matter for a full re-hearing de novo, and that because the Industrial Court no longer functioned for pending matters of this kind, the re-hearing had to take place before the CCMA before a commissioner other than the original presiding officer.

LEGAL PRINCIPLES

A party prosecuting an appeal bears the procedural obligation, under the applicable rules, to provide a complete and correct appeal record, subject only to permissible omissions, and an appeal court may be unable to adjudicate an appeal where material portions of the record are missing and credibility is central.

An interlocutory order regulating steps for reconstruction of a record may be revisited where later developments show that the assumptions underlying the order (such as the feasibility of proper reconstruction) were incorrect, and where adherence would produce an unjust result.

Where a civil appeal record is materially incomplete and cannot be properly reconstructed, and where the appeal cannot be fairly determined, the appeal court may be required to choose between allowing the existing judgment to stand (frustrating the right of appeal) and setting aside the judgment with a remittal for a hearing de novo; that choice involves an evaluative balancing of prejudice.

In selecting the appropriate remedy, the court may consider fault and responsibility for the loss of the record, but it will assess fault on the established facts and will not readily attribute responsibility across different state departments without a proper basis.

Where institutional changes have transferred the functions of a former tribunal, the appropriate forum for a rehearing will be determined by the applicable transitional provisions, and the matter may be remitted to the successor institution for a hearing de novo.

Department of Justice v Hartzenberg (JA16/00) [2001] ZALAC 7; 2002 (1) SA 103 (LAC) (5 June 2001)