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[2007] ZALAC 27
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Papane v van Aarde NO and Others (JA 25/05) [2007] ZALAC 27; [2007] 11 BLLR 1043 (LAC); (2007) 28 ILJ 2561 (LAC) (20 March 2007)
50
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
Held
in Johannesburg
Case no JA
25/05
In the matter
between
ISRAEL SABATA
PAPANE
Appellant
and
MARTINUS VAN
AARDE N.O.
First Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
Second Respondent
SOUTH AFRICAN
BROADCASTING
CORPORATION
Third Respondent
JUDGMENT
Zondo JP
[1] I have had the
opportunity of reading the judgment prepared by Kruger AJA in this
matter which comes after this judgment. I
agree with the judgment
same the decision that the matter should be decided on the merits.
[2] I am of the view
that it would not accord with the dictates of justice and fairness to
determine this matter on the merits.
I say this because the record of
the arbitration proceedings the award of which was sought to be
reviewed in the court below is
incomplete and the evidence that is
missing from the record may well prove very material if found and,
may, therefore, influence
the ultimate judgment. I also say this
because the commissioner whose arbitration award was sought to be
reviewed and set aside,
was not given an opportunity to indicate
whether he objected to the application to review his award being
dealt with on the basis
of an incomplete record. The commissioner was
an interested party in the review proceedings in the Labour Court. In
my view before
his award could be reviewed and set aside on the basis
of a record containing less evidence than he had before him when he
made
his award, the commissioner was entitled to be given an
opportunity to say: I don’t mind if the application to review
my
award is considered on the basis of an incomplete record of the
evidence I had before me because whatever evidence is missing is
irrelevant or insignificant or to say: I object to the review
application being considered on the basis of less evidence than
I had
before me until all steps, including those that I may take, have been
taken to ensure that there is before the Court a complete
record of
the evidence that I had before me when I decided on this award. Of
course, in an appropriate case the court can overrule
the arbitrator
in this regard. But that is a different issue. He must be given a
chance to give his views.
[3] The appellant
served the incomplete record on the CCMA (and not directly on the
commissioner). He also served on the CCMA an
affidavit in which he
said that he was aware that the record was incomplete and that he was
told by the company responsible for
the transcription that there were
no further cassettes available to complete the transcript in respect
of the arbitration proceedings.
I must point out that the fact that
the appellant filed an incomplete record meant that he had failed to
comply with the rules
of the Labour Court which require that a
complete record of the arbitration proceedings be filed when an
arbitration award is sought
to be reviewed. This means that the
appellant required to make an application for the condonation of his
failure to comply with
the relevant rule of the Labour Court. In the
condonation application he would be required to justify why the
review application
should be heard without the missing parts of the
record and to show what steps he had taken to try and secure or
reconstruct the
missing parts of the record. The Court would not
ordinarily allow a review application to be considered on the merits
without a
complete record of the evidence that had been before the
arbitrator whose award was sought to be reviewed.
[4] In the light of
the above I am of the view that the Labour Court should not have
proceeded to hear the review application on
the merits. No good cause
had been shown why the relevant rule of Court had not been complied
with and the missing parts of the
record could well throw light one
way or another on the question whether it was part of the appellants’
service conditions
to work night shift. In this regard there are
three matters that are a cause for concern to me. I deal with them
below.
(a) It appears to be
common cause that a letter of appointment was given to the appellant
and that in such letter it was not stated
that part of his conditions
of employment was to work night shift. The question that arises is:
if the working of night shift was
such a material or important part
of the appellant’s conditions of service, why was it not stated
in the letter of appointment
that it was part of his conditions of
service? In this regard it is common cause that there was no written
contract of employment
that the appellant signed. Does the fact that
the letter of appointment did not say anything about the appellant
having to work
night duty not mean that, indeed, as he contends, it
was not part of his conditions of service to work night shift? The
question
arises were the SABC’s witnesses asked about the fact
that the letter of appointment said nothing about this issue? If they
were asked, what answer or answers did they give? I do not have any
way of knowing this because their evidence in its entirety
is not
included in the record. I do not think that it is an answer to say
that the commissioner has summarised their evidence in
his award
unless the parties, including the commissioner who conducted the
arbitration, were to advise that the missing parts of
the evidence do
not include anything on that. It is not enough because the
commissioner might have left that out of his summary
if he did not
appreciate its significance. It is not enough if only the appellant
and the SABC agree upon this and they exclude
the commissioner.
(b) Another matter
that causes me concern with regard to this matter is the fact that
the SABC included the obligation to work night
shift in the
collective agreement that it concluded with the union to which it
thought the appellant belonged. This Court found
in previous
proceedings between the parties that the appellant was not a member
of that union. He was, therefore, not bound by
the collective
agreement, and, therefore also by the clause in the collective
agreement, imposing the obligation to work night
shift. The question
that arises is: if the nature of the job that the appellant did was
such that there was an inherent obligation
to work night duty, as is
contended by the SABC, why did the SABC seek to include the
obligation to work night duty in the collective
agreement if there
was such an obligation anyway even without such agreement? Was this
not because there was no such obligation
and the SABC sought to
create such an obligation?
[5] It is true that
the appellant, by responding to the advertisement for the position to
which he was appointed agreed to work
“
shifts and long
hours
” because the advertisement did say that any person
seeking appointment to such position should be prepared to work
shifts
and long hours. The SABC seems to think that an agreement to
work shifts necessarily means an agreement to work night shift. I do
not think that this is correct. An employee can work shifts without
working night shift. An example of this would be where in one
week
such employee worked a shift from 06h00 to 14h00 and in another week
he worked a shift from 14h00 to 20h00. Sec 17 of the
Basic Conditions
of Employment Act No 75 of 1997 (“
the BCEA
”)
prohibits the working of night shift unless there is an agreement
between the employer and the employee. There is no corresponding
prohibition of the working of shifts which are not night shifts.
Accordingly, the working of night shift requires a specific
agreement.
Accordingly, an agreement to work shifts does not per se
mean an obligation to work night shift. It may be that because the
appellant
was not new to the SABC, he knew that a person working in
the position that was advertised would necessarily work night shift
but
I would prefer to consider this as part of all the evidence
including the evidence not included in the record before making a
decision
on the issue.
[6] The appellant
worked night duty for a long period. In the incomplete record that
has been filed we know that he explained why
he did not complain over
a long period about working night shift and his evidence appears to
be uncontradicted. It might or might
not become contradicted when all
evidence that was led is in the record. I do not know. When asked why
he had not complained, the
appellant explained: “
The reason
is simple Andre, because Fred has made a promise with me and he
requested that I must give him a chance so that he should
appoint a
production manager. At the present moment he is the only regional
manager who is operating across the board and he cannot
do
everything
.” This explanation is consistent with the
statement the appellant made elsewhere where he said that he had
worked night duty
because he was helping out. It does not appear that
it was put to him that the explanation he gave was false nor does it
appear
that the “
Fred
” he refers to was called to
contradict his explanation. In those circumstances I do not think
that a basis exists in law
to decide the matter on the basis that his
explanation is not genuine. Maybe the evidence of one or other
witness which was not
included in the record would deal with this. I
simply do not know.
[7] If the terms and
conditions of employment which existed when the appellant commenced
in the position did not include an obligation
to work night duty,
then, if the SABC seeks to say that by agreeing to work night duty on
the occasions that he did, the appellant
was in effect agreeing to
work night duty forever while he was in that position, it would have
to prove an amendment of his conditions
of employment. Furthermore,
if it seeks to say that he worked night duty for so long that he must
be taken to have agreed to forever
work night duty on the occasions
when required to do so in the position in which he was employed, a
number of questions would arise.
One would be: what about the
explanation that the appellant gave as to why he had agreed to work
night duty when he did? For how
long did his practice of working
night duty have to go on before it could form part of his conditions
of service? Has it been shown
that such period was long enough?
[8] With all of the
above questions I am not sure that, on the incomplete record, I would
be able to find against the appellant.
However, what is clear to me
is that there is no justification why the evidence that has not been
included in the record was not
secured or reconstructed before the
merits of the review application could be considered by the Court a
quo. There is no justification
that has been advanced for this
omission. The Court a quo also did not give any reasons as to why it
proceeded to deal with the
merits of the review application without a
complete record.
[9] I do realise
that the matter has been dragging on for a long time and
considerations of finality in litigation enter the picture.
However,
I think that that factor can be adequately addressed by giving an
order which is similar to an order that this Court gave
on the 6
th
March 2007 in a matter where the Labour Court had also dealt with the
merits of a review application when the record of the arbitration
was
incomplete. Such order imposes deadlines for the taking of certain
steps and directs the Registrar of the Labour Court to give
the
matter some priority in setting it down once the record is complete.
[10] I would
accordingly make an order in the following terms:-
“1.
The
appeal is struck off the roll.
The order
granted by the Labour Court is set aside and replaced with the
following order:
“
(a) The
application for review brought by the applicant is struck off the
roll in order to enable the parties in this matter together
with the
Commissioner who heard the arbitration to reconstruct those parts of
the record of the arbitration proceedings that are
missing in the
record and supply whatever documents including exhibits before the
Commissioner into the review record.
The applicant
is directed to immediately take such steps as may be necessary to
initiate the process aimed at achieving the
purpose envisaged in
(a) above, including bringing to the attention of the Commissioner
the fact that the record filed in this
review application was
incomplete and that her co-operation is required to ensure that
there is a complete record before the
Court.
The complete
record must have been filed or delivered to the Registrar within
thirty (30) Court days from 6 March 2007, failing
which the
applicant must in writing through the Registrar apply for an
extension of time if the complete record is not filed
within that
period.
Once the record
has been filed with the Registrar or at the time of filing the
complete record, the applicant must in writing
request the
Registrar to give the matter some priority in setting it down for
hearing in the Labour Court and it is ordered
that the Registrar
should give the matter some priority.
The applicant
is ordered to pay the third respondent’s costs but such costs
shall be limited to disbursements”.
Zondo JP
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
Case no JA
25/05
In the matter
between –
ISRAEL SABATA
PAPANE
Appellant
and
MARTINUS VAN
AARDE N.O.
First Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
Second Respondent
SOUTH AFRICAN
BROADCASTING
CORPORATION
Third Respondent
JUDGMENT
Kruger AJA:
[1] This is an
appeal against an order of the Labour Court dismissing a review
application which had been brought by the appellant
against the
respondents. In that review application the appellant had sought to
have the Labour Court review and set aside an
arbitration award
issued by first respondent under the auspices of the second
respondent to the effect that his dismissal by the
South African
Broadcasting Corporation (the "SABC") was fair. The
appellant, who appeared in person before us, was dismissed
from the
employment of the SABC. The first respondent, the commissioner at
the second respondent (the Commission for Conciliation,
Mediation and
Arbitration) (the "CCMA") found the dismissal procedurally
and substantively fair. The Labour Court dismissed
the appellant's
application to review that award. It is against that decision of the
Labour Court that this appeal lies. Leave
to appeal was granted by
that Court.
The
appellant's application to lead further evidence
[2] Appellant filed
a notice of motion under s 174 of the Labour Relations Act 66 of 1995
(the "Act") for this court to
admit new evidence which was
not before the Labour Court. That evidence was the record of the
proceedings before the disciplinary
hearing, which appellant said did
not form part of the papers before the commissioner or the Labour
Court. Appellant withdrew that
application at the outset of the
hearing in this court. Nothing more needs to be said about that
application.
Authority of
attorneys and Dr Naves to represent the SABC
[3] The attorneys
purporting to act on behalf of the SABC, namely, Maserumule Inc, did
not file a power of attorney with their heads
of argument as required
by Rule 6 of the rules of this Court. Rule 6 reads as follows:
"6(1) A power of attorney
authorising a representative to prosecute the appeal or the
cross-appeal must be delivered within
10 days of the delivery of any
notice of appeal or cross-appeal.
(2) If there is no cross-appeal,
a power of attorney to oppose an appeal must be filed with the
registrar by the respondent's representative
when copies of the
respondent's main heads of argument are filed under rule 9."
[4] Maserumule Inc filed their heads of argument on 20
September 2005. A document purporting to be a power of attorney was
filed
subsequently on 29 September 2005, six days after the heads of
argument had been filed. Maserumule Inc also filed a condonation
application on the same day. The deponent to the affidavit filed in
support of the condonation application, Ms Sono, says the
filing of
the power of attorney together with the heads of argument was
inadvertently omitted. A power of attorney dated 27 September
2005 is
attached to the condonation application. It is signed by Pat Naves,
Director of Human Capital at the SABC. There is also
a letter from
Maserumule Inc addressed to the registrar, dated 28 September 2005
stating: "Kindly note that the power of attorney
is subject to
ratification by the board of directors at a board meeting due to be
held in October 2005."
[5] The appellant
took the point that the opposition to his appeal was unauthorised and
that Maserumule Inc were not authorised
to represent the SABC. What
Maserumule had to show was that the SABC was properly before the
Court and that they had authority
to represent it.
[6] At the hearing
of this appeal on 5 September 2006, it was pointed out to Mr
Maserumule, who purported to appear for the SABC,
that no document
had been filed confirming ratification of the power of attorney by
the board of directors of the SABC in accordance
with the letter of
28 September from his firm to the registrar. Mr Maserumule was, after
some argument, granted an opportunity
to deliver the necessary
documents later dealing with this issue of authority and to file
whatever condonation application, if
any was required. The appellant
was to also have an opportunity to file papers in response to
whatever papers Maserumule Inc filed.
All of this was ordered with
the consent of the appellant. In the meantime, Mr Maserumule was
allowed to present oral argument
“on behalf of
”
the SABC on the assumption that he would be able in due course to
prove that opposition of the appellant's appeal had been
duly
authorised and that he was authorised to represent the SABC in this
appeal. Obviously, if this was not proved, the appeal
would have to
be dealt with on the basis that it was unopposed.
[7] On 6 September
2006 Maserumule Inc filed a further condonation application regarding
the power of attorney. The affidavit filed
in support of the
condonation application was deposed to by Ms Sono who is an attorney
employed by Maserumule Inc. There is no
affidavit deposed to by any
member of the Board of the SABC or any official or employee of the
SABC either to confirm any of the
statements made by Ms Sono in her
affidavit or in support of the condonation application. Ms Sono does
not say in her affidavit
that she has been authorised by the relevant
authority at the SABC to bring this condonation application on its
behalf. Ms Sono
has not put up any proof that she was authorised to
bring this condonation application on behalf of the SABC and to
depose to the
affidavit.
[8] I find it very
disturbing that Maserumule Inc omitted to put up proof that they were
authorised to bring this condonation application
and that Ms Sono was
authorised to depose to the affidavit that she deposed to when their
authority to represent the SABC has been
questioned and they are
supposed to prove it. Indeed, this is more surprising when regard is
had to the fact that during their
preparation for the hearing of this
matter, they should have realised that they had not provided the
ratification that they had
hoped to provide and should then have
addressed the issue of authority before the hearing. One would have
thought that, when one’s
authority has been challenged, one
would make sure that whatever one did thereafter, one put up the
required proof of authority.
[9] In the
supporting affidavit deposed to by Ms Sono, she stated that during
the board meeting on 24 October 2005 the issue of
the authority or
power of attorney was not deliberated upon and no resolution was
passed to the effect foreshadowed in her letter
to the registrar
dated 28 September 2005. I do not know how Ms Sono knows what was or
was not deliberated upon by the Board of
the SABC at the particular
meeting. I am sure that she is not a member of the Board of the SABC
because, if she was one, she definitely
would have said so in her
affidavit.
[10] In paragraph 2
of her affidavit Ms Sono said that the “
facts contained”
in the affidavit “
are unless otherwise stated or the
converse appears
from the context, within my personal
knowledge.…”
With regard to what was or was not
deliberated upon at the relevant meeting of the Board of the SABC, it
does appear from the context
that Ms Sono does not, or, cannot, have
personal knowledge thereof. She also does not say how she might have
come to know what
was or was not deliberated upon at the meeting of
the Board of the SABC. Quite clearly, her evidence in this regard is
hearsay
and inadmissible.
[11] Ms Sono annexed
to her affidavit a new power of attorney signed by Dr Patience Naves
as "Group executive: Human Capital
Services" on 6 September
2006. In paragraph 8 of her affidavit, Ms Sono, among other things,
says: “
I am advised that Dr Patience Naves, who had signed
the power of attorney in any event, had the delegated authority in
her capacity
as a member of the Group Executive of the [SABC] to sign
the power of attorney and authorise the [SABC’s] attorneys to
defend
the appeal
.
I attach an extract of the Delegation of
Authority Framework, Version 2, marked annexure ‘BMS1’
”.
[12] It will be
noted that Ms Sono says that she is advised that this is the
position. She does not disclose by whom she has been
advised nor does
she put up an affidavit deposed to by the person who advised her and
who has personal knowledge that this is the
position. Accordingly,
her evidence in this regard is hearsay and inadmissible. Why she did
not get an affidavit from somebody
at the SABC who has personal
knowledge of this is difficult to understand.
[13] Ms Sono annexed
to her affidavit an extract from some document purporting to deal
with the “
Delegation of Authority Framework of the SABC
.”
This was in addition to the power of attorney signed by Dr Naves
which she also attached to her affidavit
.
Ms Sono says that Dr
Patience Naves is a member of the group executive. There is a letter
from the group chief executive officer
of the SABC dated 5 September
2006 stating that Dr Patience Naves is the Group Executive: Human
Capital Services at the SABC. There
is no affidavit deposed to by the
Group Chief Executive Officer of the SABC. In fact even that letter
is not signed by the Group
Chief Executive himself but by someone
else who purports to sign on behalf of the Group Chief Executive.
Accordingly, we do not
even know whether the Group Chief Executive
knows about this letter.
[14] It is not clear
what the status of the Delegation of Authority Framework is. There is
no affidavit deposed to by anybody from
the SABC saying what this
Delegation of Authority Framework is. At page 5 thereof it is
described as an agreement between the
shareholders of the SABC and
the SABC. Dr Naves has also attached some page to the power of
attorney she has signed and claims
that such page proves certain
delegated powers. That page proves absolutely nothing. Something is
written therein but it has no
meaning. That part of this document
from which Dr Naves purports to derive her authority is not clear,
and is not explained. The
institution and defence of legal
proceedings is dealt with under the heading: "
Legal
".
Paragraph (c) thereof provides: "
Institute or Defend
Procedures in Court (High, Magistrate or Small Claims Court) and the
settlement of disputes by arbitration or
mediation
". There
is no reference to the Labour Court or the Labour Appeal Court. The
involvement of the "
Chief Legal Advisor as the only GEM"
seems to be required together with a group executive member. There is
no sentence saying what this is all about. As I have said
it has no
meaning. It does not convey anything.
[15] With regard to
the power of attorney signed by Dr Naves, it is to be noted that she
purports to appoint attorneys for the SABC
but there is nothing
anywhere including in the document she attaches to her affidavit that
purports to give her authority to appoint
attorneys for the SABC –
which is a separate issue from the power to institute or defend court
proceedings.
[16] In his opposing
affidavit the appellant contends that the SABC should be found to be
not properly before the Court. As a preliminary
point appellant
argues that Ms Sono is neither the SABC nor an employee of the SABC.
He submits that the law only permits legal
representatives to
represent parties before court, but not to become litigants. He also
contends that the SABC should have acted
more expeditiously to
rectify the matter of the power of attorney. The appellant submits
that Ms Sono’s evidence is hearsay,
and that she has no
personal knowledge of what she deposed to.
[17] The appellant
also contends that the powers of attorney filed by Maserumule Inc
must be rejected because they are not stamped
in accordance with rule
67(a)(iii) of the Uniform Rules of Court. It is convenient to
immediately dispose of this point. That rule
deals with appeals from
lower courts to provincial or local divisions of the High Courts. It
does not apply to this Court or the
Labour Court. The rule which is
applicable in the present circumstances is rule 6 of the Rules of
this Court. In terms of that
rule no stamp duty is required for
powers of attorney. Item 19 of the Stamp Duties Act 77 of 1968, which
dealt with powers of attorney,
was repealed by s 14(1) of Act 32 of
1999.
[18] Proof that the
SABC has authorised the opposition of the appellant’s appeal
and that Maserumule Inc have been authorised
to represent the SABC
would normally be provided by way of an affidavit deposed to by a
person who attended the meeting of the
Board of Directors which
issued a resolution to the effect that the SABC oppose the appeal and
authorising Maserumule Inc to represent
the SABC in that regard. The
resolution would then be annexed to that affidavit. If the Board has
delegated that authority to some
official, proof of that fact would
have to be provided.
[19] We have not
been provided with any resolution of the Board of the SABC
authorising that the appellant’s appeal be opposed.
First,
there was a letter that said that there would be a meeting of the
Board of the SABC which would provide ratification of
the power of
attorney that had been filed. Then no ratification of the Board was
filed. Then we were informed – by way of
hearsay evidence –
that the Board had not deliberated on the matter. Thereafter we were
told that in any event it was unnecessary
for the Board to ratify
that power of attorney because Dr Naves had authority to make the
relevant decision.
[20] As proof that
Dr Naves occupies the position that we were told she occupies at
SABC, a letter was provided purporting to be
written by the Group
Chief Executive. However, the letter was not signed by the Group
Chief Executive but was signed by somebody
else who purported to do
so on behalf of the Group Chief Executive. The Group Chief Executive
did not depose to any affidavit.
The person who purported to sign on
behalf of the Group Chief Executive did not depose to any affidavit
either.
[21] The document
annexed by Dr Naves to the power of attorney signed by her made no
sense. Where the incomplete document put up
by Ms Sono as showing
that Dr Naves had the requisite authority referred to the institution
or defending of legal proceedings,
it referred to the institution or
defending of court proceedings in the High Court, Magistrates’
Court and Small Claims Court
and did not refer to the institution or
defending of proceedings in the Labour Court or in this Court.
Hearsay evidence was tendered
without any attempt to justify it on
the basis of any of the recognised exceptions to the rule against
hearsay evidence. To crown
it all a condonation application was
brought by Ms Sono without any attempt whatsoever to show that the
SABC had authorised the
bringing of such condonation application and
for her to depose to an affidavit in support thereof. This matter
could have been
handled much better than it was.
[22] We have no
hesitation in finding that Maserumule Inc have failed to show that
the SABC has authorised the opposition of the
appellant’s
appeal and that they have the authority to represent the SABC in this
matter. Accordingly, the SABC is consequently
not properly before us.
No question of condonation arises in the absence of proper
authorisation. At any rate even the condonation
application which Ms
Sono purported to bring on behalf of the SABC was not shown to be
authorised by the SABC.
[23] In the light of
the conclusion reached above with regard to the issue of authority,
the appellant’s appeal must be dealt
with as an unopposed
appeal. However, the fact that the appeal is unopposed does not mean
that it must necessarily succeed. It
remains for the appellant to
show on the merits that the court below erred and that the appeal
should be allowed. In considering
the matter, we shall disabuse our
minds of the contents of the heads of argument filed by Maserumule
Inc and the oral argument
advanced by Mr Maserumule. In those
circumstances we uphold the point taken by the appellant that the
opposition of his appeal
has not been shown to be authorised and that
Maserumule Inc have no authority to represent the SABC in this
matter.
Incomplete Record
[24] The
transcription of the proceedings before the commissioner is
incomplete. Apart from a first page of introductions, it begins
towards the end of the evidence in chief of the appellant and
continues with his cross-examination and re-examination. Omitted
is
the evidence of the two witnesses for the SABC (Messrs Richter and
Van Tonder) as also most of the appellant’s evidence
in chief.
However, we do have a reasonably full and detailed summary of the
missing evidence in the commissioner’s award.
[25] The proceedings
in the Labour Court were launched in early 2003 and copies of the
founding papers were served on all three
respondents. The incomplete
record of the arbitration proceedings was filed at the Labour Court,
and served on all three respondents,
on or soon after 11 July 2003.
The SABC’s attorneys, Messrs Maserumule Inc, initially objected
to the incompleteness by
way of a letter dated 18 September 2003.
The attorneys also complained that “the record does not contain
a bundle of documents
relied upon by the parties during the
arbitration”. This latter defect must have been rectified at
some later stage because
we do indeed have the requisite bundle.
Notwithstanding the letter of 18 September 2003, the SABC was able to
complete its answering
affidavit eleven days later, on 29 September
2003. Nowhere in that affidavit does the deponent, Mr. Weber, refer
to, or complain
about, the incompleteness of the transcription. In
two places Mr. Weber complains about the missing bundle of documents.
The
first, at par. 12, is in the context of the appellant’s
remuneration level at the relevant time. That was later rectified
by
the appellant who annexed a copy of a payslip to his replying
affidavit (at par. 7). The second, at par. 25, was in the context
of
the collective agreement. The SABC rectified this by annexing a copy
of the agreement.
[26] On or soon
after 14 November 2003 the appellant filed a supplementary affidavit
stating:
“
3. I hereby confirm that
the transcripts submitted to the Labour Court on this matter were
incomplete.
4. I further confirm that this
was observed upon my receipt of transcript from Bloemfontein CCMA and
when enquiring with them, I
was informed by Free State Transcribers
CC that there was a fault with their mechanical recording done on the
matter and they could
therefore not transcribe the whole contents of
what transpired at the CCMA hearing.”
This affidavit was
served on the CCMA and on the SABC’s attorneys, but it would
seem not on the commissioner. The appellant’s
replying
affidavit followed later.
[27] In terms of the
decisions of this Court, the appellant’s explanation for the
incomplete record (at par. 4 of his supplementary
affidavit) was
insufficient. See
DEPARTMENT OF JUSTICE v HARTZENBERG
2002 (1) SA 103
(LAC);
JDG TRADING (PTY) LTD t/a RUSSELLS v
WHITCHER NO AND OTHERS
(2001) 22 ILJ 648 (LAC);
LIFECARE
SPECIAL HEALTH SERVICES (PTY) LTD t/a EKUHLENGENI CARE CENTRE v CCMA
& OTHERS
(2003) 24 ILJ 931 (LAC);
FOUNTAS v BROLAZ
PROJECTS (PTY) LTD AND OTHERS
(LAC, judgment dated 17 May
2006, as yet unreported). In the ordinary course the appellant
should first have endeavoured to establish,
by way of further
investigation and affidavits, whether or not the missing part was
irretrievably lost. If not, then it could
have been transcribed. If
irretrievably lost, then the parties and the commissioner should have
endeavoured to reconstruct the
missing part. The appellant has not
initiated any of these steps. In the ordinary course, therefore, the
Labour Court should
have declined to hear the matter on its merits,
and should either have dismissed the application or struck it from
the roll (with
a view to obtaining a full record).
[28] There are,
however, circumstances that take this case out of the ordinary course
in my view. I have already mentioned that
although the SABC
complained by letter about the incomplete record, it did not pursue
that complaint in its answering affidavit.
The first and second
respondents (the commissioner and the CCMA respectively) chose not to
oppose the application, as is common
practice. A manifestly
incomplete record was served on them, as a cursory glance would have
revealed, and the inadequacy was drawn
to the CCMA’s attention.
However, they chose not to oppose on even the narrow basis that the
truncated record would hinder
or prevent a just outcome. There is
nothing in the judgment of Revelas J, at first instance, to suggest
that anybody made a point
of the incomplete record before her. In
this Court, on appeal, neither the appellant’s heads of
argument, nor (for what
it is now worth) the SABC’s heads touch
upon the question. During argument before us both the appellant and
(again for what
it is now worth) Mr. Maserumule indicated that they
were content for the appeal to be decided on the incomplete record.
[29] The appellant
was dismissed around the end of September 1999. This appeal was
heard virtually seven years later. The dispute
came before this
Court in about 2002 in another form, when it was held that the
appellant was entitled to an arbitration. That
arbitration was held
in the last quarter of 2002 and the commissioner’s award is
dated 13 December 2002. Review proceedings
followed in the Labour
Court, whence the present appeal to this Court. Finality in the
litigation beckons strongly and with it
a corresponding finality in
the respective positions of the appellant and the SABC.
[30] I do not
understand the decided cases, cited earlier, to preclude this Court
from determining an appeal on less than a complete
record in an
appropriate and exceptional case, provided the Court feels able to do
so on the material before it. I consider that
this is such a case.
In addition to all the factors that I have mentioned, we have a full
and detailed summary (in the award)
of the evidence of all three
witnesses at the arbitration. While less than ideal, I think that
summary plus the appellant’s
cross-examination, which was
transcribed in full, is adequate for our purposes. As will appear,
the appellant’s admissions
under cross-examination were not
without material significance. Furthermore, the central issues
before us fall within a relatively
narrow compass. Those issues,
together with such subsidiary issues as arise, can in my view be
justly resolved on the material
before us. I am satisfied that it is
the course we should follow in this matter.
The
merits of the appeal
[31] The appellant
started working for the third respondent on 1 June 1989 as junior
production assistant. During 1995 a position
for Radio Production
Assistant in Bloemfontein was advertised. The requirements were
stated as follows in the advertisement:
Matric,
Sesotho- and
English-speaking,
Driver’s
licence,
Ability to work
under pressure,
Be prepared to work
shifts and long hours,
Will take full
responsibility for the studios. The successful applicant will carry
out the normal studio production functions.
[32] Appellant’s application was successful and he
was appointed to the position of radio producer assistant in
Bloemfontein.
Appellant apparently received a letter of appointment
with annexures. There is no letter of appointment or contract in the
papers
before us. There was no other written contract of employment.
At some stage after he commenced appellant worked night shifts.
The
following transpired at the arbitration hearing (vol 4 p 310):
"In
1995, on the strength of the advertisement, you phoned Mr, it is your
own version now, and you said that you are interested
in taking up
the job as advertised, correct? – Correct.
You were
then appointed, or transferred, correct? – Correct.
You were,
you were happy having read the contents of the advertisement that you
were required to work long hours under pressure
and going to work
shifts, correct? – Yes.
You were,
you did work the shifts as required? – Yes, because I was
alone. It was ... (inaudible).
You did
work the shifts as required in terms of the advertisement? –
Yes.
Right, for
the first time in 19, for the first time in 19, in May 1999 you
formalised your dispute and you indicated to management
that you were
no longer going to work this, let us call it night duty, because it
is affecting your health? – Correct.
And it was
disturbing you family? – Correct.
You were
told that it was part of your conditions of employment to work these
shifts? – Contract of service.
Servicing?
– Yes.
You were
scheduled to do the shifts? You were scheduled and I refer to page
42A and 42B, the February and the September ones? --
Yes
Where in
February you worked a cycle of 5 weeks and in September you worked a
cycle of 4 weeks and you worked these hours that you
were complaining
about once every 4
th
or 5
th
week then, correct?
– Yes."
On
1 March 1998 a new Time Management System came into effect. It
embodied an agreement between the SABC and the "Federation"
(apparently between Bemawu and Mwasa) (vol 2 p 174) to work "Overtime
and a Shift allowance/Time management election".
Under the
heading “Unsociable hours” the agreement defined
unsociable hours as being:
"the hours from 17h00 to
07h00 on a week day and from 17h00 on a Friday to 07h00 on a Monday."
The agreement went
on to provide as follows:
"Every employee working
these hours will receive a 10 minute credit for every hour or part
of an hour worked.
Management will have the right
to either reduce the working hours to compensate for the credits
earned or pay out the credits.
The credits will be revisited
at the end of May 1998 after the impact of the credits have been
determined at which point it
will be the subject of further
negotiations.
Any personnel member currently
receiving a shift allowance may elect to continue with it or elect
to come into the new system.
Meal intervals will be
scheduled as per the Act."
[33] Appellant did not sign a document electing either
to continue with the shift allowance scheme or to participate in the
new
unsociable hours system, although in practice he seems to have
accepted one of the choices, namely to receive an overtime allowance.
[34] A grievance meeting between the Broadcasting,
Electronic Media and Allied Workers Union ("the union") and
the SABC
was held on 6 July 1999. At that meeting the union
inter
alia
complained that people who worked unsociable hours were not
being paid. Management promised to investigate and make payouts.
[35] On 23 July 1999
appellant wrote a letter to the SABC:
“I
will like to bring to your attention that I have decided to withdraw
myself from working unsociable hours in Makumane/Matshohlo
with
effect from the 02 August 1999.
Secondly I
wish to bring to your attention that on the [illegible]- 29 July '99
I will be taking my days off. Reasons for this being
(1) reluctance
of management to solve a problem of unsociable hours by the Act. (2)
Refusal of Prod Asst Supervisor (Tswene) to
give me my days off when
I need them. Maybe I must bring to your attention that anyone working
between 23:00-06:00 he/she is doing
so risking his/her health and
[illegible] is hazard according to the Employment Act. I hereby again
hope you will find this in
order. Thank you. (signed) Papane"
[36] A new three-person shift roster was introduced with
effect from 1 August 1999 in an endeavour to make fair arrangements
for
the affected production staff. (At the time appellant and one
other employee were working shifts.) With effect from 1 September
1999 Van Tonder, the manager of operation facilities, Free State,
once again revised the shift roster and implemented a four-person
shift roster. This new roster meant that an employee would work one
week morning shift, one week day shift, one week evening shift
and
one week programmed day shift. (This appears from the arbitration
award, summarising the evidence of Van Tonder (which is not
in the
papers before the court)).
[37] On 3 September 1999 the appellant wrote a letter in
which he repeated his request to be relieved from working night duty
(vol
2 p 17). The copy in the papers is illegible at places:
"Israel
Papane (Prod Ass)
03 Sept
'99
Night
Shift
I arrived
late yesterday on the [illegible] Sept '99. I arrived at 04:00am
instead of [illegible] am. I was trying to help to
work night shift
hence I have requested [illegible] my letter of the 27 July '99 to be
[illegible]-ved from night duties. I believe
I stand to loose
nothing by not working night [illegible]. I would like to reiterate
my statement in the letter of 27 July '99.
It is not my intention to
disturb the production but [illegible] I can't take the risk anymore.
Let me [illegible] relieved from
night duties immediately.
Your
co-operation in this regard is welcome.
Prod Asst
I S Papane
(002242)"
In
this letter he thus stated that he stood to loose nothing by not
working night duties, and that he could not take the risk anymore,
asking that he be relieved from night duties immediately.
[38] Management
responded in a letter dated 7 September 1999:
The
body of the letter reads:
"I am
concerned about your arguments raised in the above-mentioned letter
about you working night shifts. I would like to bring
to your
attention that working night shift, in this instance, is not your
choice or right but it is part of your service contract.
It is an
inherent requirement of the job.
Refusal to
work this shift is tantamount to breach of service contract and will,
if you pursue it, lead to you being charged with:
Non-compliance with duties of
the service contract
Dereliction of duties.
These
charges are very serious and might lead to your dismissal. I would,
therefore, advise you to seriously consider your decision
or
understanding of the NIGHT SHIFT; because as a production assistant
you are not employed to work an 08h00 to 16h30 shift, but
to work
differing or rotating shifts, as is the case now. This is not subject
to negotiations but it is part of your service contract.
Your
co-operation and attendance will be highly valued.”
[39] Appellant responded in a letter dated 8 September
1999 stating that working night shifts was not included in his
original contract
with the SABC, and also not mentioned in his letter
of appointment. He stated that he was trying to help. He referred to
section
17(c) of the Basic Conditions of Employment Act 75 of 1997
(“BCEA”) and stated that coercion in this situation was
constructive dismissal. In his evidence at the arbitration hearing he
stated that when he worked night duty, from 1997, he was trying
to
help out.
[40] Appellant refused to work the scheduled shifts on
13, 14 and 15 September 1999 but instead reported for and worked day
shifts
only. A disciplinary hearing was held on 22 September 1999.
The appellant was charged with non-compliance with duties of his
service
contract refusing to work shift or unsociable hours, while
knowing that the job category of a production assistant is a shift
working
category. Appellant did not dispute that he had not worked
the scheduled shifts on 13, 14 and 15 September 1999. He said that he
was only willing to work the normal day shift (08h00-16h00).
[41] As a result of the finding at the disciplinary
hearing, appellant was dismissed by way of a letter dated 30
September 1999.
Appellant noted an internal appeal. The appeal
panel upheld the findings and sanction of the disciplinary hearing.
The arbitration
hearing
[42] The record of the arbitration proceedings put
before us was incomplete, but the appellant agreed that the appeal be
argued
on the partial record as it stood. We have accordingly to
rely on the Commissioner's summary of the evidence of messrs Richter,
Van Tonder and the appellant and on so much of the evidence of the
appellant as was transcribed.
[43] Richter, at the time of the arbitration the
regional manager of the SABC Free State, testified that an inherent
requirement
of the job which appellant had was to work long and
irregular hours according to operational needs of a 24 hour radio
service.
Van Tonder, the operational manager, testified that it was
trite practice or policy for anchor journalists to work on a shift
rotation
system.
[44] Appellant testified that he worked night duty from
1997, but was only trying to help out. He only started complaining
about
the shifts in May 1999. He agreed that he received credits for
this shift work, although he was only paid in March 2000.
[45] The commissioner found that appellant acknowledged
that he received the credits. Appellant was credited with excess
hours worked
to be paid out for the months of January, February,
April, May, June, July, August, September 1999. Each of those time
reconciliation
sheets contains an entry “Credits i.r.o.
unsociable hours” and “Time to be paid out”.
[46] The commissioner found the dismissal of the
appellant procedurally and substantively fair.
Appellant's
contentions
[47] Appellant's
contentions before us can be set out as follows:
(i) Contrary to the finding of the commissioner and the
court
a quo
, appellant falls under the provisions of the BCEA.
Section 17 BCEA prohibits night shift work unless there is agreement.
(ii) The BCEA, 75 of 1997, especially s 17, allowing
night work, does not operate retrospectively. Appellant started
working during
about 1995 in the position he was dismissed from. The
BCEA came into operation on 1 December 1998 when appellant was
already working
for the SABC.
(iii) Appellant's health
deteriorated because of night shift work.
(iv) There was no written contract of employment and his
letter of appointment, together with its annexures, does not suffice
to
compel him to work night shifts.
(v) Appellant never signed a document electing either to
continue with the current shift allowance scheme or to participate in
the
unsociable hours system.
(vi) By working the unsociable hours, appellant was
just helping out; not because he was legally or contractually bound
to do so.
The BCEA
[48] I deal firstly with the contentions relating to the
BCEA. In its answering affidavit the SABC alleged that the appellant
was
excluded from the operation of the BCEA by virtue of the fact
that his earnings exceeded the amount referred to as the maximum
under the BCEA. The appellant denied this, and said that he was
covered by the BCEA, and referred to a salary advice dated 27 August
1999. The commissioner stated that the appellant was a senior
employee earning more than R89 500 per annum. The commissioner says
that the appellant was a member in good standing of BEMAWU “as
he was still paying his monthly levies”. It is not absolutely
clear that the commissioner actually held that appellant's
remuneration exceeded the statutory limit, although this may have
been
the finding. Possibly the commissioner had a salary slip of
appellant before him indicating earnings in excess of R89 500.
However,
the only primary evidence of Appellant’s income in the
papers before the Court is a salary advice dated 27 August 1999,
reflecting
total monthly earnings of R6 521 (vol 1 p 78). Multiplied
by 13 this gives an annual income of R84 773. Further, the exclusion
from the BCEA is an exclusion which the third respondent would have
to prove. On these papers the third respondent has failed to
establish any exclusion. The contract falls under the BCEA.
[49] As to the retrospectivity of s 17 BCEA, s 17 does
not stipulate that an agreement to work night shifts cannot pre-date
the
statute. It is unlikely that the legislature intended that shift
workers had to agree all over again after the BCEA came into
operation;
that would have thrown whole industries (e.g. the security
industry) into chaos. Where employees had agreed, pre-statute, to
work
at night, employers had to comply with the other requirements of
s 17 (which the SABC tried to do). That is a prospective application
of the statute.
[50] In his defence appellant did not rely on the
absence of transportation (s 17(2)(b)).
Health
[51] As to the issue of health (s 17(3)), appellant did
not rely on the medical certificate which forms part of the papers
(dated
4 August 1999), but argued that his general health was
negatively affected by the night work. There was no evidence to
substantiate
such claim. In so far as appellant suggested that once
he had indicated that night work was having an adverse effect on him,
the
SABC should have had him examined medically, appellant had to do
more than produce one medical certificate, covering a couple of
days
only. Even if appellant had been medically examined, and found
medically unfit, he might have been boarded, or given another
position, yet it does not follow that he would have retained his
existing job but without shift work.
Did appellant agree
to work unsociable hours?
[52] Regarding agreement, the first question is whether
the trade union agreed to this on behalf of appellant. This court
held in
SABC v CCMA, Mkhosana NO, Papane and BEMAWU
, Case JA
29/00, decided on 11 July 2002, that the appellant was not a member
of the Broadcasting, Electronic Media and Allied Workers
Union
("BEMAWU") from March 1999 until his dismissal from the
SABC in September 1999. In argument before us appellant
pointed out
that the “Time Management Principles” referred to an
agreement between the SABC and “the Federation”.
Before
this court it has not been established that appellant was a member of
BEMAWU. If the appellant was not a member of the trade
union at the
relevant time, he would not be bound by any collective agreement
concluded by it.
[53] Section 17(2) BCEA
provides:
“(2)
An employer may only require or permit an employee to perform night
work, if so agreed, and if –
the employee is compensated by
the payment of an allowance, which may be a shift allowance, or by
a reduction of working hours;
and
transportation is available
between the employee’s place of residence and the workplace
at the commencement and conclusion
of the employee’s shift.”
[54] The remaining question is whether appellant
personally agreed to do the night work as required in the
introductory part of
s 17(2). An agreement in writing, as is for
instance required in s 16(6)(b) of the BCEA, is not required. On the
wording of s 17(2),
even an implied agreement will suffice. In my
view the existence of such agreement is apparent from the following:
(i) The advertisement for the position warned
applicants: "be prepared to work shifts and long hours".
Appellant was not
a novice – he had been working for the SABC
since 1989. He must have known what this meant. At the arbitration
hearing the
following transpired (vol 3 p 259):
"Now,
since 1997, no, since 1995 when you were transferred here? –
Yes?
You worked
the shift in terms of a shift roster? – Yes.
So, from
95 to 97 you never, to 99, you never complained. You started
complaining in May 1999? – From?
From 95,
when was this, when, when were you transferred? – 95.
In 95.
So, from
95 to 97 I can not find any documentation where you were unhappy
about working these shifts? – Because my shift was
starting at
ten o'clock when I was here in 1995. Then it will have to move until
half past six in the afternoon.
Okay. –
Yes.
But, we
agree, sorry, I do not want to belabour the point. – I did not
complain.
But, we
agree that you started complaining in May 19, heavily complaining in
19, in May 1999? – Yes.
You agree
to that? Before that no hassles. Now, how come Mr, Mr Papane, if
you have a look at page 42 and 42B. 42A and 42B?
Commissioner
:
It is a shift roster?
Mr
Weber
: That is it sir. And if you can recall Mr Papane, if you
can recall. Let me just get the document, that is where you
testified?
If you can recall, after you have closed your evidence in
chief, the Commissioner asked you this question about pages 30, 42A
and 42B and you explained it very nicely to us. 42A is your shift
roster in 1999? – February 1999.
Correct? –
Yes.
And you
explained to the Commissioner that, that was a five week cycle that
you worked those shifts. Week one, you worked from
three o'clock in
the morning to eleven o'clock in the morning? – That is right.
Week two,
you worked from five o'clock in the afternoon to eight o'clock in the
evening. Week three, that is what you told the
Commissioner, I wrote
it down. – No, week two is from three o'clock in the morning.
No, well
Mr Commissioner, I do not know, that is what Mr, and then week three,
eight o'clock to 16h30. – Yes.
Week four,
twelve o'clock in the afternoon to eight o'clock in the evening and
week five, twelve o'clock in the afternoon to eight
o'clock in the
evening? – Yes sir.
All right.
But, you worked the morning shift, these ungodly hours, the three
o'clock hours. Why did you not complain in February?
– The
reason is simple Andre, because Fred has made a promise with me and
he requested that I must give him a chance so that
he should appoint
a production manager. At the present moment he is the only regional
manager who is operating across the board
and he can not afford
everything."
(ii) Appellant admitted at the arbitration hearing that
he knew (from the advertisement) that the Bloemfontein job entailed
working
night shifts (vol 3 p 248 line 24 – 249 line 15).
Appellant did actually work shifts for a period of years – as
he
admitted – before he started complaining.
(iii) When appellant complained, in his letter dated 23
July 1999, his complaints arose from the way the system worked,
especially
as it affected him. His complaint was not that he was
under no contractual obligation to work shifts at all.
(iv) Appellant received benefits for working shifts. He
was credited with excess hours worked paid out for the months of
January,
February, April, May, June, July August and September 1999
(see the Time Reconciliation sheets, vol 2 pp 156-163). For an
extended
period appellant thus received compensation. The eventual
payment came later, in March-April the following year. It was not
appellant's
case that he was not entitled to benefits. His complaint
was that in this and other respects he was not being treated
properly.
(v) From the Appellant’s correspondence and
evidence at the arbitration hearing it is apparent that he initially
had no objection
to doing night work, and in fact did such night
work. Subsequently he changed his stance, when he was not receiving
the money and
when he felt that he was being unfairly treated. He
was warned of the possible repercussions by the SABC's letter in
clear terms.
He persisted. There is no suggestion that he recanted at
the disciplinary enquiry, and he certainly has not recanted since
then
(from arbitration up to this court). As I have said he knew
that night shift work was required in his position, and he did in
fact perform such night shift work, and at least by conduct agreed to
do so. The provisions of section 17 BCEA requiring an agreement
were
complied with.
(vi) Appellant's contention that he was just "helping
out" is not convincing in the light of the evidence: he did the
night shift work over a prolonged period; he accepted the monetary
credits for overtime; he only started complaining when he felt
the
system was not being fairly implemented.
(vii) The evidence that appellant agreed to work shifts,
including night work, at Bloemfontein is cogent and compelling. The
commissioner
cannot be faulted for concluding that appellant so
agreed. It follows from all this, therefore, that the appellant was
indeed
guilty of a dereliction of his duties, in that he refused to
work night shifts deliberately and without good reason and despite
being warned of the consequences.
Procedural fairness
[55] As to procedural fairness, appellant’s
complaints related to the presence of Mr Paul Tati on the
disciplinary panel.
In his heads of argument in this court appellant
says at the disciplinary hearing he did not want to disclose the true
reason as
one of the reasons for the recusal of Mr Paul Tati because
he feared that as a result of such allegation he would later be
forced
to bargain so as to keep his sources anonymous or face civil
action. He advanced a reason before us for his request for recusal.
We chose not to record that. It is sufficient to say that one cannot
fault the disciplinary hearing. As, according to the appellant,
the
true reason for the request for recusal was not raised at the
application before the disciplinary hearing, no sufficient basis
was
made out before that panel for the request for recusal of Mr Tati.
There is no merit in the allegation of procedural unfairness.
The sanction
[56] In his founding affidavit appellant says that the
commissioner erred in finding that the gravity of the offence
outweighed
his personal circumstances to the extent that he should be
dismissed. Appellant says he was employed by the SABC for 10 years
and
rendered perfect service. He says the commissioner erred in not
finding that the penalty meted out by the disciplinary hearing was
severe having regard to his 10 year long good standing service as
well as his family responsibility and the fact that he had a
clean
disciplinary record.
[57] Appellant refuses to do the job for which he was
employed. He is only prepared to do part of the job, but excluding a
significant
and material obligation, namely to work night shifts.
The sanction of dismissal appears unavoidable. We are unable to find
any
basis to interfere with the finding of the Commissioner that the
sanction of dismissal was fair, particularly in the light of
Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA and
Others
[2006] 11 BLLR 1021
(SCA)
at pars 37-40).
Costs
[58] The court
a quo
ordered the appellant to pay
the costs, save certain costs which had been reserved on 30 July
2004. There is no reason to interfere
with the exercise of the
discretion of the court
a quo
. In this court the appeal has
been treated as unopposed, and no order as to costs should be made.
Order
[59] In the result the
appeal is dismissed.
________________
Kruger
AJA
I agree
_________________
Comrie
AJA
Appearance for
appellant: In person
Appearance for third
respondent: No authorised
appearance
Date of
hearing: 5 September 2006
Date of
judgment: 20 March 2007