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[2007] ZALCJHB 55
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Transport And Allied Workers Union of South Africa v South African Road Passenger Bargaining Council and Others (JR144/04) [2007] ZALCJHB 55 (5 February 2007)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE NO: JR 144 / 04
IN
THE MATTER BETWEEN:
TRANSPORT
AND ALLIED WORKERS
UNION
OF SOUTH AFRICA
APPLICANT
AND
SOUTH
AFRICAN ROAD PASSENGER
BARGAINING
COUNCIL
1ST
RESPONDENT
TOKISO
DISPUTE SETTLEMENT (PTY) LTD
(INCORPORATING
AMMSA)
2NDRESPONDENT
PROF.
M. MTHOMBENI N.O.
3RD
RESPONDENT
UNITRANS
PASSENGER (PTY) LTD
T/A
GREYHOUND COACH LINES
4TH
RESPONDENT
JUDGMENT
1.
This is a review application brought by the applicant union on behalf
of its members following an arbitration hearing in which
the
arbitrator found that the drivers who were employed as independent
contractors were not entitled to be remunerated for compulsory
rest
periods.
2.
The fourth respondent employed a number of passenger bus cabin crew
members. Some of these members were employed as independent
contractors. Those employed as independent contractors were not
remunerated for compulsory rest periods they spent in transit on
long
distance passenger buses. In April 2002, the fourth respondent
changed the status of the independent contractors to that of
permanent employees. The fourth respondent signed an agreement with
the majority union in which it was agreed that the employees
would
not be paid for the compulsory rest period. The applicant filed a
dispute regarding the payment for rest periods which resulted
in the
arbitration hearing. At the end of the hearing, the arbitrator issued
an award which is now the subject of the review.
3.
The grounds of review raised by the applicant appear in paragraph 8.2
of the founding affidavit filed by Zack Mangke. The applicant
alleged
that the first and or second respondent erred in the following
respects:
a) Made
findings without a rational objective bases justifying the connection
made between the material properly
available in the arbitration
proceedings and the conclusion eventually arrived at.
b)
Misconstrued oral and documentary evidence and ignored and misapplied
legal principles to the extent that is
inappropriate and
unreasonable.
c)
Committed misconduct in relation to arbitration duties.
d)
Exceeded their powers.
4.
Besides the bold allegations made by the applicant, it failed to set
out the basis for these allegations.
5.
The first, second and third respondents were requested to file a
record of the arbitration hearing. The second and third respondents
filed the arbitration notes and indicated that no mechanical
recordings were made. After the court had made an order that the
parties reconstruct the record, the applicant amended the notice of
motion to allege a further ground of review to the effect that
the
arbitrator committed a gross irregularity in failing to keep a record
of the proceedings.
6.
The parties filed Heads of Argument. The applicant’s Heads of
Arguments dealt with only one review ground. The basis of
which being
that the arbitrator failed to keep the record of the proceedings.
7.
The applicant submitted that the dispute has to be remitted to the
first and second respondent for arbitration de novo as the
record is
not available and the court cannot determine the issues. I should
point out that when the parties attempted to reconstruct
the record,
none of them had notes of the previous hearing. It was further
submitted that the arbitrator’s notes is not a
record.
8.
It appears from the founding affidavit and from the submissions made
on behalf of the applicant that the main issue to be determined
from
the record is whether evidence was led to the effect that crew
members were required to do work during rest periods.
9.
I first wish to deal with the question of the record. It is common
cause that no mechanical recording was made by the arbitrator.
In
paragraph 3 of the fourth respondent’s answering affidavit, Mr.
Fanie Van der Walt testified that :
“…
However, I
am advised that it is necessary to provide this Honourable Court with
an overview of the proceedings at the arbitration
as no record of the
oral evidence presented during the proceedings is available. The
proceedings were not mechanically recorded.
I am in a position to do
so as I attended all the proceedings unlike Mangke who did not attend
any of the proceedings.”
10.
Paragraph 7 of Mr. Mangke’s founding affidavit gives the
impression that the proceedings were mechanically recorded when
in
fact it was not. This is understandable as Mr. Mangke did not attend
any of the arbitration hearings.
11.
Mr. Grant Fleetwood filed an affidavit opposing the application to
amend brought by the applicant.
12.
In paragraph 5.1 to 5.3 of his affidavit, he stated that:
“
5.1 As indicated
in the fourth respondent’s affidavit in the review application,
the first day of proceedings was given over
to mediation.
5.2 On the commencement
of the second day of proceedings, and I note that I attended all the
days of the proceedings, unlike Lehong
who did not attend at all, the
third respondent (the arbitrator) informed the parties that it was
the standard practice of the
second respondent (Tokiso) not to
mechanically record proceedings and if the parties wished to have
such a recording, they would
have to make their own arrangements.
5.3 After some
discussion, both parties conveyed to the arbitrator their agreement
that the matter should proceed without a mechanical
recording.”
13.
The allegations made by Mr. Fleetwood have not been challenged by the
applicant. Mr. Wilke who appeared on behalf of the applicant
submitted that if the agreement on the recording was made on the
second day, the applicant would accept it. He however argued that
this was not a waiver of the recordings as the notes did not
constitute a record.
14.
If the parties had been advised before the commencement of the
arbitration hearing that there would be no mechanical recordings
and
given an opportunity to make their own arrangements, it would be
unfair to criticize the arbitrator for not mechanically recording
the
proceedings. In the present case, the parties agreed to proceed
without the proceedings being mechanically recorded and did
not make
their own arrangements.
15.
I do not agree that there was no record of the proceedings. It may
well be argued that it was not accurate. The deponent to
the founding
affidavit did not attend any of the proceedings and cannot positively
testify on what was said during the arbitration.
Mr. Lehong who filed
the affidavit for the amendment also did not attend any of the
proceedings. Their allegations are not based
on facts within their
personal knowledge.
16.
In Lifecare Special Health Services (Pty) Ltd t/a Ekuhlengeni Care
Centre v CCMA & Others
(2005) 5 BLLR 416
(LAC), the court had to
deal with the question of the absence of the record and the
reconstruction thereof. Comrie AJA stated that
the commissioners are
encouraged to make use of electronic recording equipment wherever
possible.
17.
At page 419 D-F Comrie AJA stated:
“
According to the
rules then applicable, the first respondent was obliged to keep a
record of any evidence given in an arbitration
hearing, and of any
award or ruling made by a commissioner. The rules provided “the
record may be kept as handwritten notes
or an electronic recording.”
Since the commissioner made use of an electronic recording, the
desirable form, the probable
inference is that he chose that form as
the “official “ record, and that his handwritten notes
were no more than bench
notes kept for the tribunal’s
convenience, as is the invariable practice among magistrates and
judges. Though we have no
definite statement to that effect from the
commissioner himself, the parties appear to be in substantial
agreement that the electronic
recording constituted the record. I
shall proceed upon that basis.”
18.
The position in the Lifecare matter can be distinguished from the
present matter in that the mechanical recording had been made.
The
court correctly came to the conclusion that it was the mechanical
recording that was regarded as the official record.
19.
In the present case, the parties were left in no doubt that there
would be no mechanical recording. The only recording is the
hand
written notes. The commissioner recorded the evidence of each of the
witnesses. In the light of the fact that the parties
chose not to
make their own arrangements for the mechanical recording, I assume
that the arbitrator regarded his hand written notes
not only as the
bench notes but as the record. Accordingly I reject that these notes
do not constitute a record.
20.
The issue to be determined from the record is whether there was
evidence that crew members were required to work during rest
periods.
The commissioner dealt with this point and decided it in favour of
the fourth respondent. In this regard, the arbitrator
found that :
“
I am convinced,
that through the negotiations concerning payments for rest periods,
the employer had consistently maintained its
position not pay the new
drivers for compulsory rest periods. I accept that it is
inconceivable for the employer to abandon its
position in this regard
and agree to better terms and conditions of employment with a
minority union. I also find it unlikely that
an agreement of this
nature could be concluded telephonically.”
21.
The applicant does not appear to have given any evidence to the
effect that the crew members were required to perform certain
duties
during the rest periods. This is clear from the Heads of Argument
submitted to the arbitrator. In paragraph 2.8.2 of the
said Heads of
Argument, the following was submitted in relation to the evidence of
Gary Tala :
“
He testified that
to show that drivers are on duty during compulsory rest period Mr.
Adam Carolous was disciplined for leaving the
coach when he was not
driving. This shows that for all intents and purposes a resting
driver is on duty and that such rest period
is part of the normal
hours of work and that such has to be remunerated.”
22.
It is my view that if there was evidence that the crew members were
required to perform certain duties or did perform such duties,
this
would have appeared in the Heads of Argument. All that was done was
to rely on the inference from the act of disciplining
Mr. Carolous.
That is not sufficient to show that the crew was on duty during the
resting periods.
23.
Besides what I have indicated, the applicants have not set out why
the award is irrational or what is irrational in the commissioner’s
findings. The award has not been attacked by the applicant. Can the
applicant challenge the award only on the basis of the absence
of the
record? In my judgment before the dispute can be remitted for
arbitration de novo for the absence of the record there must
first be
a real challenge on the award based on factual allegations which
allegations could only be determined from the record.
In the absence
of the attack on the award, the award cannot be challenged only on
the absence of the record. There has to be a
real issue placed before
the court.
24.
I was referred to a judgment in Uee-Dantex Explosives (Pty) Ltd
v Maseko & Others (2001) 22 ILJ 1905 (LC) for the
proposition
that the absence of the record is a ground for setting aside of an
arbitration award. The Uee Dantex case is distinguishable
from the
present one. Firstly factual allegations were made by the applicant
regarding the conduct of the commissioner. This prompted
the court at
paragraph 17 of the judgment to comment as follows:
“
There is a
material dispute of fact going to the very heart of this review
application which could only be resolved by looking at
the record of
the arbitration proceedings. Disputes of fact in application
proceedings generally result in the courts either dismissing
the
application or referring the disputes to oral evidence.”
25.
No such disputes of facts are set out in the present matter.
Secondly, in the Uee Dantex case no record of any form was submitted.
In the present matter, the only form of record was the handwritten
notes as no mechanical recording was made. The court was not
confronted with the argument relating only to the absence of the
record as in the present case.
26.
The applicant had not alleged which evidence was ignored or
misconstrued by the arbitrator. There is also no allegation made
by
the applicant regarding the manner in which it was alleged, the
arbitrator exceeded his powers.
27.
After considering the matter, I am satisfied that the applicant is
simply not satisfied with the award. There is no basis for
the review
on the grounds raised. It is my view that this review was frivolous
as no factual basis was set out right at the time
the application was
made. Accordingly, I find that the costs should follow the results.
28.
The following order is made:
(a) The application
for the review is dismissed.
(b) The applicant
is ordered to pay the costs.
_______________
NGCAMU
AJ
Date
of Hearing:
25 October 2006
Date
of Judgment:
05 February 2007
For
the Applicant:
Adv. F. Wilke instructed by Medufi Lehong Attorneys
For
the Fourth Respondent:
Adv. C. Orr instructed
by Bowman Gilfillan Inc.