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[2008] ZALCJHB 15
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Solidarity obo Botha v Commission for Conciliation Mediation And Arbitration and Others (JR1281/06) [2008] ZALCJHB 15 (23 October 2008)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE
NO: JR 1281/06
In
the matter between:
SOLIDARITY
obo JF
BOTHA
Applicant
and
COMMISSION
FOR CONCILIATION MEDIATION
First
Respondent
AND
ARBITRATION
COMMISSIONER
MPHO PHETLA
N.O
Second
Respondent
DDT
MECHANISED MINING SERVICES
(
PTY
)
LTD
Third
Respondent
JUDGMENT
Molahlehi J
Introduction
[1]
This is an application in terms of which
the applicant, Solidarity on behalf of its member, Mr Botha (the
employee) seeks to review
and set aside the award issued by the
second respondent (the commissioner) under case number NW5963-05 on
the 12 April 2006. In
terms of the arbitration award the commissioner
accepted the version of the respondent, namely that the employee had
not been dismissed
and accordingly dismissed his unfair dismissal
claim.
Background facts
[2]
It is common cause that the employee was
prior to his dismissal employed as shift “boss”. The
parties at the arbitration
hearing presented two conflicting
versions. The employee’s version was that he was dismissed
whilst the respondent on the
other hand contended that he was not. As
indicated earlier the commissioner accepted the version of the
respondent and rejected
that of the employee.
[3]
Mr Viljoen, the technical manager, in
testifying on behalf of the respondent during the arbitration hearing
stated that he assigned
the employee to work with him because of the
tension that seemingly existed between him (the employee) and his
manager. This was
a temporary posting pending an alternative
placement being available for the employee.
[4]
During the period of working with Mr
Viljoen, the employee injured his back and as a result of this
incident it was decided to transfer
him to the Marula area. The
policy of the respondent was that in the circumstances of employee’s
case he had to undergo an
exit medical examination before the
transfer. It would further seem that the Marula area falls under the
Impala mine. As part of
the transfer and medical testing a letter was
addressed to Impala mine hospital which read as follows:
“
Please
let J.F Botha ID No: [……..] undergo an exit medical
examination on your shaft. His contract has been ended
with DDT.
[5]
The respondent’s case was that the
above letter was not addressed to the employee but to the hospital
and that the employee
intercepted the letter and used its contents to
suit himself. The intention of the letter was to ensure that the
employee receive
medical examination at the Impala mine hospital.
This was also according to the respondent a common practice in the
mining industry
and in particular at Impala that the mine at which an
employee is stationed does the medical examination before the
employee leaves
that mine. The employee was handed the letter to hand
to the hospital personnel before attending the medical examination.
[6]
It was also the case of the respondent that
the employee still attended the store where was posted, even after
receipt of the letter
which he sort to rely on as a basis for his
claim that he was dismissed. Between the periods – 9 September
2005 when the
employee received the letter and the 3
rd
October 2005 when he received the notice of the disciplinary hearing
the employee had not told anybody that they should not expect
him at
the store because he had been dismissed. The employee referred the
dismissal dispute only after receiving the notice of
the disciplinary
hearing according to the respondent.
[7]
The case of the employee during the
arbitration hearing was that he had been required to travel between
Lydenburg and Rustenburg
to attend work seemingly after redeployment.
This placed a strain on his health. He was hospitalised on 7
th
August 2005 and was diagnosed with a lung infection. He was deployed
at the Impala mine where he did not go underground because
of his
health condition. He could not hand his medical certificate to
the third respondent’s management because their
offices were
always closed whenever he went there. He testified that despite
handing the medical certificate on the 15 August
2005, he was
disciplined for being absent without authorisation.
[8]
In as far as his dismissal was
concerned the employee testified that after his transfer to Impala
his supervisor confronted him
and wanted to know about the transfer.
The supervisor then advised him to accept an amount of R35 000 .00 in
lieu of his dismissal
and when he declined this offer the following
day, the supervisor told him that he should consider himself
dismissed.
The
grounds for review and the arbitration award.
[9]
The commissioner found that it was
improbable that the employee was dismissed through the letter which
had been addressed to the
hospital. The commissioner also rejected
the version of the employee that he was told by the supervisor that
if he declined to
accept the offer of payment in lieu of dismissal
there would be no work for him i.e. he was dismissed after rejecting
the financial
offer of separation. The commissioner accepted the
version of the respondent that the letter which the respondent sought
to rely
on as evidence of his dismissal was intended to facilitate
his exit from where he was working to the Marula area. The
commissioner
reasoned that the employee remained at his workstation
even after receipt this letter.
[10]
The applicant contended that the
commissioner acted grossly irregular in that he failed to apply his
mind to the evidence and the
material placed before him and as a
result reached a conclusion that is not rational or justifiable. This
test for review was formulated
prior to the decision in
Sidumo
v Rustenburg Platinum Mines Limited (2007) 28 ILJ 2405 (CC)
.
In the supplementary heads of argument the applicant relies on that
judgment to have the award reviewed and set aside.
[11]
The applicant also complained that the
commissioner made no attempt at properly understanding the sentence;
“
His contract has been ended with
DDT
,” in the letter written to
the Impala hospital which concerned the medical examination of the
applicant. The applicant also
in this regard contended that the
commissioner placed too much weight on the evidence of Mr Viljoeon.
Evaluation
[12]
The commissioner in his award formulated
the issue as follows:
“
3.1
Whether the employee was dismissed and if so, was such dismissal
procedurally and substantively fair.”
It
is evidently clear even from the papers of both parties that the key
issue which the commissioner had to deal with before considering
the
procedural and substantive fairness of the dismissal was the issue of
whether or not there was a dismissal.
[13]
The applicant has raised two points
in
limine
, the one relating to challenging
the authority of the deponent to attest to the founding affidavit and
the other concerns the incomplete
record of the transcript of the
arbitration proceedings.
[14]
The general rule applicable to review cases is
that
there is duty on an applicant to provide a review court with a full
transcript of the proceedings he or she wishes to have
reviewed and
failing which the review must either be struck of the roll or be
dismissed.
See Boale v National
Prosecuting & Others
2003 10 BLLR 988
(LC).
[15]
The exception to this rule is that the
court may consider the review even in the absence of the transcript
where it has been shown that the tape cassettes
are missing or where the parties are unable to reconstruct the
record. In this instance
the court will determine the application on
the evidential material which was before the commissioner or for that
matter on the
basis of the arbitration award itself. See
Nathaniel
v Northern Cleaners Kya Sands (Pty) Ltd & others
2003 JOL 11640
(LC)
.
[16]
I pause to briefly deal with the deference
between dismissing or striking a matter from the roll. The
distinction between striking
the matter off the roll and dismissal is
that in the case of dismissal the matter is disposed off and can no
longer be set down,
on the roll again. This means if the applicant
wishes to proceed with the matter in that instance he or she would
have to start
the matter
de novo
.
On the other hand when the matter is struck off the roll, the
applicant can after remedying the defect arising from the incomplete
or inadequate record have the matter re-enrolled and set down for a
hearing. The different consequences that arise from dismissal,
striking the matter off the roll, absolution from the instances were
considered in
Goldman v Stern
1931 AD
261
.
[17]
In
Peter
Fountas v Brolaz Projects (Pty) Ltd & others case number JA
35/03.
Nkabimde AJA, considered
the options which the court could adopt when considering whether to
dismiss or struck the matter of the
roll because of a defective or
inadequate record. The dismissal option should be adopted where the
applicant fails to explain why
despite the ample opportunity he or
she had, failed to take the appropriate steps to address the issue of
the defective or inadequate
record. The
Peter
Founters’,
decision cautioned
that the court should be slow in resorting to the dismissal option
for this has serious implication to a litigant
who is seeking to
challenge what he or she believes to be an unfair and unreasonable
award. In my view, in appropriate circumstances
where the dictates of
speedy resolution of the dispute, justice and fairness so dictates,
the court should not hesitate to dismiss
the matter due to inadequacy
of the record.
[18]
This approach of not readily dismissing an
review application even though there seem to have been no
satisfactory explanation was
adopted by Mashazi AJ, in the unreported
case of
Solidarity obo Canavan v
Commission for Conciliation, Mediation and Arbitartion and
Others (case number JR2999/06
[19]
.
In as far
as the dismissal option is concerned the court in
Peter
Founters’s case
in the last
part of paragraph [33]
,
said:
“
This
occur where, for example, the matter had dragged on for a long time
and the relevant party had had ample opportunity to reconstruct
the
record but had, for no acceptable reason, failed to so.”
[20]
The other option indicated in
Peter
Founters,
is that of postponing or
striking the matter of the roll to afford the applicant the
opportunity to reconstruct the record or to
find the missing parts of
the record. This should in general be done where the applicant has
given a satisfactory explanation as
to what attempts he or she had
taken to reconstruct or find whatever part of the record may be
missing.
[21]
The ultimate determination as to whether or
not to dismiss or struck a matter from the roll should be based on
fairness and justice
after the assessment of the conduct of the
applicant and the circumstances of the case. The order of dismissal
would in my view
be inappropriate where there is evidence of the
attempts on the part of the applicant, enquiring from the CCMA
regarding the missing
portion of the record and seeking to have that
part reconstructed. It would also be unfair to dismiss where the
record cannot be
found and it is also impossible to reconstruct.
[22]
It seems to me from the reading of the
authorities that where there is no record or the record is
inadequate, the applicant has
in addition to explaining in the papers
why the record is not complete or is in adequate, has to indicate in
full the steps he
or she took to ensure that the record was before
the Court including attempts at reconstructing it.
[23]
In dealing with the issue of the missing
part of the record the Labour Appeal Court, in the case of
Papane
v Van Aarde N.O &Others
2007 JOL 20412(LAC)
,
confirmed its decision in
Lifecare
Special Services (Pty) Ltd t/a Ekuhlengeni Care Centre v Commissioner
for Conciliation Mediation & Arbitration &
others (2003) 24
ILJ 931 (LAC)
, and per Kruger AJA said:
“
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 the parties
and the commissioner should have endeavoured to
reconstruct the
missing part”.
[24]
In the
Papane’s
case (supra), on the facts the Court found that the appellant failed
to initiate any steps toward the reconstruction of the missing
part
of the record and to this extend the Court held that, the court a quo
should have declined to hear the matter on its merit
and should have
either dismissed the application or struck it of the roll.
[25]
In the present case the applicant has failed to file the
transcribed portion of the evidence f its own witness, the employee.
The
transcribed part of the record indicate that the “
rest
of tape 1 side 1 and 2 is blank”.
There is no evidence from
the applicant as to what steps he took to have this portion of the
record reconstructed.
[26]
It is common cause that the employee did
testify during the arbitration proceedings which then means that his
evidence was not transcribed
and filed as part of the record. This
portion of the record is materially important and without it this
court is not placed in
a position where it would be able to fairly
determine whether the decision of the commissioner was reasonable or
otherwise. This
portion of the record is important because as
indicated earlier the first issue which the commissioner was enjoined
to consider
was whether or not the employee was dismissed. Therefore,
it then follows that the evidentiary duty to show that the dismissal
took place rested with the applicant. This evidentiary material is
essential in the determination of whether the decision of the
commissioner that there was no dismissal is reasonable regard being
had to the evidentiary material which was before him. There
is no
explanation from the applicant as to why the missing portion of the
record which is so materially important to the determination
of
whether or not the court should interfere with the arbitration award
is not transcribed and filed as part of the record.
[27]
It is therefore my view that the applicant
has failed to place before this court a complete record to enable the
court to assess
and evaluate the reasonableness of the conclusion
reached by the commissioner. And for this reason I do not deem it
necessary to
determine the merit of the review application. It
therefore means that the applicant’s application stand to be
dismissed
on this ground alone.
[28]
I see no reason in the circumstances of
this case why costs should not follow the results.
[29]
In the premises the applicant’s
application to review and set aside the arbitration award issued by
the commissioner under
case NW5963-05 dated the 12 April 2006, is
dismissed with costs.
_____________
Molahlehi
J
Date
of Hearing:
30
May 2008
Date
of Judgement:
23 October 2008
APPEARANCES:
For
the Applicant:
T J Scott
Instructed
by:
(Union Official)
For
the Respondent: Adv
Strauss
Instructed
by:
TG Bosch-Badenhorst Attorneys