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[2009] ZALCCT 3
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RAM Hand-To-Hand Couriers v National Bargaining Council for the Road Freight Industry (NBCRFI) and Others (C174/2007) [2009] ZALCCT 3 (26 January 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN CAPE TOWN
CASE NO. C174/2007
In
the matter between:
RAM
HAND-TO-HAND
COURIERS Applicant
and
NATIONAL
BARGAINING COUNCIL FOR
First
Respondent
THE
ROAD FREIGHT INDUSTRY (“NBCRFI”)
DAVID
MIAS Second
Respondent
(Cited
in his capacity as Arbitrator of
the
National Bargaining Council for the
Road
Freight Industry (“NBCRFI”)
ANTHONY
PEKEUR Third
Respondent
LEAVE TO APPEAL
AC
BASSON, J
[1]
This is an application by the applicant for leave to appeal against
my judgment and order dated 27 May 2009.
[2]
In that judgment I concluded that there is no reason why this Court
should interfere with the conclusion reached by the Commissioner
as
it is not one that a reasonable decision maker could not reach in the
circumstances.
[3]
The Application for leave to appeal takes issue with two issues. (i)
The first is the finding that since the Applicant made
no attempt to
reconstruct the record of the arbitration proceedings, the award did
not fall to be set aside purely on the basis
of the absence of the
record. (ii) Secondly the finding that the conclusion arrived at by
the arbitrator to the effect that the
sanction of dismissal was too
harsh in light of all the circumstances did not warrant interference
on review.
[4]
The application is one day late. I have considered the reasons
furnished for the late referral and in light of the fact that
the
delay is negligible, condonation is granted.
Absence
of a record
[5]
The Applicant for leave to appeal contends that this court erred in
finding that the Applicant should carry the risk as a result
of
failing to produce a satisfactory record. In the event it was thus
submitted that there exists prima facie grounds to review
and set
aside the decision on this ground alone. The Applicant argued that it
was materially prejudiced by the absence of a proper
record to such
an extent that fairness and equity dictate that the award be set
aside on this basis alone.
[6]
This court was of the view that the review could proceed in the
absence of the record in light of the fact that there did not
exist a
material dispute of fact. The court proceeded without having regard
to the record of the arbitration.
[7]
The Respondent argued that the Applicant is required to place
evidence before the Court regarding the steps it had taken to
reconstruct the record and to explain why it was not possible to
place an adequate record before the Court if it was the case.
Moreover, an applicant for review faced with a defective record is
not entitled to merely do nothing and seek to have the proceedings
set aside on the basis that the arbitrator has failed to deliver the
record of the proceedings (see
Fidelity Cash Management Services
(Pty) Ltd v Muvhango NO & Others
(2005) 26
ILJ
876
(LC) at 879E – F). The Court will also not as a matter of
course accept that due to a fault with the audio recording of
the
proceedings a complete transcript was not possible. (See
Papane v
Van Aarde NO & Others
(2007) 28
ILJ
2561 (LC) where
the LAC did not accept such an explanation at 2574G – I).
[8]
In the application for leave to appeal the Applicant relies on the
fact that the arbitrator did not file any written notes of
the
arbitration proceedings together with the record. The Applicant
alleges that it is “
unclear”
whether such notes
were kept. I am in agreement with the submission that this does not
take the matter any further. It is not for
a Court to speculate
whether or not the Arbitrator kept written notes. It is the Applicant
in a review that ought to have taken
steps to secure the arbitrator’s
notes if any. If there were no such notes, the Applicant ought to
have given evidence to
this effect in its supplementary affidavit.
[9]
I have already indicated that the Applicant must place evidence
before the Court describing what steps had been taken to complete
the
record. Yet in the Applicant’s supplementary affidavit it fails
to allege that it took any steps whatsoever to reconstruct
the record
upon learning of the loss of the tapes. The Applicant’s conduct
therefore falls short of what is required of a
litigant. I am of the
view that this in itself constitutes sufficient basis to dismiss the
review. The Court, however, did not
dismiss the review on this basis
alone but proceeded with the considering of the view in light of the
fact that the record was,
in any event, not material to the review. I
am of the view that there is no reasonable prospect that another
Court would reach
a different conclusion in respect of this point.
The
sanction
[10]
The Applicant contend that this Court erred in failing to find that
it had made out a proper case on review notwithstanding
the defective
record and that the Court erred in finding that there did not exists
a material dispute of fact which goes to the
heart of the review.
There are two points to be made here. Firstly, the Applicant must
stand and fall by the fact that it failed
to take any steps to
reconstruct the record. Secondly, a plain reading of the award
clearly shows that the Commissioner passed
the test of
reasonableness. The arbitrator was steeped in the atmosphere of the
arbitration hearing and had the benefit of listening
to the evidence
and observing the witnesses hence its conclusion that the event which
gave rise to the dismissal was blown out
of proportion. This is not
reasonable and coupled with the fact that the offence was not serious
and in light of the employee’s
clean disciplinary record and in
light of his long length of service, the conclusion that dismissal
was not an appropriate sanction
is clearly a reasonable conclusion.
It certainly is not a conclusion that a reasonable decision maker
could not reach. It should
lastly be borne in mind that the question
is not whether or not the arbitrator was right or wrong, but whether
or not the arbitrator
arrived at a reasonable decision. This was not
an unreasonable decision. I am therefore of the view that there is no
reasonable
prospect that another Court could conclude otherwise.
[11]
In the premises the application for leave to appeal is dismissed with
costs.
AC
BASSON, J 26 January 2009