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[2014] ZALCJHB 84
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Liquifire Organic Fuel CC v Ngobeni NO and Others (JR2390/12) [2014] ZALCJHB 84 (17 January 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
NOT
REPORTABLE
CASE
NO JR 2390/12
In
the matter between:
LIQUIFIRE
ORGANIC FUEL CC
APPLICANT
and
EVA
NGOBENI
NO 1
ST
RESPONDENT
CCMA 2
ND
RESPONDENT
ABEL
LEBUDI
3
RD
RESPONDENT
Application
heard: 26 November 2013
Judgment
delivered: 17 January 2014
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
This is an application to review and set aside an arbitration award
made by the first respondent, to whom I shall refer as ‘the
commissioner’. In her award, the commissioner held that the
third respondent had been unfairly dismissed and ordered the
applicant to reinstate him.
[2]
At the hearing of the application, the third respondent was
represented
pro bono
by Adv G Fourie, under the auspices of
the legal aid programme initiated and managed by the South African
Society for Labour Law.
The court is indebted to Adv Fourie for his
assistance.
[3]
The facts that are material to the application can be briefly stated.
The third respondent was employed by the applicant in
March 2004. The
third respondent as suspended on 17 May 2012, after having been found
guilty of various offences under the applicant’s
disciplinary
code. The hearing was conducted by a consultant, who recommended, as
an alternative to dismissal, that the third respondent
be suspended
for a period of a week. For reasons that are not immediately apparent
from the record, the applicant decided that
suspension for a period
of two days was appropriate. The applicant’s case was that it
specifically advised the third respondent,
through the medium of an
interpreter, that he had been suspended for two days, and he was
advised of the dates on which he should
not report for work. The
third respondent’s version was that he had been suspended for
five days, that he remained absent
from work for five days and that
on his return to work on 29 May, he was told by a Mr Haywood that he
was dismissed, in essence
on account of the previous referral of a
dispute to the CCMA. This version was denied by the applicant’s
witnesses,
who stated that the third respondent had deserted, despite
a number of attempts by letter and by sms messages to request him to
return to work.
[4]
The commissioner correctly identified that the issues in dispute were
the existence of a dismissal, and assuming that the third
respondent
discharged the onus of establishing that he had been dismissed,
whether the dismissal was procedurally and substantively
fair.
[5]
In regard to the first issue, the commissioner found that the third
respondent had been dismissed. She found, on balance, that
the third
respondent had been dismissed on 29 May as he claimed. On the merits
of the claim, the commissioner found that the third
respondent’s
dismissal was substantively and procedurally unfair, largely on the
basis of inconsistencies in the applicant’s
version.
[6]
In review proceedings in this court, the applicant bears the
obligation to place a complete record before the court. In the
present instance, the state of the record is unsatisfactory and is
insufficiently complete for the court to exercise any judgment
as to
the reasonableness of the commissioner’s award. First, the face
of the record indicates that a not insignificant portion
of the
proceedings was never transcribed. The transcriber has prefaced the
record with a note to the effect that ‘a lot of
what was
discussed between the Applicant and the interpreter was not
interpreted for the record. Therefore it could not be placed
in the
record.’ Certain of the passages that are specifically indicted
by the transcriber as not having been interpreted
extend beyond the
obviously irrelevant – there are passages, for example, where
what would appear to be substantive statements
made by the third
respondent are missing. Secondly, the commissioner and the parties
make extensive reference to the applicant’s
bundle of
documents. These were not placed in the court file, if they were
filed at all. The documents specifically referred to
and on which
crucial findings were made include copies of letters which the
applicant avers were sent to the third respondent to
address the
issue of his ‘desertion’ and to invite him to return to
work. Also relevant is the documentation surrounding
the notice of
further disciplinary proceedings relating to what the applicant
contended to be absence from work. Particularly relevant
is the
documentation handed in by the applicant’s witness Brown, and
included in the bundle as pages 30 to 32. This is crucial
to any
assessment of the commissioner’s factual findings and in
particular to her finding that the applicant had fabricated
documents
for the purpose of the arbitration hearing. There is no explanation
for the absence of these documents from the record
before the court.
It is incumbent on an applicant in a review application to ensure
that a complete record of the proceedings under
review is before the
court. In ordinary circumstances, I would have had no hesitation in
dismissing the application for this reason
alone. However, the
absence of the documentation concerned only serves to exacerbate a
situation already made difficult by the
poor state of the
transcription of the evidence. In short, I find myself unable to do
justice to the parties on the basis of the
existing record. There is
clearly no prospect of any reconstruction of the record within a
reasonable time, and it seems to me
therefore that the order that is
just and equitable in the circumstances is that the matter be
remitted for rehearing by a different
commissioner. To the extent
that the review of an award is taken into account in assessing the
performance of commissioners, the
circumstances of the present matter
are such that the order I intend to make is no reflection on the
conduct of the commissioner.
I
make the following order:
1. The
arbitration award issued by the first respondent on 13 August 2012
under case number GATW 6762/12 is reviewed
and set aside.
2. The
matter is remitted to the second respondent for rehearing before a
commissioner other than the first respondent.
3.
There is no order as to costs.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the applicant: Adv Roeloffs, instructed by De Villiers and Du
Plessis
For
the third respondent: Adv G Fourie,
pro bono