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[2015] ZALCJHB 314
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Passenger Rail Agency of south Africa v Commission for Conciliation, Mediation And Arbitration and Others (JR 868/13) [2015] ZALCJHB 314 (11 September 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR 868/13
DATE: 11 SEPTEMBER 2015
NOT REPORTABLE
In the matter between:
PASSENGER RAIL AGENCY OF SOUTH
AFRICA
....................................................
APPLICANT
And
COMMISSION FOR CONCILIATION,
MEDIATION AND
ARBITRATION
...............................................................
FIRST
RESPONDENT
JOSEPH TSABADI
N.O
..............................................................................
SECOND
RESPONDENT
TUMISHO MICHAEL
MASHIGE
................................................................
THIRD
RESPONDENT
Heard: 9 September 2015
Delivered: 11 September 2015
JUDGMENT
VAN NIEKERK J
[1] The third respondent, Mr. Michael
Mashige, is a train driver. He was dismissed by the applicant (PRASA)
on 23 October 2012 after
a disciplinary hearing into charges of
misconduct, in particular, that he brought the company to disrepute
and that he made false
allegations of corruption against the then
group CEO, Mr. Lucky Montana. Mashige (the employee) disputed the
fairness of his dismissal
and referred the matter to the first
respondent for arbitration. The arbitration was conducted by the
second respondent, to whom
I shall refer as the arbitrator. PRASA
failed to attend the arbitration proceedings, for reasons that are
not disclosed. The proceedings
continued in PRASA’s absence and
after hearing evidence from the employee, the arbitrator made an
award in his favour. Specifically,
he ordered that the employee be
reinstated with four months’ back pay.
[2] In these proceedings, PRASA seeks
to review and set aside the arbitrator’s award. It does so on
three grounds. The first
is a challenge to the arbitrator’s
finding that the employee services were terminated without there
being a formal disciplinary
hearing; the second is that the
employee’s dismissal had been effected without regard to the
statutory code of practice;
the third is that the arbitrator erred in
making a finding that the reasons for the employee’s dismissal
were trumped up
and designed with the sole purpose of getting rid of
him.
[3] I deal first with the issue of the
absence of the record of the proceedings under review. The
documentary evidence produced
at the arbitration hearing has been
filed. What is missing from the record is a transcript of the
evidence that was proffered by
the employee. In paragraph [3] of his
award, the arbitrator pertinently the notes that the arbitration
proceedings were digitally
recorded. He also took handwritten notes.
As long ago as 3 October 2013, the employee’s current attorney
of record notified
the applicant’s attorneys that there was no
transcription of the record of proceedings nor was there any
transcript of the
commissioner’s handwritten note. The
employee’s attorneys specifically recorded that having regard
to the grounds for
review articulated in the founding affidavit, it
was essential to have a proper record of the arbitration proceedings.
On 8 October
2013, and in the absence of any reply to the enquiry
relating to the availability of the record, the employee’s
attorney
again wrote to the applicant’s attorney making enquiry
as to the availability of the record. A further letter was sent on
10
October 2013, after telephone discussions between the parties’
respective attorneys on the availability of the arbitrator’s
handwritten notes. The employee’s attorney had herself, on 8
October 2013, enquired from the CCMA as to the availability
of a
record. Despite these persistent enquiries, PRASA failed to file
either a transcription of the arbitrator’s handwritten
notes,
or transcription of the recording of the arbitration proceeding.
There is no explanation on affidavit as to the fate of
either record
– in submissions from the bar, PRASA’s representative
seemed to apportion at least part of the blame
onto the employee’s
attorney.
[4] The provisions of Rule 7A are
clear. It is incumbent on an applicant in the review proceedings to
file the record of the proceedings
under review. The practice manual
applicable in this court requires the record to be filed within 60
days of the applicant being
notified by the registrar of the
availability of the record and goes further to provide that in the
absence of any application
to extend the 60 day period, the failure
to file the record timeously has the consequence of the application
being regarded as
having been withdrawn. These provisions are, of
course, consistent with the statutory purpose of the expeditious
resolution of
labour disputes and indeed, are intended to advance
that purpose.
[5] In Karabo Terrence Kgoadi v CCMA &
others (JR 2127/2010, 29 November 2013), this court reviewed a number
of judgments concerning
an applicant’s obligation to file a
record and the consequences of a failure to do so. The general rule
is that the failure
to file a record (at least that part of it that
is relevant to the review application) has the consequence that the
court ought
properly to dismiss the application on that ground alone.
This approach has received the imprimatur of the Labour Appeal Court,
which in JDG Trading (Pty) Ltd t/a Russells v Whitcher NO &
others (2001) 22 ILJ 648 (LAC) said at paragraph [13] of the judgment
that in the absence of a transcribed record of the proceedings, the
court is not in a position to properly adjudicate on the application
before it and ought in those circumstances to dismiss the
application. Later cases (e.g. Solidarity obo Botha v CCMA &
others
(2009) 30 ILJ 1363 (LC) have suggested that where an applicant
is in breach of the duty to provide the review court with a full
transcript of the proceedings, the review application must be
dismissed or struck from the roll. In any event, it is incumbent
on
an applicant where there is no record or where the record is
inadequate, to explain why the record is not complete and to indicate
in full the steps taken to ensure that the record was placed before
the court.
[6] In the present instance, there is
no such explanation before the court. PRASA’s representative
boldly asserted that certain
steps had been taken and referred to
correspondence between the parties’ respective legal
representatives. This explanation,
coming as it does from the bar,
carries no weight and to the extent that it was implied that the
failure to file the record was
somehow the fault of the employee’s
attorney, there is absolutely no merit in this assertion. In short,
PRASA’s failure
to file a complete record, compounded by its
failure to furnish an acceptable explanation for that failure, as the
result of that
the application stands to be dismissed
[7] The importance of a record cannot
be overemphasised. The test for review that has recently been
affirmed by the Supreme Court
of appeal and the Labour Appeal Court
requires this court to examine the record and to determine ultimately
whether notwithstanding
any defects in an arbitrator’s
reasoning or any other reviewable irregularities on the arbitrator’s
part, the result
of the proceedings can nonetheless be sustained by
reference to the record. Where there is no complete record, this is
obviously
impossible especially where, as in a case such as the
present, the grounds for review are predicated on what are contended
to be
conclusions and findings that are not supported by the
evidence. It is not open to an applicant, and in the present instance
to
PRASA, who failed to file a complete record and then to make
submissions regarding the arbitrator’s evaluation of the
evidence
by reference to that evidence. The summary of evidence
contained in an arbitrator’s award is intended to be precisely
that.
It is not a substitute for record and it is by no means a basis
from which the reasonableness of any conclusion reached by the
arbitrator can be ascertained.
[8] Even if I am wrong in my view that
the application should be dismissed on account of PRASA’s
failure to comply with its
obligations in respect of the record, none
of the grounds for review advanced by PRASA have any merit. In
relation to the first
ground, a careful reading of the arbitration
award discloses that the arbitrator did not find, as PRASA avers,
that there was no
formal disciplinary hearing. The relevant sentence
in paragraph [12] of the award reads as follows:
The reason for the termination of the
applicant services was not objectively established in a formal
disciplinary hearing.
What the arbitrator clearly intended to
convey is that the applicant had failed to establish a substantively
good reason for dismissal
at the disciplinary hearing that was held.
This reading is consistent with paragraph [9] of the award in which
the arbitrator specifically
acknowledges that PRASA held a
disciplinary hearing on 8 June 2012 and that the enquiry was
postponed to various dates until the
employee was ultimately
dismissed on 22 October 2012. PRASA’s submission that the
arbitrator committed a reviewable irregularity
by making a finding to
the effect that they had been no disciplinary hearing is therefore
simply incorrect.
[9] The second ground for review, an
averment to the effect that the arbitrator committed a reviewable
irregularity by finding that
PRASA had failed to comply with the
relevant statutory code of good practice, is similarly predicated on
a misreading of the arbitrator’s
award. What the arbitrator
found, in paragraph [12] of the award, is that the employee’s
dismissal had been effected without
due regard to the code of good
practice ‘which emphasises both procedural and substantive
fairness when effecting dismissal
related to conduct and/or
incapacity.’ The arbitrator goes on in the same paragraph to
find that the employee’s dismissal
was substantively unfair.
The context of the reference to the statutory code of good practice
is clearly one related to the arbitrator’s
finding, i.e. that
PRASA had failed to establish a substantively sufficient reason for
dismissal. The arbitrator does not suggest
that PRASA failed to
comply with the code of practice simply because it failed to convene
a disciplinary hearing. Again, the premise
on which the submission is
advanced is entirely incorrect.
[10] The third ground for review, as I
understand it, suggests that the arbitrator committed a reviewable
irregularity by finding
that the charges against the employee had
been trumped up. Is understood the submission, the arbitrator’s
finding is irrational
because the evidence recorded in the
arbitration award does not indicate the employee’s response to
the charges that were
brought against him. In my view, does not open
to PRASA to make submissions based on evidence which is not disclosed
in that part
of the record that is not available to the court in
circumstances where it has failed in its statutory obligation to make
the full
record available to the court. A cursory reading of the
arbitration award suggests that the employee had testified before the
arbitrator
that in his view, the charges brought against him were
trumped up and that in the absence of any conflicting evidence and
bound
as he was, to make a finding only on the version proffered by
the employee, the arbitrator made such a finding. In these
circumstances,
there is nothing irregular about the arbitrator’s
conduct. In any event, it is incumbent on the applicant to show more
than
any flaw in the arbitrator’s reasoning or his conduct of
the proceedings. The applicant must establish that despite any such
lapses, the result or outcome of the proceedings falls outside of a
band of decisions to which reasonable decision-maker could
come on
the available material. This is not the case that is made in the
applicant’s papers.
[11] For all of the above reasons, the
application stands to be dismissed. In relation to costs, this court
has a broad discretion
in terms of s 162 to make orders for costs
according to the requirements of the law and fairness. The employee
was found to have
been unfairly dismissed in arbitration proceedings
that PRASA did not oppose. Notwithstanding the inevitable award made
by default
in favour of the employee, PRASA has initiated these
review proceedings on grounds that patently have no merit. I was
advised from
the Bar that the employee has been unemployed since his
dismissal some three years ago. I fail to appreciate on what basis he
should
not be entitled to his costs.
I make the following order:
1. The application is dismissed with
costs.
ANDRÉ VAN NIEKERK
JUDGE OF THE LABOUR COURT
REPRESENTATION:
For the applicant: Mr. P Mosebo,
Maserumule Attorneys
For the third respondent: Ms. C
Gray, Charmain Gray Attorneys