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[2015] ZALCJHB 347
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EBS Security Admin (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR1314/13) [2015] ZALCJHB 347 (6 October 2015)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case No: JR1314/13
In
the matter between:
EBS
SECURITY ADMIN (PTY)
LTD
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
LUFUNO RAMABULANA
NO
Second
Respondent
ANDRE
VAN DER
HEEVER
Third Respondent
Delivered:
06 October 2015
Summary:
Generally, the record of proceedings is of critical importance when a
court is required, in review proceedings,
to determine whether a
Commissioner’s award is one that a reasonable decision-maker
could have reached - t
he
Applicant’s review application required a complete record - in
the absence of a complete record, a determination on whether
a gross
irregularity was committed and a finding on whether the arbitrator
produced an unreasonable outcome cannot be made
-
t
he
Applicant has not discharged the onus to show that the award is
reviewable.
The
award, read in totality, does not reflect a material patent
irregularity -
no
reasonable prospects that another court would arrive at a finding -
the
application
for leave to appeal is dismissed.
JUDGMENT
–
LEAVE TO
APPEAL
VAN DER MERWE, AJ
[1]
The
review application in this matter was heard on 17 December 2014 and
my judgment was delivered as an
ex-tempore
judgment on the same day.
[2]
This
is an application for leave to appeal against the entire judgment
that I handed down on 17 December 2014. The Applicant, on
13 May
2015, delivered written submissions in support of its application for
leave.
The
parties were informed that this application for leave would be
decided in Chambers on the basis of the submissions filed in
terms of
Rule 30(3A)
and
I proceed to do so in this judgment.
[3]
I
have therefore considered the application for leave to appeal
and
submissions
made pursuant thereto on the papers
.
This application for leave to appeal is unopposed.
The test applicable to
applications for leave to appeal
[4]
It
is trite that the
court
will grant leave to appeal if it is shown:
4.1.
that
there are reasonable prospects of success on appeal or, stated
differently, that there is a reasonable possibility that another
court may come to a different conclusion; and
4.2.
either:
4.2.1.
that
the amount in dispute is not trifling, or
4.2.2.
that
the matter is of substantial importance to either or both of the
parties.
[1]
[5]
In
the Labour Court, only the first of these is required.
[2]
[6]
The
Applicant
has to demonstrate that there is a reasonable possibility that
another court, in this case the Labour Appeal Court, may
come to a
different conclusion to what I have arrived at in the judgment.
The
Judgment
[7]
The central findings of the judgment can be stated as follows:
7.1.
The record in the review application was incomplete and the review
could not be determined without
the record by merely considering the
award. Primarily, a decision as to whether an award is reasonable can
only be taken after
a careful consideration of all the evidence that
was before the Commissioner.
7.2.
The Applicant did not transcribe the handwritten notes or attempt to
reconstruct the record and
the court was in no position to adjudicate
properly on the application. There was no justification as to why the
Applicant did
not produce a proper record.
7.3.
The Applicant’s representative conceded that the record was
incomplete and illegible but
maintained that the application could be
determined without a record by merely considering the award itself. I
disagreed on the
basis that no gross irregularity was patent from the
award itself and also because there appeared to be a dispute of facts
which
presented the Applicant with a dichotomy of manifestly
incompatible approaches. Furthermore, the court was in no position to
adjudicate
properly on a review application aimed at the merits of
the dismissal and a view could not be expressed on the reasonableness
of
the award in these circumstances.
Grounds
of Appeal
[8]
The Applicant advances this appeal on three grounds:
8.1.
that I erred and misdirected myself in assessing the logic of the
Second Respondent
who made the arbitration award;
8.2.
that I erred and contradicted myself in paragraph 6 of the Judgment;
and
8.3.
that I erred and misdirected myself by opining that the Review
Application could
not be decided on the arbitration award itself.
[9]
T
he
record of the arbitration had not been made available and the
Applicant did not provide any justification for this.
[10]
There is no dispute or uncertainty with regards to what comprised the
record of the arbitration proceedings before the Commissioner.
The
Applicant’s supplementary affidavit clearly rests on the
record, as filed, and makes it clear in paragraph 4 that the
deponent
has “read the record” and that the Applicant relies on
this record to “… further… illustrate,
the
grossly irregular nature of the arbitration award…”
[11]
The supplementary affidavit goes
on
to
record that the Commissioner’s handwritten notes are illegible
but the Applicant did not address this shortcoming by following
the
settled practice of transcribing the handwritten notes. The
illegible
handwritten
notes are
the
only recordal of the proceedings
before
the Commissioner
.
[12]
The Applicant’s failure to transcribe the handwritten notes or
to obtain legible copies of the notes, which could be
transcribed,
left the court with an incomplete record.
[13]
In a
belated
attempt
to deal with the above
defect
,
the Applicant in its submissions in support of application for leave
to appeal refers to an email from the CCMA dated 22 April
2015 and
suggests in paragraphs 11 and 12 of the submissions that the
Applicant was unable to supplement the record because the
CCMA
informed the Applicant that the
C
ommissioner’s
services were terminated.
[14]
As
referred
to
above,
the Applicant should have obtained a legible copy of the notes (which
should be in the CCMA file) and should have had a transcribed
version
thereof at the hearing of the review application. In addition, the
review application was argued on 17 December 2014 and
the judgment
was delivered on the same day as an
ex-tempore
judgment being on 17 December 2014 and the Applicant cannot rely on
an attempt to supplement the record (in its submissions in
support of
application for leave to appeal) after the judgment and thereby
escape the consequences of
a
defective
review application.
[15]
Generally, the record of proceedings is of critical importance when a
court is required, in review proceedings, to determine
whether a
Commissioner’s award is one that a reasonable decision-maker
could have reached in the light of the evidence that
was presented to
the Commissioner. Rule 7A(5) of the Labour Court Rules also
incorporates this requirement when it demands that
an applicant must
make copies of such portions of the record as may be necessary for
the review. The Applicant’s review application
included
the
handwritten notes made by the
C
ommissioner
and
the Applicant
presented
these notes as necessary for the review. This was also
the
Applicant’s position in
the
founding affidavit that sought to capture the material evidence that
was presented at the CCMA in paragraphs 10 to 25 of that
affidavit.
[16]
Contrary to the above
,
the
Applicant in court attempted to abandon the record and argue that the
review application could be determined without the record
and by
merely considering the award. It is this line of argument that forms
the pivot of this appeal.
[17]
I do
not agree with the Applicant’s submission that this review
(dealing with the merits of the dismissal) can be determined
as
a
n
exception to the general rule referred to in 15 above i.e. as a
narrow
issue
that
can be determined
without
the need for a record.
[18]
If this was to be permitted, it would bring about a piecemeal and
fragmented analysis of this award. A broad–based evaluation
of
the totality of the evidence is required in this review application
in order to determine whether a gross irregularity was committed
i.e.
whether the alleged irregularity was material to the outcome.
[19]
In sum, the Applicant’s review application required a complete
record. In the absence of a complete record, a determination
on
whether a gross irregularity (that was material to the outcome) was
committed and a finding on whether the arbitrator produced
an
unreasonable outcome cannot be made.
[3]
[20]
The Applicant has not discharged the onus to show that the award is
reviewable. The Appeal Court and this court has on numerous
occasions
cautioned applicants that a party in review proceedings who do not
furnish an adequate record to the Court runs the risk
of not
discharging the onus that the matter is reviewable.
[4]
[21]
The Applicant’s review application should on this ground alone
be dismissed.
[22]
I do not think that there is a reasonable possibility that another
court will come to a different conclusion.
[23]
I also do not see any merit in the Applicant’s second
submission that paragraph 6 of the judgment contains a contradiction.
Paragraph 6 of the judgment must be read in its proper context and
both paragraphs 5 and 6 are thus quoted. The paragraphs are
plain and
reads as follows:
“
[5]
The Applicant’s representative conceded that the record was
incomplete and illegible,
but maintained that the application can be
determined without a record by merely considering the award itself.
[6]
I do not agree. It is correct that sometimes in the absence of a
complete record,
the courts have been robust in determining the
matter on the available information. But these instances are limited
to where the
irregularity may be so patent from the award itself,
that a record might not be necessary or because there was no
‘material
dispute of fact going to the very heart of the review
application.’”
[24]
I was not willing to determine the review application in the absence
of a complete record. This review did not justify a deviation
from
the general rule and a complete record was required. The existence of
a material dispute of fact going to the heart of the
review existed
on the papers and this was a further reason why a full record was
required.
[25]
The
Applicant argues
that
a patent irregularity is clear
from
paragraph 24 of the Second Respondent's award. The portion of the
paragraph on which the Applicant relies reads:
“
It is [in]
my opinion the said granting of the competency certificate [which]
was so close to the termination of employment that
a reconsideration
of the dismissal should have genuinely been made.”
[26]
This is, however, not reflective of the full reasoning in the award.
The aforementioned sentence is quoted out of context.
The award makes
it clear that the dismissal was found to be substantively unfair also
due to the fact that the Applicant “could
have been granted
further time” and because other alternatives could have been
explored. Paragraphs 23 – 26 of the
award is quoted in full as
follows:
“
23.
I did not find anything and (sic) how this retrenchment would have
assisted the respondent in
its operation in fact it would seem the
company would have been assisted by retaining his services.
24.
The respondents seem to have granted the applicant some indulgence
and time to get his competency
certificate. It is my view that
the delay was not extremely excessive to an extent that it would
amount to being unreasonable,
more so it was granted just a week
after termination of employment. It is my opinion the said
granting of the competency
certificate was so close to the
termination of employment that a reconsideration of the dismissal
should have genuinely been made.
25.
It was argued that applicant refused to take an alternative job at a
lesser pay and hence
his retrenchment was then made final, it seems
as suggested by the applicant that he was seconded to do other work
and paid his
salary, in this instance it is my view that before any
dismissal could be made and as it was not (sic) applicant’s
fault that he did not have the said certificate he could have been
granted further time albeit at different condition (sic) like
suspension of the employment until such time that he gets competency
certificate.
26.
Applicant’s retrenchment does not make operational requirements
sense (sic) and I
find it unfair on the basis that other alternatives
could have been made, the employer had given him indulgence to get
his certificate,
the delay from December 2012 to 11th February 2013
was not in my view the (sic) excessive to an extent that the
employer’s
operations could have been affected negatively.
The employer in my view could have made other alternatives to avoid
costs
if that really was their concern.”
[27]
In conclusion, the award, read in totality, does not reflect a
material patent irregularity.
[28]
In
the absence of a complete record, it is difficult to see how another
court will be in a better position to
review
and
set
aside the award. I, accordingly, find no reasonable prospects that
another court would arrive at a finding different from mine.
[29]
In the circumstances, the application for leave to appeal ought to be
dismissed.
Order
[1]
The
following order is, therefore, made:
1.1.
The
application for leave to appeal is dismissed.
1.2.
No
order is made with respect to costs as there was no opposition to the
application.
_____________________
Van der Merwe, AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Q Donaldson (On the Papers)
For
the Respondent: Unopposed
[1]
See
Afrikaanse
Pers Bpk v Olivier
1949 (2) SA 890 (O).
[2]
See
Woolworths
Ltd v Matthews
[1999]
3 BLLR 288
(LC) and
Van
der Merwe v Du Plessis
(1999) 20
ILJ
1305 (LC) at para 4.
[3]
The
SCA in
Herholdt
v Nedbank Ltd
(2013) 34
ILJ
2795
(SCA) explained the
standard
of review,
laid
down by the Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007)
28
ILJ
2405 (CC)
,
as
follows:
‘
[12]
….That test involves the reviewing court examining the merits
of the case “in
the round” by determining whether, in
the light of the issue raised by the dispute under arbitration, the
outcome reached
by the arbitrator was not one that could reasonably
be reached on the evidence and other material properly before the
arbitrator.
(footnote omitted) On this approach the reasoning of the
arbitrator assumes less importance than it does on the SCA test,
where
a flaw in the reasons results in the award being set aside.
The reasons are still considered in order to see how the arbitrator
reached the result. That assists the court to determine whether that
result can reasonably be reached by that route. If not,
however,
the
court must still consider whether, apart from those reasons, the
result is one a reasonable decision-maker could reach in
the light
of the issues and the evidence.
…
.
[25]
In summary, the position regarding the review of CCMA awards is
this: A review of a CCMA
award is permissible if the defect in the
proceedings falls within one of the grounds in s 145(2) (a) of the
LRA. For a defect
in the conduct of the proceedings to amount to a
gross irregularity as contemplated by s 145(2) (a) (ii), the
arbitrator must
have misconceived the nature of the inquiry or
arrived at an unreasonable result.
A
result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before
the
arbitrator
.
Material errors of fact, as well as the weight and relevance to be
attached to particular facts, are not in and of themselves
sufficient for an award to be set aside, but are only of any
consequence if their effect is to render the outcome unreasonable.
’
[My
emphasis]
See also, the Labour
Appeal Court in
Gold Fields Mining South Africa (Pty) Ltd (Kloof
Gold Mine) v Commission for Conciliation, Mediation and Arbitration
and Others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC), at 21:
‘
[21]
Where the arbitrator fails to have regard to the material facts it
is likely that he or she
will fail to arrive at a reasonable
decision. Where the arbitrator fails to follow proper process he or
she may produce an unreasonable
outcome (see
Minister
of Health and another v New Clicks SA (Pty) Ltd and Others
2006
(2) SA 311
(CC). But again, this is considered on the totality of
the evidence not on a fragmented, piecemeal analysis. As soon as it
is
done in a piecemeal fashion, the evaluation of the decision
arrived at by the arbitrator assumes the form of an appeal. A
fragmented
analysis rather than a broad-based evaluation of the
totality of the evidence defeats review as a process. It follows
that the
argument that the failure to have regard to material facts
may potentially result in a wrong decision has no place in review
applications. Failure to have regard to material facts must actually
defeat the constitutional imperative that the award must be
rational
and reasonable – there is no room for conjecture and
guesswork.’
[4]
See
SACCAWU
and Others v President Industrial Tribunal and Another
[2000] ZASCA 163
;
2001
(2) SA 277
(SCA) at para 7 and
JBE
Trading (Pty) Ltd t/a Russells v Whitcher NO and Others
(2001)
22
ILJ
648 (LAC).