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[2017] ZALCCT 23
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Ravat v CCMA and Others (C628/15) [2017] ZALCCT 23 (30 May 2017)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 628/15
In the
matter between:
Veronique RAVAT
First applicant
and
CCMA
First respondent
Bella GOLDMAN N.O.
SOUTH AFRICAN ASTRONOMICAL
OBSERVATORY
Second respondent
Third respondent
Heard
:
16 March 2017
Delivered:
30 May 2017
SUMMARY:
Review of award on unfair labour
practice. Record defective. Remitted for fresh arbitration in the
light of
Baloyi v MEC for Health &
Social Development, Limpopo
[2016] 4
BLLR 319
(CC).
JUDGMENT
STEENKAMP
J
Introduction
[1]
This is an application to have
an arbitration award reviewed and set aside. Much of the application
turns on a defective CCMA record
and the application of the
Constitutional Court judgment in
Baloyi
v MEC for Health & Social Development, Limpopo
.
[1]
Background
facts
[2] The
applicant, Ms Veronique Ravat, was employed by the third respondent,
the South African Astronomical Observatory (part of
the National
Research Foundation) as an Information Technology Coordinator. She
worked in the South African Large Telescope (SALT)
Collateral Benefit
Programme.
[3] She
was, firstly, issued with a final written warning, and subsequently
dismissed for misconduct. The final written warning
arose from
disorderly behaviour in that she displayed aggression when
communicating with her superiors; and disrespectful conduct.
She
referred an unfair labour practice dispute to the CCMA. Three months
later she was dismissed for misconduct comprising gross
insubordination and breach of the NRF code of ethics and human
resources policies and procedures. It was found that she had refused
to comply with reasonable and lawful instructions. She also referred
an unfair dismissal dispute to the CCMA. The two disputes
were
consolidated.
Arbitration
award
[4]
Commissioner Bella Goldman, the second respondent, found that the
employee was given reasonable and lawful instructions; that
she
refused to carry them out; and that she had provided no valid reason
for not doing so. The Commissioner found that the employee
had
committed the misconduct complained of and that dismissal was the
appropriate sanction. The dismissal was procedurally and
substantively fair. Having found that, the unfair labour practice
dispute became moot as the employee only required the final written
warning removed if she had been reinstated. For the sake of
completeness, though, the Commissioner did address the final written
warning and found that it was justified.
Grounds
of review
[5] Ms
Ravat challenges the arbitration award on three grounds of review:
5.1
The record is incomplete.
5.2
The Commissioner was biased.
5.3
The Commissioner reached a decision that no reasonable Commissioner
could have reached on the
evidence before her.
Evaluation
[6] I
shall address the first ground of review at the outset, as it is not
possible to consider the other two grounds in the absence
of a
complete record.
[7] The
record is an extensive one. The arbitration ran over 11 days. It was
digitally recorded. The employee had it transcribed.
Unfortunately,
large parts are missing. Even though the parties did attempt to
reconstruct it, it is not disputed that at least
the following
evidence has not been transcribed or adequately reconstructed:
7.1
Part of the employee’s evidence on 7 October 2014. She alleges
that this relates to her
“many appeals for intervention from
December 2013 to July 2014 to various levels of management”.
The evidence is relevant.
7.2
Further cross-examination of Ms Linda Tobin, a witness for the
employer, on 8 October 2014. Although
the Commissioner made notes of
the evidence, it was not recorded. The employee alleges that the
transcript of the record would
have shown that the witness
“misrepresented evidence under oath”.
7.3
The recording for the whole day on 26 January 2015. This includes the
full cross-examination of
another employer witness, Mr Sivuyile
Manxoyi. The employee alleges that this evidence is crucial. It dealt
extensively with allegations
of victimisation; and the employee
alleges that the Commissioner stopped her cross-examination.
7.4
A discussion on 27 January 2015 regarding a request for documents. It
appears that the Commissioner
stopped the recording in order for her
to read certain documentation, but did not switch it on again when
the evidence continued.
7.5
A portion of the cross examination of Ms Buzani Khumalo on 28 January
2015.
7.6
Most of the employee’s evidence on 20 May 2015. The parties did
attempt to reconstructed,
having regard to the Commissioner’s
handwritten notes, but the employee alleges that it is still
incomplete; and that it
is crucial to the allegations against her.
[8] The
failure of the CCMA and bargaining councils to ensure that
arbitration proceedings are properly recorded is unfortunately
not an
isolated one. Our courts have dealt with this vexed problem in
different ways in review application. The constitutional
court
eventually provided some guidance in
Baloyi
.
[9]
Moseneke DCJ, for the majority,
raised the question upfront:
[2]
“What should the Labour Court do when faced with a review
application where the record of the arbitration proceedings sought
to
be reviewed has gone missing, and there is been no proper attempt to
reconstruct it?”
[10] In
this matter, of course, and to their credit, the parties did try to
reconstruct the record. Unfortunately, it appears from
the employee’s
evidence on affidavit, which is not seriously disputed by the
employer, that those efforts have not been sufficient.
What is the
court to do?
[11]
In circumstances where the
Labour Court had ordered the parties to reconstruct the record but,
according to the applicant, the reconstruction
proved impossible, the
Labour Court
[3]
in
Baloyi
nevertheless adjudicated the review application on the merits,
accepting that the Commissioner’s handwritten notes and typed
version constituted a sufficient transcript. Moseneke DCJ, writing
for the majority of the Constitutional Court, criticised this
approach.
[12]
The majority held that the
Labour Court ought at least to have remitted the matter for
rehearing. Moseneke DCJ held:
[4]
“
There
may be cases where it will be contentious to determine a review of
arbitration proceedings in the absence of a record, or
what remedy
should follow when no proper record is available. In this case, it
was improper of the Labour Court to dismiss the
review without a
proper record of the arbitration proceedings in the face of evidence
that no record existed.”
[13] In a
dissenting judgement, Cameron J that the order of the Labour Court
confirming the arbitrator’s award should be confirmed.
That was
because, despite the limping record, he found that the applicant in
his papers before the Labour Court made admissions
about the
arbitrator’s notes which justified his dismissal as not being
substantively or procedurally unfair. But the majority
did not
support that conclusion; and this court is bound by the majority
judgement in
Baloyi
.
[14] On
the evidence before me, this court is faced with a “limping
record” and the efforts to reconstruct it have not
been
successful. As guided by the Constitutional Court, the dispute will
have to be remitted to the CCMA. This is regrettable,
given that the
arbitration took 11 days to complete in the first place. It is not an
outcome that supports the LRA’s object
of expeditious dispute
resolution. But in this case, it appears to me to fall within one of
those cases referred to by Moseneke
DCJ where it would be contentious
to determine the review in the absence of a full record.
Conclusion
[15] The
award must be set aside and remitted to the CCMA due to the defective
record. This state of affairs was brought about through
no fault of
the employer or the employee. In law or fairness, neither of them
should bear the costs of this application.
Order
The
arbitration award of Commissioner Bella Goldman dated 8 June 2015
under case number WECT 8579-14 is reviewed and set aside.
The dispute
is remitted to the CCMA for a fresh arbitration before a different
commissioner.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
In person.
THIRD
RESPONDENT: E Masombuka.
Instructed
by
Adams & Adams.
[1]
[2016] 4
BLLR 319
(CC); (2016) 37
ILJ
549 (CC) [
Baloyi
].
[2]
Baloyi
above
par 1.
[3]
Baloyi v
MEC for Health and Social Development, Limpopo
[2010]
ZALC 282.
[4]
Baloyi
par 36.