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[2017] ZALCCT 28
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Betafence South Africa (Pty) Ltd v CCMA and Others (C911/15) [2017] ZALCCT 28 (20 June 2017)
Not
reportable
Of interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 911/15
In
the matter between:
BETAFENCE
SOUTH AFRICA (PTY) LTD
Applicant
and
CCMA
First Respondent
E
EDWARDS N.O.
Second Respondent
ELMARIE
MOSTERT
Third Respondent
Heard
:
4 May 2017
Delivered
:
20 June 2017
Summary:
Review – record incomplete –
Baloyi v MEC: Health &
Social Development
followed – remitted to CCMA for fresh
hearing.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The third respondent, Elmarie Mostert, was employed by the applicant,
Betafence South Africa (Pty) Ltd. She resigned. She referred
a
dispute to the CCMA (the first respondent), claiming constructive
dismissal. The arbitrator, Commissioner Elridge Edwards (the
second
respondent), found in her favour. He ordered Betafence to pay her
compensation.
[2]
Betafence seeks to have the
award reviewed and set aside. It argues that the decision of the
arbitrator was one that a reasonable
decision-maker could not
reach.
[1]
But there is a prior issue, and that is that the record is incomplete
– sadly not an isolated occurrence, as pointed out
by the
Constitutional Court in
Baloyi
.
[2]
Background
facts
[3]
Ms Mostert was employed as an Internal Sales Office and Customer
Service Manager. She earned a basic salary plus commission.
She
resigned on 2 December 2014. She referred a dispute to the CCMA
alleging constructive dismissal, an unfair labour practice
and unfair
discrimination (victimisation). She alleged that Michael James, the
commercial manager, withdrew her commission and
victimised her which
ultimately resulted in her concluding that she had no alternative but
to resign.
[4]
The arbitrator heard the
evidence of Ms Mostert and, on behalf of the company, that of Messrs
Gustav Bothma, Gene Wegener, Michael
James, and Miko Kriel. With
regard to the allegation of constructive dismissal in terms of s
186(1)(e) of the LRA
[3]
,
he correctly pointed out that the employee bore the onus of proving
that the company had made her continued employment intolerable.
He
concluded that she did. The events over a number of months culminated
in her coming to a point where she could not continue
the employment
relationship any longer. She persevered knowing that she had
responsibilities and hoping that circumstances would
change but they
did not. He found that the employee was constructively dismissed as
contemplated by s 186(1)(e); that it came about
as a result of the
company’s unfair conduct; and that she was unfairly dismissed.
He ordered the company to pay her the equivalent
of six months’
remuneration as well as her outstanding commission.
[5]
The arbitrator further found
that the employee was not victimised in terms of 6(3) of the
Employment Equity Act
[4]
;
and that she had not established an unfair labour practice in terms
of s 186(2)(b) of the LRA. He did not make any order as to
costs.
Review
grounds
[6]
The company initially alleged that the Commissioner committed a gross
irregularity by failing to take into consideration the
true facts as
established by the evidence; and by reaching a conclusion that no
reasonable arbitrator could reach.
[7]
Once the application for review had been delivered, though, things
went awry. The CCMA purported to comply with rule 7A(3) on
30
November 2015 by filing the record. However, when the company
collected the purported record, it contained only the bundles
of the
parties used at the arbitration and not the audio recordings of the
arbitration proceedings. The company’s representatives
wrote to
the registrar and to the CCMA. Eventually, on 23 February 2016, the
CCMA filed another notice purportedly in compliance
with rules 7A(3)
and 7A(2)(b). Attached to the notice was an affidavit by Commissioner
Edwards that the audio recording had been
lost. He stated: “I
was under the impression that I had downloaded the audio recordings
of the arbitration hearing in the
matter onto a flash drive and then
transferred it to the server in the archives department at the CCMA.
I have searched but have
not located the recordings.” He
surmised that the flash drive was in his laptop bag that had been
stolen out of his car.
[8]
The company then asked for the Commissioner’s hand written
notes. Two months later, it had not received a response from
the
Commissioner or the CCMA. It wrote to the CCMA again on 25 April 2016
and requested that the matter be set down for reconstruction
of the
record with the Commissioner. The employee’s attorney also
wrote to the registrar where he stated that “to
attempt
to reconstruct the record of a four to five day trial [
sic
] to
such an extent that [the Labour Court] can apply its mind on the
issue, with certainty, is almost, if not at all, impossible…”.
[9]
The employee launched an application in terms of rule 11 to have the
review application dismissed. The court ordered that the
CCMA convene
a reconstruction meeting with the Commissioner and with the parties’
representatives; and ordered the Commissioner
to provide both parties
with copies of his handwritten notes. When the meeting was convened,
it transpired that the Commissioner
did not have any handwritten
notes. It became impossible to reconstruct the record.
[10]
The applicant then raised a further ground of review that the award
should be reviewed and set aside because of the missing
record, and
the dispute remitted to the CCMA. In the absence of a record, it
could not deliver further notices in terms of rule
7A(6) and 7A(8).
Evaluation
/ Analysis
[11]
I shall, firstly, deal with the issue of the missing record. The
Court needs to decide whether it can decide the merits of
the review
application, given the limping record. If not, the dispute will
unfortunately have to be remitted to the CCMA –
a lengthy and
costly alternative that was not envisaged by the drafters of the LRA
when they designed what should have been a quick
and cheap dispute
resolution process.
[12]
In
Baloyi
[5]
the majority of the Constitutional Court gave the following guidance:
“
[36]
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.
“
[40]
First, the Labour Court should have remitted the matter to the
Bargaining
Council as proposed by the arbitrator and the Bargaining
Council itself. The mechanical recordings of the arbitration
had
been misplaced and could not be traced. This meant that the
arbitration proceedings would commence afresh before a different
arbitrator.”
[13]
The minority [per Cameron J]
[6]
had a different view, but this Court is bound by the majority
judgment:
“
[58]
What should the Labour Court do when faced with a review application
where the record of the arbitration proceedings sought to be reviewed
is incomplete? The adverse consequences to the applicant’s
right of access to courts and to fair practices are plain.
Regrettably, incomplete, patched-up records caused by faulty
mechanical equipment or lost tape recordings are not uncommon.
But it is rarely appropriate for a court to proceed on
patch work
where the parties have not tried to reconstruct as full and as
accurate a record of the proceedings as the circumstances
allow.
There may be circumstances where a court is able to scrutinise the
arbitrator’s award plus all the documentary
evidence, including
the arbitrator’s transcribed handwritten notes and the
applicant’s supplementary affidavits, to
determine whether the
decision should be set aside.”
[14]
In this case, to their credit, the parties have tried to reconstruct
the record. But even so, it is incomplete to the extent
that this
Court cannot properly decide on the merits of the review application.
There is, quite simply, no record at all.
[15]
The arbitration proceeded for five days. The applicant simply cannot
amplify its review grounds without the record. Neither
can it argue
the merits of its review application in full; nor can the court
properly applied mind to the initial grounds of review
is without
being able to consider the evidence that served before the
arbitrator.
[16]
In the absence of any record – not even the Commissioner’s
handwritten notes – the parties have not been
able to
reconstruct the record. That is despite a previous order of this
court ordering the Commissioner to assist the parties.
In those
circumstances, it is simply impossible to consider the review
application on the merits. The only solution is to follow
the
guidance of the constitutional court in
Baloyi
and to remit
the dispute to the CCMA. This is regrettable. It is not what the
drafters of the LRA had in mind. And neither of the
parties can be
blamed. But it is the only solution open to this court.
Conclusion
[17]
Because of the incomplete record, the dispute will regrettably have
to be referred back to the CCMA to have it decided afresh.
In those
circumstances, a costs award is not warranted in law or fairness.
Neither of the parties can be blamed for the delay;
and both will
regrettably have to incur further costs.
Order
The
dispute is remitted to the CCMA for a fresh arbitration before a
commissioner other than the second respondent.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Bridgette
Mokoetle of SEIFSA
(employers’
organisation).
THIRD RESPONDENT:
Anton
van Loggerenberg
Instructed by Awie Viljoen.
[1]
Sidumo v
Rustenburg Platinum Mines Ltd
(2007)
28
ILJ
2405
(CC).
[2]
Baloyi v MEC for Health &
Social Development, Limpopo
(2016)
37
ILJ
549 (CC);
2016 (4) BCLR 443
(CC);
[2016] 4 BLLR 319
(CC) par 58.
[3]
Labour
Relations Act 66 of 1995
.
[4]
Act 55 of
1998 [EEA].
[5]
Above paras
36 and 40.
[6]
At para 58.