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[2019] ZALCCT 22
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National Union of Metal Workers of South Africa and Others v South African Road Passenger Bargaining Council and Others; Mbusi v South African Road Passenger Bargaining Council and Others (C352; C329) [2019] ZALCCT 22 (14 August 2019)
IN THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
Nos: C352 and C329 of 2017
In the consolidated
matters between:
NATIONAL UNION OF
METAL WORKERS
OF SOUTH
AFRICA
First Applicant
B ABRAHAMS & 5
OTHERS
Second to Further Applicants
and
SOUTH AFRICAN ROAD
PASSENGER
BARGAINING
COUNCIL
First Respondent
STEPHEN BHANA
N.O.
Second Respondent
AUTOPAX PASSENGER
SERVICES
Third Respondent
ZUKISANI
MBUSI
Applicant
and
SOUTH AFRICAN ROAD
PASSENGER
BARGAINING
COUNCIL
First Respondent
COMMISSIONER STEPHAN
BHANA N.O.
Second Respondent
AUTOPAX PASSENGER
SERVICE SOC LTD
Third Respondent
Date heard: 19
June 2019
Delivered:
14 August 2019
JUDGMENT
RABKIN-NAICKER, J
[1]
The Arbitration Award that is sought to be reviewed in the above
matters
[1]
, was handed down on
the 24 March 2017. The applicants before the arbitrator were
drivers of buses carrying passengers between
Pretoria and Cape Town.
The Arbitrator made the following award:
“
The
applicants’ dismissal was substantively fair. The application
for relief is hereby dismissed.”
[2]
The Award in question does not have numbered paragraphs and the
“Background to the Dispute and
Evidence” is contained
under one heading. In his analysis of the evidence, the Arbitrator
stated the following:
“
It
is common cause that the applicants did not drive their return
journeys from Pretoria to Cape Town. The union’s defence
was
twofold i.e. there was no instruction to drive and secondly that they
were not well rested to drive. The first defence is unsustainable
in
that it is the norm to drive to and from Pretoria as one instruction.
In this scenario, the roster acts as the specific instruction.
There
was thus an instruction to drive both legs of the trip before they
left Cape Town, which they did not comply with.
The
applicants, by means of their witnesses, tried to prove that there
was noise which prevented them from resting. The video shown
is
inconclusive as it was not made when they were there or by
themselves. The author of the video could not recall when he made
it.
Furthermore the source of the noise cannot be determined and as the
company witness pointed out, the window was opened to explanation
of
being show noise. The video is thus not reliable evidence.
The
union’s witnesses were not very credible. Parts of their
versions were never put to the company witness and thus have
very
little weight. In addition they could not dispute that only six of
them out of a total of 33 people have complained about
the noise.
Their own witnesses had complied and driven back. These witnesses’
explanation of being afraid to be suspended
if they complained is
utterly without foundation. There was no uniformity about the cause
of the noise. The notion that it might
have been a geyser was not
proven. Surely if they thought that it was the cause, someone should
have found the noisy geyser. Also
it is unlikely a geyser would be
stored inside a flat roofed structure.
The
respondent’s version was more credible and probable and it had
proven that the applicants were guilty of the allegations
on the
balance of probabilities. Given the level of trust that is inherent
in the job, I can see no reason to interfere with the
sanction and
thus I find the dismissal to be fair. In the light of this I
furthermore see no reason to deal with Mr. Abraham’s
from the
arbitration separately
[2]
.”
[3]
The arbitration was heard on the 11
th
November 2016, and 2
and 3 March 2017. The digital recording of the proceedings did not
function. The only record of the proceedings
before this Court are
hand written notes by the Arbitrator and a document entitled
‘reconstructive transcript’ which
was compiled to agree
the atyped version of those minutes. This was done in a meeting
between the third respondent’s HR manager
and the applicants’
union official, together with the applicants on March 8 2017. On the
17 September 2017 a directive was
issued by the late Judge Steenkamp
that the parties should meet to reconstruct the record. The
‘reconstructive transcript’
was filed on the 29 May 2018.
There is no indication that any attempt was made to meet with the
Arbitrator.
[4]
The issue of the scanty nature of the record was raised by the
applicant in case number C329/17. The
third respondent’s
attitude is well summarized in its submissions on this issue, which I
record as follows:
“
During
the reconstruction proceedings, Applicant and/or his legal
representative had the opportunity to address issues and evidence
that had been led but may not have been included in Second
Respondent’s notes in order for the parties to reach agreement
in respect thereof or for it to be placed on record whether the
presentation of certain evidence was in dispute. As the applicant
in
the review application, it was Applicant’s responsibility to
ensure that he placed the best record before this Honourable
Court.
However, neither Applicant nor his legal representative raised the
issues that he attempts relying upon in his supplementary
affidavit
during the reconstruction proceedings. Applicant therefore failed to
utilize the opportunity afforded to him to fully
address ay alleged
deficiencies in the record and did not take all the reasonable steps
to ensure that a record as complete as
possible is placed before this
Honourable Court. It is submitted that Applicant’s attempt to
now rely on alleged deficiencies
in the record in an attempt to
bolster his review application is purely opportunistic. Accordingly,
any prejudice allegedly suffered
by Applicant (which Third Respondent
denies) is as a result of his failure to fully utilize the
opportunity afforded to him and
is as a result of his own conduct.”
[4]
The third respondent cites
Lifecare
Special Health Services (Pty) Ltd t/a Ekuhlengani Care Centre v CCMA
& Others
[3]
as a footnote to the above submissions and in particular paragraph 17
of that Judgment, which reads as follows:
“
[17]
A reconstruction of a record (or part thereof) is usually undertaken
in the following way. The tribunal (in this case the commissioner)
and the representatives (in this case Ms Reddy for the employee and
Mr Mbelengwa for the employer) come together, bringing their
extant
notes and such other documentation as may be relevant. They then
endeavour to the best of their ability and recollection
to
reconstruct as full and accurate a record of the proceedings as the
circumstances allow. This is then placed before the relevant
court
with such reservations as the participants may wish to note. Whether
the product of their endeavours is adequate for the
purpose of the
appeal or review is for the court hearing same to decide, after
listening to argument in the event of a dispute
as to accuracy or
completeness.”
[5]
From the quotation above, it was perfectly in order for the applicant
in C329/2017 to note his concerns
about the record. In addition,
Lifecare’s dictum that it is the Court that must decide on the
adequacy of the record in a
review application in this Court, has
been underscored by the Constitutional Court per Moseneke DCJ (as he
then was) in
Baloyi
v Member of the Executive Committee for Health & Social
Development, Limpopo & others
[4]
as follows:
“
[28]
At some stage, the Labour Court ordered the parties to reconstruct
the record of the arbitration proceedings. According to
the
applicant, the reconstruction proved impossible. The applicant says
that the arbitrator then delivered to the registrar his
handwritten
notes without consulting him. Those were later typed out and filed in
the Labour Court. The result was that the court
had both the
handwritten and typed versions of the notes. The applicant says that
he disputed those of the arbitrator's notes in
which the arbitrator
recorded that he had made certain concessions. Of this, the Labour
Court noted that the applicant 'had the
opportunity when filing his
initial supplementary affidavit with the transcript of the
proceedings, to deal with the correctness
of the arbitrator's notes
containing the concessions. Instead, he elected to stand by his
founding affidavit and filed the notes
with the concessions'.
[29] Despite
acknowledging the applicant's objections, the Labour Court felt it
apt to adjudicate the review application on the
merits even though
there was no complete record of the arbitration proceedings before
it. It seems to have accepted that the handwritten
notes and typed
version constituted a transcript of the arbitration proceedings. It
dealt with the matter as if it had the complete
record of the
proceedings…
[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. This presents
this court with a choice: we can send
the matter back for rehearing before another arbitrator, which will
be cumbersome and unduly
hard on the applicant, or intervene on the
merits now…”
[6]
In these applications, the Court is dealing with a dispute that led
to the dismissal
of several employees. At issue was whether long
distance bus drivers could refuse to obey an instruction to report
for duty when
they alleged they were not rested enough to drive. The
matter before me does not only concern the parties to the dispute,
but also
the wider public who are passengers on these buses. It
appears to the Court that in such a situation it is not apt for it to
make
a decision on review without a proper record of the proceedings.
It would be in the interests of all parties to the dispute, and
in
the public interest, for the dispute to be arbitrated anew, even
though this will mean a delay in the finality of the matter.
[7]
For the above reasons, I grant the condonation applications sought in
these reviews
and make the following order:
Order
1.
The arbitration award under case number
RPNT3675 is hereby reviewed and set aside.
2.
The dispute is remitted to the SARPBC for
rehearing before an arbitrator other than S. Bhana N.O.
_________________
H. Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicants: ML Davis
instructed by Van Rooi Attorneys
Numsa
Third
Respondent: Maserumule Attorneys
[1]
Consolidated
by order of this Court on 5/2/19
[2]
Abrahams
was not present at the arbitration but was one of the employees who
referred the dispute.
[3]
(2003)
24 ILJ 931 (LAC)
[4]
(2016)
37 ILJ 549 (CC)