IN THE LABOUR COURT OF SOUTH AFRICA
CASE NO: J4051/00
In the matter between:
Applicant
and
COMMISSION FOR CONCILIATION,
First Respondent
Second Respondent
Third Respondent
JUDGMENT
FRANCIS J
Introduction
1. This is an application brought in terms of section 145 of the Labour Relations Act
66 of 1995 (“the Act”), for the review of an award made by the second respondent
(“the commissioner”) under the auspices of the first respondent (“the CCMA”)
wherein the commissioner found that the applicant’s dismissal of the third
respondent for misconduct (alcohol abuse, sleeping on duty and neglect of duty)
was both substantively and procedurally unfair and ordered his reinstatement with
full retrospective effect.
2. The third respondent opposed the application. The papers filed with this Court
comprises inter alia , founding, supplementary and answering affidavits, and the
bundle of documents and written submissions submitted to the commissioner.
There is no transcription of the tape recording of the arbitration proceedings and
no handwritten record thereof as either the CCMA or the commissioner has lost
them.
Background facts
3. Prior to his dismissal, the third respondent was employed by the applicant as a
sales manager at its Midrand store.
4. The events that led to the third respondent’s dismissal occurred during the evening
of 7 and the morning of 8 November 1998, over which period the third respondent
worked night shift and was in overall charge of the store.
5. The third respondent was called to attend a disciplinary enquiry on the following
charges:
“1. Gross misconduct in that it is alleged by management that you slept in the store
while on duty, and also that you were under the influence of alcohol for the period
of your shift.
11. Poor performance in that on Sunday 8/11/98 you allowed the nightshift to clock
out and leave the store prior to the end of the shift while knowing that the sales
floor and stock room was not up to the standard as required by store management
and the company standards respectively.”
6. On 17 November 1998, and at the conclusion of the enquiry, the third respondent
was dismissed after having been found guilty as charged, which decision was
subsequently upheld on appeal.
7. Further to the third respondent having invoked the statutory disputeresolution
procedures, the matter proceeded to arbitration before the commissioner on 19
June 2000.
8. Both the substantive and procedural fairness of the third respondent’s dismissal
was in dispute before the commissioner. The applicant called two witnesses
(Ronald Sadiki, a shelf packer, and Bernard Jean Pierre, the receiving manager)
while the third respondent testified on his own behalf.
9. The commissioner found in the arbitration award that the third respondent’s
dismissal was substantively and procedurally unfair and ordered that he be
reinstated with full retrospective effect. It is this award that the applicant is
seeking to review.
Absence of a record
10. It is common cause that the record of the arbitration proceedings is lost. Marian
Harrison who represented the applicant at the arbitration proceedings did not keep
notes in the knowledge that the proceedings were being recorded by the
commissioner. I was informed from the bar that the third respondent might be in
possession of some notes. Those notes will not be adequate to assist the applicant
in reconstructing the record. They are scant. The applicant is unable to
reconstruct the record. I also fear that a reconstruction of the record in the present
proceedings will prove to be counter productive. There is every prospect that it
will produce a host of new disputes. No purpose will be served to let the applicant
reconstruct the record.
11. The issue about the absence of a record has arisen in this Court before. I am of the
view that in some review applications, a record of the arbitration proceedings may
not strictly speaking be necessary. An irregularity may be so patent from the
award that a record might not be necessary. A further example is where it is
common cause between the parties that the commissioner refused cross
examination or to swear in witnesses.
12. When this Court exercises its powers of review under section 145 of the Act, the
point of departure for any debate concerning challenges made to the conduct of a
commissioner is what was before the commissioner during the proceedings. What
was before the commissioner, is constituted by the record of the proceedings. I
am of the view that in this review, it is crucial that a record of the proceedings
should have been made available. I am not able to apply my mind properly in this
application without having regard to a record of the proceedings.
13. Mr Graham, who appeared for the third respondent, urged me to dismiss the
application on the grounds that the applicant has failed to make the record
available. In support of this contention he relied on the decision in JDG Trading
(Pty) Ltd t/a Russels v Witcher NO & Others (2001) 22 ILJ (LAC) at 650 G to H.
The LAC held that in the absence of the transcribed proceedings before the
commissioner, the court a quo was in no position to adjudicate properly on the
application before it and ought to accordingly to have dismissed it. The LAC
found that the court a quo was not entitled to have interfered at all with the order
made by the commissioner. The appeal succeeded.
14. The facts in JDG Trading (Pty.) t/a Russell v Watcher NO and Others are clearly
distinguishable from the present matter. In the aforesaid matter, the notes of the
proceedings and six recorded cassette tapes of the arbitration proceedings as well
as a bundle of documents submitted at the arbitration hearing was filed with the
Registrar. filed. The applicant had failed to have either the handwritten record or
the tapes transcribed. In the present matter, the recorded cassettes and handwritten
notes of the commissioner were lost. It was not placed in dispute that the
applicant was unable to reconstruct the record of the proceedings. It is not the
applicant’s fault that the record and transcript of the proceedings are lost. It will
be unfair to dismiss the application as since it was not the applicant’s fault that no
record could be provided.
15. The question that remains is whether I should refer the matter back to the CCMA
for a hearing de novo. In the matter of UeeDantes Explosives (Pty) Ltd v Maseko
& Others [2000] 7 BLLR 842 (LC), I referred a matter back to the CCMA after
the record and handwritten notes were not found. See also Department of Justice
v Hartzenberg [2001] 9 BLLR (LAC).
16. When deciding to refer the matter back to the CCMA one must consider not only
the interest of the third respondent but those of the applicant as well. The choice
is either to let the award in the third respondent’s favour stand, or to set it aside
and to refer the matter for a hearing de novo. If the award is allowed to stand, then
the applicant’s right of review will be completely frustrated, thereby prejudicing
it. A remittal, on the other hand, will deprive the third respondent of his award
and will lead to the parties incurring more costs. This may be especially hard on
the third respondent, who is an individual and who may not be possessed of
adequate funds. Mr Graham submitted that his client would be unduly prejudiced
by a remittal.
17. As stated above, it was not the applicant’s fault that the cassette tapes and
handwritten notes were lost. The responsibility for their safekeeping rests on the
CCMA. On balance, however, it appears to me that the applicant’s right of review
is the overriding consideration. If the matter is remitted for a de novo hearing the
third respondent may prove his case once again, in which event his position will
be safeguarded. But if the review application is dismissed, the applicant will lose
the opportunity of persuading this Court that the commissioner committed
irregularities. It will be faced with a liability in compensation and with a finding
that it dismissed the third respondent substantively and procedurally unfairly, a
result which might not have been sustained on review. It is always unfortunate
when a matter has to be remitted, but it seems to me to represent the lesser
inequity.
18. This is not a matter where I should award costs against one of the parties.
19. In the circumstances the following order is made:
1. The arbitration award of the second respondent made on 1 July 2000 under
CCMA case number GA 56114, is hereby reviewed and set aside.
2. The dispute is referred back to the first respondent to be heard by another
commissioner other than the second respondent.
3. There is no order as to costs.
FRANCIS J
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
FOR THE APPLICANT : A T MYBURGH INSTRUCTED BY DENEYS REITZ
ATTORNEYS
FOR THE THIRD RESPONDENT : D G GRAHAM INSTRUCTED BY JOSE NASCIMENTO
ATTORNEYS
DATE OF HEARING : 18 APRIL 2002
DATE OF JUDGMENT : 24 APRIL 2002