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[2015] ZACC 39
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Baloyi v Member of the Executive Committee for Health and Social Development, Limpopo and Others (CCT227/14) [2015] ZACC 39; (2016) 37 ILJ 549 (CC); 2016 (4) BCLR 443 (CC); [2016] 4 BLLR 319 (CC) (10 December 2015)
Links to summary
Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 227/14
In the matter
between:
GEZANI JULIUS
BALOYI
Applicant
and
MEMBER OF THE EXECUTIVE
COMMITTEE
FOR HEALTH AND
SOCIAL
DEVELOPMENT,
First Respondent
LIMPOPO
HEAD OF THE DEPARTMENT
FOR HEALTH
AND SOCIAL
DEVELOPMENT,
LIMPOPO
Second Respondent
PUBLIC HEALTH AND
WELFARE SECTORAL
BARGAINING
COUNCIL
Third Respondent
DENGA MULIMA
N.O.
Fourth Respondent
Neutral
citation:
Baloyi
v Member of the Executive Committee for Health and Social
Development, Limpopo and Others
[2015]
ZACC 39
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J,
Jafta J, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J, Theron AJ
and Tshiqi
AJ
Judgments:
Moseneke DCJ (majority): [1] to [45]
Froneman J (dissenting): [46] to [51]
Cameron J (dissenting): [52] to [75]
Decided on:
10 December 2015
Summary:
unfair dismissal claim —
arbitration — incomplete record — remittal inappropriate
— reinstatement from date
of dismissal
ORDER
On appeal from the Labour
Court:
1.
Condonation and leave to appeal are granted.
2.
The appeal succeeds with costs.
3.
The order in the Labour Court is replaced with the following:
(a)
The arbitrator’s award is reviewed and set aside.
(b)
The applicant is reinstated in his former position of employment with
effect from the date
of his dismissal.
(c)
The respondents must pay the costs of the application.
JUDGMENT
MOSENEKE DCJ (Mogoeng
CJ, Jafta J, Khampepe J, Nkabinde J, Theron AJ and Tshiqi AJ
concurring):
Introduction
[1]
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 has
been no proper attempt to reconstruct it? That is the primary
question in this application
for leave to appeal. The applicant
also complains that he has been unjustly dismissed and that the
arbitrator’s decision
confirming his dismissal should in any
event be reviewed and set aside on the merits. But, logically,
that assertion can
only be determined if an accurate record of the
arbitration proceedings is available.
[2]
This judgment follows after the following
directions were issued by this Court on 17 March 2015:
“
1.
The respondents are invited to file opposing affidavits, if they so
choose, by Tuesday
7 April 2015.
2.
Written argument, including argument on the merits of the appeal,
must be lodged
by―
(a)
the applicant, on or before 17 April 2015; and
(b)
the respondents, on or before 22 April 2015.
3.
Further directions may be issued.”
None of the
respondents filed affidavits or written submissions – only the
applicant did so.
Background and the
disciplinary hearing
[3]
In 1987, the applicant was employed as a
learner artisan by the Department of Health and Social Development,
Limpopo (Department)
at the Malamulele Hospital (Hospital).
Later, he was promoted to the position of artisan foreman in the same
Hospital.
In 2003 he was promoted to the position of senior
artisan superintendent at Mankweng Hospital, Limpopo, which also fell
under the
Department.
[4]
In March 2004, he was charged with
misconduct and a disciplinary hearing was held. This was about
three years after the alleged
misconduct; the charges arose from his
alleged role in connection with arrangements for servicing
incinerators in various clinics
in Limpopo in about May 2001 while he
was employed at the Hospital.
[5]
Three charges were brought. The first
was that the applicant initiated a requisition for labour – the
repair and service
of eight waste incinerators at the clinics –
that the Department did not need. His defence was that a
certain Dr Wasilota,
the superintendent of the Hospital at the time,
had instructed him to generate a requisition for service providers to
repair incinerators,
which had not been used since delivery in 1997.
Accordingly, the applicant’s defence in the disciplinary
hearing and
up to now is that he did not commit misconduct as he
carried out Dr Wasilota’s instruction. He also says he
requested
at the hearing that Dr Wasilota be called as a witness so
that he could confirm or deny this instruction. However, the
Head
of the Department gave an instruction that Dr Wasilota should
not testify because his evidence would undermine or prejudice the
Department’s case. The applicant says he testified to
this effect in the disciplinary hearing and his evidence was
not
controverted.
[6]
The applicant says that, in any event, the
witnesses who testified about the condition of the incinerators in
the various clinics
stated that the incinerators were either in great
need of service or repairs, or had never been serviced despite the
fact that
they had not been used for a period of more than four
years. Again, the applicant indicates that this evidence was
not contested.
[7]
There was an alternative charge to the
first charge, namely that the applicant authorised payment to
Prominent Medical Supplies
CC (the supplier) for repairs to the
incinerators that were not effected. However, the applicant
says he testified that he
did not authorise this payment, but that
Matron Chauke did after a certain Mr Mathebula had prepared and
signed the purchasing
order. The applicant pointed out that he
was off sick when this payment was authorised. On his return
from sick leave
the applicant signed the store register, which
confirmed that the supplier had completed the work. The
applicant says he
testified that he routinely signed the store
register if Mr Mathebula had already signed and captured the invoice
and Matron Chauke
had already authorised payment.
[8]
The applicant says that this evidence was
also not contradicted. On the contrary, it appears it was
supported by the evidence
of Matron Chauke, as she confirmed that she
was the one who had authorised the payment. The applicant did,
however, acknowledge
that signing the store register was a
“mistake”. The applicant submits that, as with Dr
Wasilota, Mr Mathebula
was instructed by the Head of the Department
not to give evidence.
[9]
The second charge was that the applicant
confirmed delivery of the repair services by the supplier knowing
that the services were
never rendered. The applicant denies
that he did so. Again, although he admits to signing the store
register, which
confirmed that the supplier had completed the work,
he says he relied on the authority of Mr Mathebula and Matron Chauke
who had
already signed and captured the invoice for payment. He
further argues that no evidence was placed before the disciplinary
hearing proving this allegation.
[10]
The third charge was that the applicant
authorised payment of R40 675 to the supplier for services not
rendered, and non-performance
was confirmed by the supplier.
The allegation on which this charge rested was that the applicant
authorised the payment knowing
that the company had not rendered the
services. The applicant’s defence here was the same as in
relation to the alternative
to the first charge: Matron Chauke,
and not he, authorised the payment after Mr Mathebula had prepared
and signed the purchase
order.
[11]
The applicant avers that he called an
employee of the supplier as a witness in support of his case, but the
chairperson of the disciplinary
hearing refused to allow this witness
to testify. The applicant does not say what reason the
chairperson gave.
[12]
He adds that after he learnt that payment
had been made to the supplier but the services had not been rendered,
he contacted the
supplier. After further investigation, the
supplier acknowledged to him that the services had not been rendered.
The
supplier offered to repay the money in monthly instalments
of R3 000. The applicant says the Department never took
advantage
of this offer.
[13]
The applicant says that despite the paucity
of senior hospital employees as witnesses, and the failure of the
witnesses to incriminate
him, the chairperson found him guilty and
dismissed him. It is not clear whether the chairperson found
the applicant guilty
of all the charges or only of some, but on 19
February 2005 the applicant was dismissed. The applicant does
not say what
reasons the chairperson gave for his finding and
sanction. The applicant lodged an internal appeal, but this was
dismissed
on 3 June 2005.
[14]
On what is before us, there being no
affidavits on behalf of the Department, it appears uncontroverted
that the chairperson may
have committed a gross irregularity.
This is evident both in his refusal to allow the applicant’s
witness from the
supplier to testify, and in allowing the Head of the
Department to prevent Dr Wasilota and Mr Mathebula from
testifying as
their evidence was relevant and important.
Arbitration
[15]
After his dismissal, the applicant
requested the Public Health and Welfare Sectoral Bargaining Council
(Bargaining Council) to arbitrate
an unfair dismissal dispute with
the Department.
[16]
The arbitration was conducted by Mr Denga
Mulima (the arbitrator) under the auspices of the Bargaining
Council. The Bargaining
Council and the arbitrator are,
respectively, the third and fourth respondents before this Court.
The hearing started on
23 November 2005 and was completed on 5
January 2006. The award was issued on 10 January 2006.
The applicant attached
a copy of the award to his founding affidavit
in this Court.
[17]
The applicant says that the Department
called eight witnesses who gave evidence. The evidence was
along the same lines as
that proffered at the disciplinary hearing.
According to him, it did not implicate him in any wrongdoing.
The evidence
he gave was to the same effect as at the disciplinary
hearing.
[18]
In his award, the arbitrator found the
applicant “to have acted outside the parameters set by the
employer, the standard that
there [was] no doubt he [was] aware and
[had] been practising . . . for years”. He then said of
the applicant:
“
Thus
he was aware that he should have identified the need of servicing the
incinerators, the responsibility of which solely falls
. . . directly
under his responsibility. I have noted the untested instruction
by Dr Wasilota, however such instruction could
not take away his
responsibility. Instead, he should have advised the medical
superintendent (Dr Wasilota) that the incinerators
do not need any
service except one that needed repairs.”
[19]
The applicant complains that the arbitrator
found him guilty of misconduct of which he had wrongly been charged.
He was charged
with initiating the process for the repair of the
incinerators and his defence was that he did so to comply with a
lawful instruction
from Dr Wasilota. It is indeed not clear
from the arbitrator’s award which charges he found to have been
proved and
which not. One would have expected the arbitrator to
make this clear, as this would have facilitated an understanding of
his reasons for the award.
[20]
The arbitrator concluded:
“
In
totality of the facts in this case, there is nothing that I find to
show or suggest on the balance of probabilities that the
applicant
did not act wrongly.”
This is not the
question the arbitrator should have asked himself. The onus to
prove that the dismissal was fair was on the
employer. The
question he should have asked was whether the Department had proved
that the dismissal was fair, or whether
it had proved that the
applicant had committed misconduct and that in all the circumstances
dismissal was a fair sanction.
[21]
The arbitrator recorded that the applicant
complained that the dismissal was procedurally unfair because he was
deprived of the
opportunity to put questions to or cross-examine
certain witnesses in the employ of the Department. The
arbitrator pointed
out that employers should take account of item
4(1) of the Code of Good Practice: Dismissal contained in Schedule 8
of the Labour
Relations Act
[1]
(Act). He then mentioned the basic rules in misconduct
dismissals:
“
The accused employee must be afforded the
opportunity to ask questions in cross examination to the
witnesses of the employer.
In casu
there is no evidence that . . . the applicant was denied or refused
an opportunity to cross-examine the witnesses of the employer.
Thus to all the witnesses the employer called to build up their
cases, there were questions asked by the applicant’s
representatives,
cross-examining them. The applicant preferred
that the employer should have called certain witnesses beyond those
he cross-examined.
There is no duty on the employer party to
call those witnesses preferred by the applicant party. It is on
this basis that
I do not find any unfairness to support [the]
allegations by the applicant.”
[22]
It is true that in the disciplinary
hearing, the applicant was allowed to cross examine every
witness the Department called.
However, properly understood,
this was not the applicant’s complaint on procedural fairness.
His complaint was
that he was denied the opportunity to
cross-examine the Department’s witnesses whom he requested
should be brought to the
hearing, and who were not brought. Those
witnesses were Dr Wasilota and Mr Mathebula.
[23]
It is unclear from the papers before this
Court whether the applicant attempted to call these witnesses himself
and, if so, whether
the Department’s alleged instruction to
them not to testify still stood. If one looks at the
arbitrator’s summary
of the evidence by the Department’s
witnesses, none testified about procedural fairness. The
arbitrator did not deal
with the applicant’s procedural
complaints. If he had, on the applicant’s version, he may
have concluded that
the dismissal was procedurally unfair.
[24]
With regard to the substantive fairness of
the dismissal, it seems open to question whether the alleged
misconduct of which the
arbitrator found the applicant guilty had
been proven. Even if we assume that the arbitrator was
justified in finding as
he did, it would not follow that dismissal
was necessarily a fair sanction. This is especially so when one
considers that
the applicant was an employee of the Department for 19
years with no evidence of previous misconduct.
[25]
All this suggests that the dismissal should
have been held to be unfair. But this did not happen.
Labour Court
[26]
The applicant brought an application in the
Labour Court to review and set aside the arbitrator’s
award. His troubles
were only starting. Over a long
period, the arbitrator and the Bargaining Council failed to deliver
the record of the proceedings
to the Registrar of the Labour Court.
The hearing of the review was postponed a few times because of this
failure.
The applicant brought an application for an order
compelling the arbitrator and the Bargaining Council to deliver the
record.
This was granted.
[27]
There seems to have been a long delay
thereafter before the Bargaining Council filed an affidavit in
response to the order.
In the affidavit, it said that the
arbitrator had misplaced the mechanical recording and, therefore, it
could not deliver the transcript.
It also said that it would
have no objection if the arbitration award were set aside and
the dispute were remitted to another
arbitrator to arbitrate it
afresh. The respondents did not oppose the review application.
[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.”
[2]
[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.
This was in the face of an affidavit filed by the Bargaining Council
and the arbitrator that the record was not available and that, hence,
they had no objection to the award being set aside.
The Court
made no reference to this. The Court instead held the applicant
to the alleged concessions recorded in the arbitrator’s
notes,
despite the fact that the applicant disputed them. It dismissed
the review application.
Labour Appeal Court and
Supreme Court of Appeal
[30]
The applicant petitioned the Labour Appeal
Court for leave to appeal, but that petition was dismissed. A
petition for leave
to appeal to the Supreme Court of Appeal was also
dismissed on 15 October 2013.
In this Court
[31]
The application was about 13 months late.
The delay appears excessive. But there are mitigating
circumstances.
These are that the applicant and his Pretoria
attorneys were not aware that the Supreme Court of Appeal had already
issued its
order and became aware of it only in about November 2014.
[32]
This was not the first time that the
applicant was let down by an attorney. There was a delay of
about 19 months in the lodging
of his application for leave to appeal
against the Labour Court judgment. That Court accepted the
applicant’s explanation
that he had been misled by his then
attorney of record about whether the review judgment had been handed
down, and later about
the procedure to be followed in an application
for leave to appeal.
[33]
Although the full truth of the matter is
difficult to piece together without the complete record, and without
evidence or submissions
from the respondents, the applicant deserves
better than the treatment he has received thus far. On his
version, uncontradicted
and unopposed before us, almost everybody has
failed him in some way or another.
[34]
For present purposes, it is sufficient to
restrict ourselves to the Labour Court’s decision to decide the
review application
without obtaining a proper record of the
arbitration proceedings. The Labour Court paid no apparent heed
to the Bargaining Council’s
affidavit that no record of
the arbitration proceedings was available and that it and the
arbitrator had no objection to a remittal
for rehearing.
[35]
Nor did it appear to merit any mention that
the first and second respondents, the Member of the Executive
Committee for Health and
Social Development, Limpopo (MEC) and the
Head of the Department, had withdrawn their opposition to the review
application.
In addition to this, the Labour Court was aware of
and in fact noted the applicant’s protestations regarding the
recorded
concessions. On balance, it seems that the Labour
Court ought at least to have remitted the matter for rehearing.
[36]
There may be cases where it will be
contentious to determine a review of arbitration proceedings in the
absence of a record,
[3]
or what remedy should follow when no proper record is available.
[4]
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.
[37]
The applicant had worked with the
Department for 19 years, was promoted over that period and had no
previous record of misconduct.
He has admitted that he made a
mistake in signing the store register. This should have been
considered in mitigation of the
sanction imposed on him. But
more importantly, remittal would be grievously unjust in the face of
the Department’s
inertia and unresponsiveness, especially given
the applicant’s earnest protestations of innocence, which are
uncontroverted.
It is on these bases, in addition to the amount
of time that has passed, that we feel justified in affording the
applicant an effective
remedy, even though this entails us deciding
the merits ourselves, without the benefit of a full record.
[38]
In a dissenting judgment, Cameron J takes
the view that the order of the Labour Court confirming the
arbitrator’s award
should be confirmed. This is mainly
because, despite the limping record, he finds 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. I have rehashed the
uncontested events before the arbitrator. In my view, they do
not support
the conclusion Cameron J reaches.
[39]
In another judgment, Froneman J parts ways
with this judgment on whether the applicant is entitled to an order
of reinstatement.
He prefers to set aside the order of the
Labour Court and the underlying arbitration award but, because of the
defective record,
he would remit the matter to a fresh arbitration.
The outcome Froneman J opts for, in my view, has several
difficulties.
[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. None of the
parties, including the
applicant, were opposed to this proposal. The
Court chose to decide the matter on the defective record before it
and made
an order adverse to the applicant, when it should not have
done so.
[41]
Second, the remittal would be grievously
unjust given the amount of time that has passed since the dismissal.
Also, Dr Wasilota,
the hospital superintendent at the time, is
deceased. His unavailability as a witness would compromise the
value of remittal.
Mr Baloyi’s case has always been
that he acted on the instructions of the Superintendent and of Matron
Chauke.
Both declined to take the stand and rebut Mr Baloyi’s
averment.
[42]
Third, the MEC and the Head of the
Department have displayed remarkable indifference towards this
dispute and its resolution.
They did not join issue with
Mr Baloyi in the Labour Court proceedings. In this Court,
they chose not to oppose the
relief Mr Baloyi sought. They did
not even respond to the directions of this Court inviting them to
make submissions on the
outcome of this application.
[43]
Lastly, Mr Baloyi had been in the employ of
the Department for 19 years with a clean record. The arbitrator
should have tested
the fairness of the employer’s sanction
against this. But he decided not to interfere with the
dismissal. These
factors are all relevant in considering
whether remittal rather than reinstatement is a just and equitable
remedy. It is
not.
[44]
Condonation and leave to appeal must be
granted. The appeal itself must succeed and the arbitrator’s
award must be set
aside. More importantly for the applicant,
though, he must be reinstated in his former position in the
Department.
Order
[45]
The following order is made:
1.
Condonation and leave to appeal are granted.
2.
The appeal succeeds with costs.
3.
The order in the Labour Court is replaced with the following:
(a)
The arbitrator’s award is reviewed and set aside.
(b)
The applicant is reinstated in his former position of employment with
effect from the date
of his dismissal.
(c)
The respondents must pay the costs of the application.
FRONEMAN J:
[46]
I agree with Moseneke DCJ that there will
be cases where it will be contentious to determine a review of
arbitration proceedings
in the absence of a record,
[5]
or what remedy should follow when no proper record is available.
[6]
This is one of those cases. It is common cause that the record
of the arbitration proceedings was not available and that,
despite an
order of the Labour Court to reconstruct the record of the
arbitration proceedings, the reconstruction proved impossible.
[47]
In the Labour Court the applicant sought an
order for the remittal and rehearing of the arbitration proceedings.
The Bargaining
Council filed an affidavit indicating that no
record of the arbitration proceedings was available and that it and
the arbitrator
had no objection to a remittal and rehearing. The
first and second respondents, the MEC and the Head of the Department,
withdrew
their opposition to the review. The Labour Court
nevertheless dismissed the review application on the merits and
refused
an arbitration rehearing.
[48]
In this Court the applicant once again
sought a remittal and rehearing. There was, again, no opposition to
the application. Directions
were then issued calling on the
respondents to file opposing affidavits and on all the parties to
file written argument, also on
the merits of the appeal. None
of the respondents filed affidavits or written submissions –
only the applicant did
so. In the papers before this Court the
applicant disputed the correctness of the so-called concessions.
[49]
In his judgment Cameron J concludes that
the arbitrator’s notes and the supplementary affidavit in the
Labour Court are sufficient
to dismiss the application. The main
judgment comes to a different conclusion on the same incomplete
record. Moseneke DCJ finds
that the applicant was unfairly dismissed
and is entitled to reinstatement. I disagree that the matter
can or should be decided
on the incomplete record and would order a
rehearing of the arbitration proceedings. This is the relief
the applicant originally
sought in the Labour Court and to which none
of the parties objected.
[50]
There has been no response by any of the
respondents to the applicant’s assertions in this Court that
there was an incorrect
recording by the arbitrator of the concessions
he allegedly made in the arbitration. In these circumstances
the applicant
might be done a disservice if the matter is decided on
an incomplete record of the arbitration proceedings. Remittal
for
arbitration might appear unjust in the face of the applicant’s
long unblemished record and the apparent injustice of the sanction
of
dismissal in those circumstances. But nevertheless the
difficulty of deciding the merits of the case on an incomplete
record
remains. The applicant did not seek an order on the merits in
the initial review, and it would be inappropriate to
do so here. None
of the parties objected to the remittal the applicant sought.
[51]
I would thus concur in granting condonation
and leave to appeal, but would substitute the Labour Court order with
one remitting
the matter back for an arbitration rehearing.
CAMERON J
(Madlanga J and Molemela AJ concurring):
[52]
The applicant, Mr Baloyi, has sought long
and hard to reclaim a job at the Hospital from which he says an
internal disciplinary
inquiry unfairly dismissed him more than ten
years ago, in February 2005. After his internal appeal failed,
he asked the
Bargaining Council to arbitrate an unfair dismissal
dispute with the Department in terms of section 191(1)(a)(i) of
the Act.
[7]
[53]
The arbitrator afforded Mr Baloyi a full
rehearing. He heard first-hand evidence from eight witnesses on
behalf of the Department,
as well as from Mr Baloyi, for whom a
trade union representative from the Health and Other Services
Personnel Trade Union
of South Africa appeared. The arbitrator
considered all the evidence, and weighed it up with the arguments
without reference
to the disciplinary inquiry.
[8]
He issued his award on 10 January 2006. He found against
Mr Baloyi. He found his dismissal both procedurally
and
substantively fair. He concluded:
“
In
totality of the facts in this case, there is nothing that I find to
show or suggest on the balance of probabilities that the
applicant
did not act wrongly. On the contrary I find that he
transgressed the employer’s disciplinary code.
I also
find that the employer had a good cause to find him guilty as
charged.”
[54]
In arriving at his conclusion, the
arbitrator took note of the onus on the employer to show that the
dismissal was fair. He
noted the statutory factors determining
whether a dismissal for misconduct is unfair.
[9]
He considered the employer’s procedure for entering into a
“transaction involving, amongst others, servicing
of their
equipments, in this case the incinerator machines”. He
took into account that Mr Baloyi “signed in acknowledgment
that
indeed [the supplier had] rendered their duties to his
satisfaction”. In fact, payment had been authorised even
though no services had been delivered.
[55]
Crucially, the arbitrator recorded a number
of admissions Mr Baloyi made. These were pivotal to his
finding that Mr Baloyi
“acted outside the parameters set by the
employer, the standard that there [was] no doubt he [was] aware and
[had] been . . .
practicing for years”. In
particular, the arbitrator found that Mr Baloyi had failed to check
whether the incinerators
needed to be serviced in the first place or
at least before the processing of the transaction commenced, and,
thereafter, that
he had failed to check that the supplier had
rendered the work it had been contracted to undertake.
[56]
The arbitrator dealt with Mr Baloyi’s
complaint that his dismissal was procedurally unfair because he was
deprived of the
opportunity to put questions to or cross-examine
certain witnesses from the Department. He then found that there
was “no
evidence that the applicant was denied or refused an
opportunity to cross-examine the witnesses of the employer”.
The
arbitrator said:
“
Thus
to all the witnesses the employer called to build up their cases,
there were questions asked by the applicant’s representatives,
cross-examining them. The applicant preferred that the employer
should have called certain witnesses beyond those he cross-examined.
There is no duty on the employer party to call those witnesses
preferred by the applicant party. It is on this basis that
I do
not find any unfairness to support [the] allegations by the
applicant.”
[57]
Mr Baloyi then sought to review the adverse
award in the Labour Court in a special statutory review of the
arbitrator’s decision.
[10]
But that Court found against him. It dismissed his application
for condonation for his late review and later refused
him leave to
appeal, as did the Labour Appeal Court and the Supreme Court of
Appeal. He now seeks leave to appeal to this
Court.
Though it is not wholly clear from his application, it seems that,
because the tape recordings of the arbitration
proceedings are lost,
he seeks a remittal for a fresh hearing of his dismissal dispute.
[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.
[11]
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.
[12]
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. These are the circumstances
in which we must determine this case.
[59]
On 6 August 2015, the Registrar of the
Labour Court provided the complete record of the proceedings before
that Court. This
consists of 351 pages comprising Mr Baloyi’s
application to review and set aside the decision of the arbitrator;
the arbitrator’s
transcribed handwritten notes; the arbitration
award; as well as the affidavits and written submissions filed in
argument.
[60]
When he brought his Labour Court
application, Mr Baloyi made no objection to the correctness of the
arbitrator’s notes.
On the contrary, during the course of
the proceedings he filed a supplementary affidavit that attached the
arbitrator’s transcript
of the proceedings. These
contained notes where the arbitrator recorded concessions he had made
during the arbitration.
[61]
Mr Baloyi provided the arbitrator’s
notes as the record of the proceedings without any suggestion that
they were incomplete
or inadequate. He was legally represented
so he cannot say that he acted in ignorance. But nearly six
months later,
he filed a supplementary affidavit. This for the
first time challenged the correctness of the arbitrator’s
notes.
Mr Baloyi now said the arbitrator had inaccurately
recorded his concessions.
[62]
The Labour Court was not impressed.
Rightly so. It noted that Mr Baloyi “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.”
[63]
Mr Baloyi failed to file a copy of that
affidavit in this Court. Nor did he attempt to reiterate or
explain the nature of
his objections to the concessions the
arbitrator recorded.
[64]
Mr Baloyi’s objections to the
arbitrator’s record of his concessions are unconvincing.
He takes issue with the
arbitrator’s recordal that he “was
responsible for the maintenance duties over the whole Malamulele
Hospital and all
its satellite institutions”. But to what
does he object? He merely clarifies that he “testified
that [he]
was the administrative Head of the Directorate:
Maintenance”. What the arbitrator recorded is evidently
correct.
His “clarification” operates to his
detriment. It merely amplifies the extent of his authority and
responsibility.
This is because in it, he admits to having
“many subordinates . . . reporting to” him.
[65]
Substantively, Mr Baloyi denies that he was
responsible for every transaction and decision involving
maintenance. He objects
to the arbitrator’s record on the
basis that the particular decision to service the eight incinerators
was subject to a tender
committee in which he had no part. But
his objection obscures the arbitrator’s findings. By his
own admission,
he was the person responsible for maintenance.
So any instruction to procure maintenance services ought reasonably
and responsibly
to have emanated from him. And how was the
tender committee constituted? Could it have been constituted
unless he,
as “the administrative Head of the Directorate:
Maintenance”, recommended it? Mr Baloyi does not tell us.
[66]
His defence was to say he acted on the
instruction of Dr Wasilota. This the arbitrator accepted in his
favour. But the
defence, as the arbitrator found, was
incompatible with the nature and ambit of Mr Baloyi’s own
responsibility to which he
attested.
[67]
But this is not the only attempt to
abdicate responsibility for his “mistake”.
Mr Baloyi’s affidavit
recording his objections to the
concessions attempts to blame his “subordinates”.
Either way, he attempts to
exonerate himself. It is hard to
discern a basis on which to fault the arbitrator for finding his
dismissal justified.
[68]
Both Moseneke DCJ and Froneman J rightly
note that 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.
[13]
In this case, the Labour Court was correct to dismiss Mr Baloyi’s
review even though it lacked a transcript of the
mechanically
recorded arbitration proceedings. The arbitrator’s notes,
together with Mr Baloyi’s further supplementary
affidavits,
were sufficient.
[69]
I can find no reason to disturb the
decision of the Labour Court. Mr Baloyi’s objections to
the concessions are unpersuasive.
The concessions cohere with
the arbitrator’s award, they fit in with the evidence, and they
conform with what Mr Baloyi
says in his application in this
Court, which is that he—
“
acted
wrongly in signing without ensuring himself whether the service
providers rendered work or not, he thought they [had] performed.
He only learned that they did not do work when the investigation
ensued.”
[70]
There is no plausible basis on which the
concessions the arbitrator records can be swatted away. All we
have is Mr Baloyi’s
denial that he made any of those
concessions. But why would the arbitrator record them?
Did the arbitrator lie?
Did he malignly record prejudicial
concessions Mr Baloyi never made?
[71]
These are important issues. When
should a higher court hold that what a lower tribunal has recorded
from the proceedings before
it is incorrect? What level of
proof is necessary for that conclusion?
[72]
The arbitrator determined that Mr Baloyi’s
dismissal was fair. The Labour Court found that the review
test was
not satisfied. We are being asked to intervene.
Mr Baloyi had a clean record but on his own showing his conduct was
incompatible with the responsible position he occupied.
[73]
Stripped to essentials, he was the senior
artisan and the person responsible for repairs and service. He
failed to advise
his superior of the true situation with the
incinerators and requisitioned an unnecessary service. He then
was absent when
the contractor turned up but when asked to certify
that the work had been done did so without any check at all.
This caused
the Department substantial loss because the contractor
took the money and notwithstanding its undertaking has not repaid it.
[74]
To summarise, Mr Baloyi was represented all
along, the arbitrator applied the correct guidelines to determine the
fairness of the
dismissal for misconduct.
[14]
He considered the procedural unfairness point pertaining to the
witnesses Mr Baloyi wanted the Department to call but failed
to call
himself. The arbitrator rightly found that there was no onus on
the Department to call witnesses at Mr Baloyi’s
preference.
Mr Baloyi has not explained why he or his representative failed to
call the witnesses he considered crucial to
his defence. His
failure to make any mention of his objections to the concessions
recorded by the arbitrator in his application
to this Court makes our
order for reinstatement (for which he never asked) perplexing.
[75]
For these reasons, I would grant
condonation but refuse the application for leave to appeal for
absence of prospects of success.
For the
Applicant:
R S Ntloedibe Attorneys
For the First and
Second Respondents:
State Attorney
[1]
66 of 1995.
[2]
Baloyi v MEC for Health and Social
Development, Limpopo and Others
[2010]
ZALC 282
at para 16.
[3]
Papane v Van Aarde NO and Others
[2007] ZALAC 27
; (2007) 28 ILJ 2561 (LAC);
[2007] 11 BLLR 1043
(LAC)
at paras 2-4 (judgment of Zondo JP, as he then was) and 27-30
(judgment of Kruger AJA);
Lifecare
Special Health Services (Pty) Ltd t/a Ekuhlengeni Care Centre v
Commission for Conciliation, Mediation and Arbitration
and Others
[2003] ZALAC 3
; (2003) 24 ILJ 931 (LAC);
[2003] 5 BLLR 416
(LAC)
(
Lifecare
)
at paras 15 and 17;
Nkabinde v
Commission for Conciliation, Mediation and Arbitration and Others
[2013] ZALCJHB 161 at paras 25-30;
Doornpoort
Kwik Spar CC v Odendaal and Others
[2007] ZALC 70
; (2008) 29 ILJ 1019 (LC) (
Doornpoort
)
at paras 5 and 7-8;
Nathaniel v
Northern Cleaners Kya Sands (Pty) Ltd
[2003] ZALC 77; (2004) 25 ILJ 1286 (LC);
[2004] 2 BLLR 157
(LC)
(
Nathaniel
)
at para 16; and
Uee-Dantex Explosives
(Pty) Ltd v Maseko & Others
[2001]
ZALC 63
; (2001) 22 ILJ 1905 (LC);
[2001] 7 BLLR 842
(LC) at paras
18-9.
[4]
Moyo v CCMA and Others
[2015] ZALCJHB 111 at paras 23-5;
Doornpoort
id at para 8;
Nathaniel
id at paras 18 and 20-1; and
Lifecare
id at paras 18-9 and 21.
[5]
See above n 3.
[6]
See above n 4.
[7]
Section 191(1) of the Act provides as follows for
disputes about unfair dismissals and unfair labour practices:
“
(a)
If there is a dispute about the fairness of a dismissal, or a
dispute about
an unfair labour practice, the dismissed employee or
the employee alleging the unfair labour practice may refer the
dispute in
writing to—
(i)
a council, if the parties to the dispute fall within the registered
scope of that council; or
(ii)
the Commission, if no council has jurisdiction.
(b)
A referral in terms of paragraph (a) must be made within—
(i)
30 days of the date of a dismissal or, if it is a later date,
within
30 days of the employer making a final decision to dismiss or uphold
the dismissal;
(ii)
90 days of the date of the act or omission which allegedly
constitutes
the unfair labour practice or, if it is a later date,
within 90 days of the date on which the employee became aware of the
act
or occurrence.”
[8]
In
Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others
[2007] ZACC 22
;
2008 (2) SA 24
(CC);
2008 (2) BCLR 158
(CC) at para
18 Navsa AJ held that an arbitration under the auspices of the CCMA
is a hearing
de novo
.
[9]
Item 7 of Schedule 8 of the Act, Code of
Good Practice: Dismissal, provides:
“
Any
person who is determining whether a dismissal for misconduct is
unfair should consider—
(a)
whether or not the employee contravened a rule or standard
regulating
conduct in, or of relevance to, the workplace; and
(b)
if a rule or standard was contravened, whether or not—
(i)
the rule was a valid or reasonable rule or standard;
(ii)
the employee was aware, or could reasonably be expected to have
been
aware, of the rule or standard;
(iii)
the rule or standard has been consistently applied by the employer;
and
(iv)
dismissal with an appropriate sanction for the contravention of the
rule or standard.”
[10]
In terms of section 145 of the Act.
[11]
The predicament incomplete records create has
arisen in several instances in the Labour Court and the Labour
Appeal Court. See
Liwambano v
Department of Land Affairs & Others
2012 ZALCJHB 14;
[2012] 6 BLLR 571
(LC);
Nathaniel
above n 3;
Lifecare
above n 3;
JDG
Trading (Pty) Ltd t/a Russell’s v Whitcher NO & Others
[2005] ZALC 1
;
[2001] 3 BLLR 300
(LAC); and
Department
of Justice v Hartzenberg
[2001] ZALAC
7
;
[2001] 9 BLLR 986
(LAC).
[12]
Id.
[13]
See above n 3.
[14]
Item 7 of Schedule 8 of the Code of Good
Practice: Dismissal above n 9.