Eskom Holdings SOC Limited v Commission for Conciliation, Mediation and Arbitration and Others (JR 1912/2018) [2022] ZALCJHB 335 (22 November 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 1912/2018

In the matter between:

ESKOM HOLDINGS SOC LIMITED

Applicant

And

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

First Respondent

ELIAS LEGWATHI N.O

Second Respondent

NUM obo KHOZA AND SITHATHU Third Respondent

Enrolled: 3 November 2022

Delivered: 22 November 2022

This judgment was handed down electronically by consent of the parties’ representatives by circulation to them by email. The date for hand-down is deemed to be 22 November 2022.

JUDGMENT

PRINSLOO, J

Introduction

[1] The Applicant seeks to review and set aside an arbitration award dated 4 July 2018, wherein the Second Respondent (arbitrator) found that the dismissal of Messrs Khoza and Sithathu (employees) was procedurally fair, but substantively unfair and ordered that they be reinstated with backpay.

[2] The review application was filed outside the prescribed 6-week period and the Applicant seeks condonation for the late filing thereof. The Applicant also seeks the reinstatement of the review application.

[3] The Third Respondent did not oppose these applications and it is evident from the heads of argument filed by the Third Respondent that submissions were made only in respect of the merits of the review application.

[4] I have considered the applications for condonation and reinstatement. The delay in filing the review application is not excessive, the explanation tendered is plausible, the prejudice to the Respondents, should condonation be granted is non-est and on a conspectus of all the facts and the requirements, the Applicant has shown good cause. I also considered the explanation tendered in respect of the filing of the records and the parties’ efforts to reconstruct an incomplete record. Condonation for the late filing of the application is to be granted and the review application to be reinstated. The review application will be considered on its merits.

Background facts

[5] Mr Sithatu was employed as a senior plant operator and Mr Khoza as a unit controller.

[6] Mr Sithathu passed away in 2019 and he is no longer represented by the National Union of Mineworkers (NUM). Mr Sithathu is no longer a party to this application and it is only Mr Khoza’s case that is to be considered.

[7] However, the misconduct for which the employees were dismissed, is related and it will be referred to insofar as it provides context to the matter. Mr Sithathu was dismissed for failing to ensure that a particular valve was closed when he had signed the relevant check sheet, confirming that it was indeed closed. The valve was in fact not shut and as a result, liquid coolant leaked through the open valve, which ultimately caused the plant to catch alight, causing severe damage and rendering the plant unusable for eight months.

[8] Mr Khoza was dismissed because, arising out of the incident caused by the open valve, he failed to heed alarms sounding at his panel, which alerted him to the problem. The Applicant’s case is that, had Mr Khoza complied with the alarm protocols, the damage could have been contained or averted.

[9] The charges levelled against Mr Khoza related to an incident that occurred on 21 May 2017. The essence of the charges is that he had failed to follow the alarm response procedure when receiving alarms on the stator coolant system and negligence in that he had failed to escalate the alarms received on the stator coolant system to his shift supervisor or shift manager.

[10] The arbitrator issued an award in favour of Mr Khoza wherein he found that his dismissal was procedurally fair, but substantively unfair and ordered that he be reinstated with backpay. The outcome of the arbitration proceedings and the award is the subject of this review application.

The evidence adduced

[11] In order to assess the arbitrator’s findings and the grounds for review raised by the Applicant, it is necessary to consider the evidence adduced at the arbitration proceedings as well as the charges of misconduct Mr Khoza faced and was dismissed for.

[12] In the arbitration award, the arbitrator recorded that the matter was heard over a period of five days and that the Applicant had called Mr Mandla Twala, Mr Alec de Wet, Ms Margaret Mokoena, Mr Thomas Mabuza, Mr Lawrence Chauke and Mr Aluwin Mutsilawana as witnesses. On the Respondent’s side, Messrs Sithathu and Khoza testified and they called Messrs Mtsweni and Khumalo as witnesses.

[13] It is evident from the Applicant’s papers that there were serious challenges to obtaining the transcribed record of the arbitration proceedings and that after a process of reconstruction, a record was agreed to and such record was made available to this Court.

[14] The Applicant has raised a number of grounds for review which in my view, essentially relate to the evidence that was adduced and the manner in which the arbitrator dealt with the evidence. The grounds for review are inter alia that the arbitrator failed to consider material evidence, that he considered and attached weight to evidence that was of no relevance to the issues he had to decide and he relied on facts that had no evidentiary value. Furthermore, the arbitrator misunderstood the nature of the enquiry and he failed to distinguish between the nature of the charges levelled against Messrs Khoza and Sithathu and their respective roles which resulted in the incident, he failed to consider the seriousness of the misconduct and in general, he made errors of fact.

[15] This Court is faced with great difficulty in assessing the merits of the review application, due to the state of the transcribed record.

[16] The evidence of the Applicant’s witness, Mr Twala, is complete but related to the issue of procedural fairness and is thus irrelevant for purposes of this review application. The arbitrator found the employees’ dismissal procedurally fair and that finding is not subject to review.

[17] The transcribed record that was filed, contains the evidence in chief of Mr de Wet, the Applicant’s operating group manager at the Hendrina power station and a limited portion of his evidence under cross-examination. Mr de Wet’s evidence is material and relevant. In the reconstructed transcribed record, the arbitrator placed the evidence of Mr de Wet on record. The recording is such that it is impossible to make any sense of it or to comprehend or assess Mr de Wet’s evidence in its entirety. To illustrate this difficulty, in response to a question as to why Mr Khoza was charged, the transcribed record reads as follows:

‘The alarm response procedure, process procedures state the essential activities to be, to get it out by the (inaudible) and use it. When an alarm or warning is initiated. Purpose to prevent…’

‘I think it is captured on that particular document. 2.25:

“The roles and responsibility”

B5 3.3.1:

“Alarm were red A. Red.”

B6 3.5 and they referred to 3.3, 3.51, 3.52, 3.5.3., 3.5.4.

BA unit 1 to 10 he explained the alarm response (inaudible). (Inaudible) Khoza did not follow the procedure or not escalating the matter to his supervisor.

Annexure C see six.

“Fault record the data from incident indicating maximum fault Connect of 75KA on rate face winding.”

C5, 25,55:

“On the 22 May 2017 the water went through the exit proven and…” ‘

[18] In recording the evidence of Ms Mokoena, it is evident that a discussion took place between the parties and the arbitrator regarding witness statements, which are not sworn statements and the arbitrator’s notes to determine what was actually testified. It transpired that the evidence was not intact and that “[t]he only transcribed version I have is a little bit of Alec de Wet. That is it. (inaudible) it was reconstruction by the parties so there is no other transcribed notes of the applicant’s witnesses”.

[19] There was a subsequent attempt to reconstruct the evidence of Ms Mokoena, Messrs Mabusa, Khoza, Mtsweni and Khumalo which reconstructed version is equally of no assistance to this Court to understand and assess the evidence of the aforesaid witnesses.

The test on review

[20] I have to deal with the grounds for review within the context of the test that this Court must apply in deciding whether the arbitrator's decision is reviewable. The test has been set out in Sidumo and another v Rustenburg Platinum Mines Ltd and Others[1] (Sidumo) as whether the decision reached by the commissioner is one that a reasonable decision maker could not reach. The Constitutional Court held that the arbitrator's conclusion must fall within a range of decisions that a reasonable decision maker could make.

[21] The Labour Appeal Court (LAC) in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and others[2] (Gold Fields) affirmed the test to be applied in review proceedings and held that:

‘In short: A reviewing court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts presented at the hearing and came to a conclusion that is reasonable.’

[22] The review Court must consider the totality of the evidence and decide whether the decision made by the arbitrator is one that a reasonable decision maker could make, based on the evidence adduced[3].

[23] This Court is however not in a proper position to consider the totality of the evidence that was placed before the arbitrator.

Quo vadis?

[24] The unfortunate reality is that this Court is not in possession of a complete record wherein the evidence of the witnesses called by the parties is properly recorded and transcribed.

[25] If the Labour Court is not placed in possession of necessary portions of the record, the question arises whether the Court should, in the absence of the record, dismiss the review, grant the review for want of record or undertake the determination of the review on the material available[4].

[26] In Department of Transport, North West Province v Sebotha No and others,[5] the Court held that in the absence of a proper record it is unable to determine whether or not there is a basis for the criticism against the commissioner’s findings and held that:

[16] I now turn to deal with the issue of whether or not the award of the arbitrator is reviewable. In considering whether or not to review and set aside the arbitration award of the arbitrator the question that arises is whether or not the conclusion reached by the arbitrator falls outside the range of reasonableness so as to attract interference with the award by the court. The test to determine whether or not a conclusion reached by an arbitrator is reasonable or otherwise is that of a reasonable decision-maker. The question to be answered in considering the reasonableness or otherwise of an award is whether the conclusion of the arbitrator is one which a reasonable decision maker could not reach…

[17] In order to apply the above test the court needs to have before it the record of the arbitration proceedings. As a general rule the complete record of everything that transpired during the arbitration proceedings needs to be placed before the court…

[18] The responsibility to ensure that a proper and complete record is placed before the court rests with the applicant. Failure to place before the court a complete record by the applicant could result in the dismissal of the review application on that ground alone.’

[27] In Balasana v Motor Bargaining Council and others,[6] the Court was faced with a difficulty in that there was no transcript of the arbitration proceedings. The Court held that the general view adopted in cases where there is a defective or incomplete record is to refuse to entertain the review, particularly where the applicant has failed to show what steps he took to find the missing parts or to have it reconstructed. It was however held that:

‘…I am of the view that dismissing the applicant’s review application and bringing the matter to finality on that basis would equal both an injustice and unfairness… It is therefore my view that the practical approach based on the dictates of justice and fairness is to remit the matter to the first respondent for the dispute to consider afresh before a commissioner other than the second respondent.’

[28] In Baloyi v Member of the Executive Committee for Health and Social Development, Limpopo and others,[7] the Labour Court dismissed an application for review on the merits, with the application having been determined on the basis of the commissioner’s handwritten notes. On appeal, the Constitutional Court acknowledged that there may be cases where it will be contentious to determine a review of arbitration proceedings in the absence of a proper record and considered the remedies to follow when no proper record is available. The Constitutional Court held that it was improper to dismiss the review application without a proper record of the arbitration proceedings. The Court held that:

‘…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.’

[29] In Fountas v Brolaz Projects (Pty) Ltd and others,[8] the Labour Appeal Court was faced with an appeal where the Labour Court dealt with a review application, despite the absence of relevant portions of the record and held that:

‘[31] In my view there can be no doubt that the Court a quo should not have proceeded to consider the merits of the review application in this matter when there was material evidence missing in the record. What the Court a quo was required to have done was to consider whether the first respondent as the applicant in the review application had taken all reasonable steps to search for such evidence and or to reconstruct the record. If the first respondent had taken all reasonable steps to either find the missing evidence or to reconstruct the record and these had been to no avail, it could then have had to deal with the question of what should be done. If, however, it was of the view that the first respondent had not taken all reasonable steps that it could and should have taken, it would have had to choose one of two options.

[32] The one would be to dismiss the application on the basis that the first respondent had had ample opportunity to take those steps and had no acceptable explanation for not having done so. This is not an option that the Court a quo could have taken lightly because it would have shut the door in the face of the first respondent who would not have been able to have set aside an arbitration award that may well not have deserved to stand. However, it is a decision that a Court may take in an appropriate case.

[33] The other option that the Court a quo could take would have been to postpone the review application or to strike it off the roll to enable the first respondent or all parties to take such steps as might not have been taken earlier to search for the missing evidence or to reconstruct the record. The latter option is one that a Court will usually adopt unless it is dealing with a case where considerations of fair play between the parties, finality of litigation and others demand that the application be dismissed without the consideration of the merits. This would occur where, for example, the matter had dragged on for a long time and the relevant party had had ample opportunity to reconstruct the record but had, for no acceptable reason, failed to do so.’

[30] The principles had been set out by the LAC in Palluci Home Depot (Pty) Ltd v Herskowitz and others[9] as follows:

‘Where all the facts required to make a determination on the disputed issues are before a reviewing court in an unfair dismissal or unfair labour practice dispute such that the court is “in as good a position” as the administrative tribunal to make the determination, I see no reason why a reviewing court should not decide the matter itself.’

[31] In Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others[10] (Toyota SA), the Constitutional Court was faced with a matter where the record was incomplete and the Court expressed itself as follows:

‘It is the duty of a commissioner of the CCMA conducting an arbitration to ensure that a proper and complete record of those proceedings is kept and, together with the CCMA, to ensure that, if subsequently, there is a review application, a proper and complete record is made available to the Registrar of the Labour Court. It may well be that a failure by a commissioner to perform this important function constitutes misconduct or a gross irregularity in the proceedings as envisaged in section 145(2)(a) and (b), respectively. If that is so, then it would be possible to have an award reviewed and set aside on either of these two grounds in section 145(2)(a) and (b) if a commissioner failed to perform this function…'

[32] In casu, the Applicant seeks for the arbitration award to be reviewed and set aside and to be substituted for a finding that the dismissal of Messrs Sithathu and Khoza is substantively and procedurally fair.

[33] I canvassed the issue of relief with Mr Gotz for the Applicant and he submitted that there was sufficient material before the Court to substitute the outcome of the arbitration award, but ultimately it is an issue for this Court to decide.

[34] In my view, the Applicant has taken all reasonable steps to reconstruct the record and there is no possibility that a further attempt will result in a better record, wherefore I am not inclined to dismiss the application for lack of a complete record.

[35] I am further of the view that the arbitration award is to be set aside on review, but it will be improper to substitute the outcome of the arbitration award with a finding that Mr Khoza’s dismissal was fair. This would obviously be an order that will be adverse to Mr Khoza, and it is not one this Court is prepared to make on an incomplete record that is of very little to no assistance to this Court. It would not be in the interest of justice to substitute the outcome of the arbitration proceedings based on the record before this Court, as this Court is just not “in as good a position” as the arbitrator to make a determination on the fairness of Mr Khoza’s dismissal.

[36] The interest of justice will be best served by remitting the matter for arbitration de novo.

Costs

[37] This Court has a wide discretion in respect of costs.

[38] This is a matter where ultimately the arbitrator’s award gave rise to the review application. Mr Khoza was entitled to defend an award issued in his favour by opposing the application and should not be punished for doing so.

[39] The poor record keeping by the First Respondent and the arbitrator caused this matter to be remitted for a hearing de novo and the parties are not responsible for the failure to keep proper records.

[40] In Toyota SA, the Constitutional Court held that[11]:

‘Courts should start to be very strict and firm with the CCMA and bargaining councils with regard to their duty to ensure that proper and complete records of arbitration proceedings conducted under their auspices are kept. In appropriate cases costs orders against the CCMA and bargaining councils may have to be seriously considered if this problem persists and no proper explanation is placed before the Court as to what reasonable steps were taken to avoid it.’

[41] In casu, the parties did not seek a cost order against the CCMA or the arbitrator, but had they done so, such an order would have been appropriate. In my view, the interest of justice will be best served by making no order as to cost.

[42] In the premises, I make the following order:

Order

1. The review application is reinstated;

2. The late filing of the review application is condoned;

3. The arbitration award dated 4 July 2018 and issued under case number MP6108-17 is reviewed and set aside;

4. The dispute is remitted to the First Respondent for a hearing de novo before a commissioner other than the Second Respondent;

5. There is no order as to costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Advocate A Gotz SC with Advocate L Buchler

Instructed by:

Bhikha Inc Attorneys

For the Third Respondent: Advocate F Baloyi

Instructed by:

Mohale Inc Attorneys

[1] (2007) 28 ILJ 2405 (CC) at para 110.

[2] (2014) 35 ILJ 943 (LAC) at para 16.

[3] Gold Fields supra at paras 18 - 19.

[4] C Bosch, A Myburgh, ‘Reviews in the Labour Courts’, Lexis Nexis at p 445.

[5] (2010) 31 ILJ 97 (LC) at paras 16 – 18.

[6] (2011) 32 ILJ 297 (LC) at para 27.

[7] (2016) 37 ILJ 549 (CC) at para 40.

[8] Unreported judgment under case no JA36/03 delivered on 17 May 2006 at paras 31 - 33. See also Francis Baard District Municipality v Rex NO and others [2016] 10 BLLR 1009 (LAC) at paras 22 – 23.

[9] (2015) 36 ILJ 1511 (LAC) at para 58.

[10] (2016) 37 ILJ 313 (CC) at para 168.

[11] Toyota SA supra at para 189.