MEC: Department of Education Free State Provincial Government v De Kock and Others (JR2189/14) [2016] ZALCJHB 472 (3 June 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no: JR 2189/14

In the matter between: MEC: DEPARTMENT OF EDUCATION [FREE STATE PROVINCIAL GOVERNMENT] Applicant And SANDRA DE KOCK First Respondent GPSSBC Second Respondent

ADV. MK MALEMA

Third Respondent

Heard: 2 June 2016

Delivered: 3 June 2016

Reasons: 6 June 2016

VAN NIEKERK J

[1] On 2 June 2016 I dismissed this application to review and set aside an arbitration award issued by the third respondent (the arbitrator) on 20 August 2014. In his award, the arbitrator found that the first respondent had been unfairly dismissed and reinstated her into the applicant’s employ with retrospective effect. These are my reasons for that order.

[2] The deponent to the founding affidavit, a Mr Ngwenya, who is the applicant’s deputy director of legal services, records that there was at the time that the application was filed no record of the proceedings under review, but that ‘on getting the record’, the applicant would supplement the grounds for review. There is a single line in the founding affidavit to the effect that the award is sought to be reviewed ‘on rationality, unreasonableness and gross irregularity’. What follows is a series of suggestions, cast in the vaguest of terms, to the effect that the arbitrator had misconducted himself in various respects. One of these is that he considered that the substantive fairness of the first respondent’s dismissal was in issue. This issue assumes some importance in relation to the filing of the record, since the applicant and the first respondent are in dispute as to whether there was a substantive challenge to the fairness of the reasons for dismissal in the arbitration hearing.

[3] As matters transpired, the complete record was never filed. Despite this, on 5 January 2015, the applicant filed a notice in terms of Rule 7A (8), stating that having considered the transcribed record of the proceedings, it did not wish to supplement its founding papers. It is not clear to me what was filed by way of a record – the applicant appears not even to have filed in this court that part of the record which it did obtain. In the answering affidavit, the first respondent notes that the record provided by the applicant was incomplete. She averred that on 27 November 2014, her attorney advised the applicant’s attorney (of the State attorney) of this fact. On 9 December 2014 a follow up letter was dispatched. The first respondent’s attorney had enquired ‘I don’t know whether by mistake you have neglected to provide me with a detailed copy or maybe the electronic transcription received was not complete. Will you educate into this and provide me with your feedback in this regard as soon as possible?’ The reply was received from the state attorney on 11 December 2014 in that the letter, the state attorney records, amongst other things that ‘We are of the view that you compel the bargaining council to produce the portion of the record that you said you want. If should you not do so within 10 days we will assume that you contend with the status of the matter as it; which will then require you to file your answering affidavit (sic). The portion of the evidence to which the first respondent’s attorney had referred was the hearing on 8 and 9 July 2014 – the record produced went up to and including 20 May 2014. The arbitration award indicates that the hearing date was 8th of July 2014 and it is clear from the terms of the summary of evidence that four witnesses testified for the applicant and that the applicant testified on her own behalf.

[4] Thereafter, the first respondent’s attorney and her counsel endeavoured to convert the handwritten notes into that record. They did so and submitted that version of the record to the state attorney with a proposal that a meeting be held. A meeting was indeed held, at which it transpired that the deponent to the founding affidavit, who had represented the applicant in the arbitration hearing, had only noted questions in the book that he intended to use during the proceedings, with no answers reflected. The attitude adopted by the state attorney was that he did not agree to the record as transcribed by the first respondent’s representatives being used and stated that as far as he was concerned, no agreement had been reached in regard to the compiling of the complete record. It is apparent from the papers that the state attorney did nothing thereafter in order to secure the complete record.

[5] In an application for review, the applicant is obliged to ensure that a full record of the proceedings under review is transcribed, served and filed within the 60-day period permitted by paragraph 11 of the practice manual. In the event that an applicant for whatever reason is unable to comply with this obligation, there is a mechanism established by the practice manual for that party to approach the Judge President of this court in order that directions be issued as to the further conduct of the proceedings. In the present matter, no such approach was made and no directions were sought, nor did the applicant seek to compel the bargaining council to produce the complete record. The state attorney appears to have adopted the attitude that the incomplete record was the third respondent’s problem. That is remarkable in itself; what is even more remarkable, is the brusque rebuff of the attempts by the first respondent’s representatives to assist the state attorney in producing a complete record.

[6] Notwithstanding the State attorney’s failure to comply with the provisions of the practice manual, on 29 April 2015, the applicant applied for a hearing date. It did so in circumstances where the applicant’s representatives were acutely aware that the record was incomplete.

[7] In Toyota SA Motors (Pty) Ltd v CCMA & others (CCT 228/14) the Constitutional Court recently emphasised the importance of conducting review proceedings with due regard to the applicable time limits. It noted the obligations on an applicant, as the party seeking review, to file a complete record or to initiate steps towards reconstruction. In that matter, this court had dismissed a review application on the basis of an inordinate delay caused by the failure to file a complete record, a decision that the Constitutional Court considered to have been consistent with the object underlying the LRA regarding the expeditious and effective resolution of labour disputes, and also the interests of justice (see paragraph 46 of the judgment).

[8] In the present matter, the applicant has failed to discharge its obligations to secure a complete record of the proceedings under review. Indeed, 20 months after filing the review application, the applicant has made no attempt to place before this court some form of record which it believes to be the complete and correct one further, there is simply no credible explanation on record as to why the applicant could not file a complete or reconstructed record. The conduct of the applicant’s representatives in the face of attempts by the first respondent to reconstruct the record has undermined the statutory purpose of expeditious dispute resolution. It should be recalled that in terms of the practice manual, a review application is akin to an urgent application, and applicants are expected to discharge their obligations with due diligence. The applicant has manifestly failed to do so.

[9] Insofar as the applicant’s prospects of success are concerned, the necessary starting point is the hurdle faced by an applicant in a review application. As the Labour Appeal Court has observed, on more than one occasion, the hurdle is set high and it is not often that this court will intervene and set aside an award made by a commissioner. The reasonableness threshold requires that an applicant set out grounds for review that serve at least to assert that the arbitrator misdirected him or herself in one or other material respect and that as a consequence, the decision made by the arbitrator is one to which no reasonable person could come on the available evidence. In so far as the applicant reserved itself the right to supplement the founding affidavit, it never did so and the applicant’s prospects of success must be determined solely on the basis of what is averred in the founding affidavit. As I have indicated, the grounds for review are tersely expressed and in my view, the founding affidavit fails to make out a proper case for review, even on a prima facie basis. The case made out approximates an appeal, not a review. In relation to the question of prejudice, it is apparent from the

arbitration award that the first respondent had been employed by the applicant for 22 years prior to her dismissal in 2013, in respect of misconduct alleged to have been committed during 2010. The award and the order of reinstatement was issued almost 2 years ago. In these circumstances, the statutory imperative of expeditious dispute resolution in the interests of justice require that finality be brought to the matter.

[10] In so far as costs are concerned, in my view, there is no reason why costs should not follow the result. The first respondent has been the victim of the applicant’s dilatory conduct and there is no reason why she should be left out of pocket for the expenses that she has had to incur in opposing these proceedings.

[11] For the above reasons, I dismissed the application, with costs.

ANDRÉ VAN NIEKERK

JUDGE OF THE LABOUR COURT

REPRESENTATION

For the applicant: Adv. BS Mene, instructed by the State Attorney Bloemfontein.

For the third respondent: Adv. PR Cronje, instructed by Hill, McHardy and Herbst Inc.