Netshivhungululu v General Public Service Bargaining Council and Others (JR1020/15) [2016] ZALCJHB 334 (26 August 2016)

REPUBLIC OF SOUTH AFRICA

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JR1020/15

In the matter between:

NI NETSHIVHUNGULULU

Applicant

and

GENERAL PUBLIC SERVICE

BARGAINING COUNCIL

First Respondent

COMMISSIONER MJ RALEFATANE

Second Respondent

STATISTICS SOUTH AFRICA

Third Respondent

Heard: 6 July 2016

Delivered: 26 August 2016

JUDGMENT

SCHENSEMA, AJ

Introduction

[1] This is an application to review and set aside an arbitration award of the second respondent (hereinafter referred to as "the

Commissioner") dismissing the applicant's referral of an unfair labour practice. In so issuing the arbitration award under review, the Commissioner was acting under the auspices of the first respondent, the General Public Service Bargaining Council.

[2] The application for review is brought in terms of s145 of the Labour Relations Act 66 of 1995 ("the LRA"). The review

application was filed with this court on 12 June 2015. The application is opposed by the third respondent.

Factual background

[3] Given the basis on which the review is brought, it is not necessary to canvass all of the facts that are material to the dispute. It is sufficient to record for present purposes that the applicant during 2011 was appointed at level 11 in the third respondent's corporate communications division. From March 2012 to June 2013 the applicant acted as marketing manager, a level 13 position.

[4] During June 2013 the third respondent advertised the post of marketing manager in accordance with its recruitment and selection

policy. The applicant applied for the position.

[5] On 3 June 2014, Themba Mohoto who had held the position of Director: Survey Methodology (a level 13 position) was transferred to the position of marketing manager in accordance with the third respondent's transfer and secondment policy. The applicant was

aggrieved by this appointment and referred an unfair labour practice dispute in terms of section 186(2)(a) of the LRA to the CCMA, which arbitration was held on 13 and 15 May 2015 respectively.

[6] The Commissioner found that the applicant had failed to discharge his onus of proof that the third respondent had committed an unfair labour practice. The Commissioner's findings were inter alia based on her determination as to whether it was unfair of the third respondent to abandon the on-going recruitment process and to resort to the transfer process.

[7] The Commissioner ultimately found that the applicant's acting position did not qualify him for an automatic promotion and that

there was no evidence to suggest that the applicant would be promoted unless he openly competed in the interview process. Furthermore that as the applicant had responded to a national advertisement, the performance evaluations or his acting in the position would not have assisted the applicant unless he performed well in the interview.

The Review Application

[8] Upon receipt of the arbitration award, the applicant launched a review application. The grounds of review are set out in the

applicant's founding and supplementary affidavits. The applicant alleges in his papers that the Commissioner ignored the evidence of Nontombeko Bongombi and Nico Jones. Furthermore that he was not given sufficient time to conclude his cross examination.

[9] The applicant has further stated that the Commissioner has omitted critical evidence in the award which selection was purposefully done in order to assist the Commissioner to arrive at the decision she ultimately did. The Commissioner further ignored the applicant's

evidence that in terms of the third respondent's Recruitment and Selection policy section 5.5.2 "posts on levels 8 to 16 must be advertised externally in the media".

[10] The applicant holds the view that the Commissioner's award is reviewable and accordingly should be set aside. In the applicant's

supplementary affidavit, the applicant submits further grounds of review which inter alia include the Commissioner's failure to adhere to the code of conduct for commissioners, failure to take into account evidence, refusing to allow valid and relevant evidence, ignoring statutory requirements and/or legal principles, unduly assisting one party with its case and committing misconduct in relation to the duties of the Commissioner as an arbitrator.

[11] The applicant has failed to file the full record of the proceedings and has only filed the handwritten notes of the Commissioner after numerous requests were made by the third respondent's attorneys of record. Upon perusal of the correspondence between the parties, it is clear that the third respondent's attorneys of record attempted to engage with the applicant for the sole purpose of assisting the applicant by advising him of the Rules of this Court. Despite these attempts, the applicant has failed to file a record and has further refused to reconstruct the record as there are no recordings of the arbitration proceedings.

[12] On 28 July, 5 August, 14 August and 18 August 2015 the third respondent's attorneys of record addressed correspondence to the

applicant urging him to reconstruct the record and to file the documentary evidence that had been made available to the Commissioner

during the arbitration proceedings. It is clear from the applicant's responses to the aforementioned correspondence that the applicant

refused to file a record of the proceedings or to facilitate the reconstruction of the record. Eventually the applicant filed the

Commissioner's handwritten notes on 18 August 2015 and in further correspondence holds the view that the documentary evidence is

irrelevant despite referring to various documents in his application.

Analysis

[13] The applicant's review application is based entirely on the evidence (or lack thereof) that was submitted during the arbitration

proceedings, yet does not deem it necessary to file a record with this court or to place this court in a position to consider the

evidence. I am in agreement with the third respondent's submissions in its heads of argument, that this court cannot be expected to review an award based on the piecemeal information the applicant has referred to in his affidavit. The applicant seems to suggest that this court should review and set aside the arbitration award on the evidence that is before it. The applicant is thus requesting that this court review the Commissioner's award solely on the award. This I cannot do, it is trite that in order to review an award, the applicant is required to submit a record for the purpose of the review application. This, the applicant has failed to do.

[14] It is further trite that a complete record allows a review judge to ascertain the full facts that were before the arbitrator. It is true that sometimes, in the absence of a complete record, the courts have been robust in determining the matter on the available

information.[1] But these instances are limited to where the "irregularity may be so patent from the award that a record might not be necessary" or because there was no "material dispute of fact going to the very heart of the review."[2] These instances are not present in this matter and accordingly there is no basis to review the award without a record.

[15] The applicant was obliged to place a complete record before this court and in the absence thereof, this court is in no position to properly adjudicate the review application before it and the review application should on this ground be dismissed.[3]

[16] In terms of Rule 7A(6), the Applicant was obliged to furnish the Registrar and each of the parties with a copy of the record or portion of the record relied upon and any additional reasons as may have been supplied by the relevant trier of facts. In the case of Metalogik Engineering and Manufacturing CC v Fernandes and Others[4] the Labour Court held that it cannot review an arbitration award on its merits without a proper record of what transpired in the arbitration hearing. The applicant is obliged, in the absence of a coherent transcription of the record of evidence led at the arbitration, to reconstruct the record.

[17] In the case of Lifecare Special Health Services (Pty) Ltd t/a Ekuhlengeni Care Centre v CCMA and Others[5] the Labour Appeal Court explained how a reconstruction of a record should be undertaken as follows:

‘the tribunal (in this case the Commissioner) and the representatives... come together, bringing their extract 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 proceedings as the circumstances allow. This is then placed before the relevant Court with such reservations as the parties may wish to note...’

[18] All that was necessary in this matter was for the Applicant to:

[18.1] call upon the Commissioner to read her handwritten notes into the record and have same transcribed; and to

[18.2] call upon the first respondent to convene a meeting of the parties, attended by the third respondent, to reconstruct the record of evidence.

[18.3] there is no good and sufficient reason why the applicant did not seize upon these initiatives in order to produce a proper record. In fact, no attempt has been made by the applicant to reconstruct, yet it was his obligation to do so.

[19] In the case of JDG Trading (Pty) Ltd t/a Russells vs Whitcher NO and Others,[6] the Labour Appeal Court made it clear that an applicant who seeks relief in a review on the basis of a defective record runs the risk that it will be unsuccessful on that ground alone. This must be based on the simple principle that ‘evidence at the heart of the attack on the decision of a commissioner must be “properly available” to the reviewing Court.’[7]

[20] There is a plethora of case law that has dealt with an applicant's failure to submit a record to the court. These applications, for obvious reasons have failed. Rule 7A(6) of the Labour Court Rules is clear, in terms of this Rule the applicant was required ".. to furnish the registrar and each of the other parties with a copy of the record or portion of the record, as the case may be, and a copy of the reasons filed…" There has been no compliance of Rule 7A(6) by the applicant.

[21] The applicant's entire basis of his review is reliant upon the evidence that was submitted during the arbitration proceedings and accordingly by the very nature of the applicant's review application, it is essential that the applicant provide the documentary record of the proceedings he wishes to review. The applicant's blatant refusal (as is evident in the correspondence), has rendered it impossible for this court to come to the assistance of the applicant. Furthermore this court is in no position to consider the arbitration award in the absence of a record and can therefore not determine whether the Commissioner's award is reviewable or not.

[22] The applicant has further not assisted this court in providing an explanation as to why he did not deem it necessary to reconstruct the record for the purpose of this review. The test in respect of a review application where the record is not present is clear.

[23] In Peter Fountas v Brolaz Projects (Pty) Ltd and Others,[8] this Court said the following:

"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…‟4

[24] Further as has been set out in the matter of Francis Baard Municipality v SAMWU obo LH Shushu[9],

"[21] The first enquiry is whether the missing part of the record is material. Materiality would be decided after considering, inter alia, the grounds of review, the nature of the missing evidence and the attitude of the arbitrator and the parties. The second question is whether the applicant took all reasonable steps to get the missing part or to reconstruct the record. When considering this question, the court would inter alia consider the chances of retrieval or reconstruction and the steps taken by the applicant. When the question whether to dismiss, postpone or remove the review application is considered the court would have regard to the right to review and any prejudice to the parties.

[22] There is a direct link between the record, the standard of review and the grounds of review. Each case will therefore depend on its own facts and circumstances. There can be no one size fits all approach. A court may not set aside a finding of fact by a commissioner unless there is no evidence to support it or, if in light of all the evidence, the finding is otherwise unreasonable. The unreasonableness of the factual finding can only be determined by examining the record

in relation to the factual findings made by the commissioner. If the grounds of review are patent from the imperfect record there would not be a need for a full record….

[25] The court should ideally see all the material that was before the decision-maker so that it can fully and fairly deal with the grounds of review especially when the grounds of review are dependent on the factual findings of the Commissioner. It goes without saying that there can, in some cases, be no full and fair review if all the evidence is not before the court. In this matter, two witnesses’ testimonies were not available. One witness’ re-examination and the employee’s

re-examination were also not transcribed. Although a lot of documents were placed before the Commissioner, these documents are of no assistance because their status is uncertain. The appellant alleges that they were admitted whilst the third respondent points out - correctly based on the pre-arbitration minute – that the agreement was just that they are what they purport to be. Most of the documents were not proven. The documents are also not helpful without the testimony of the witnesses who testified with regard thereto. It would have been very difficult, if not impossible, for the court a quo to determine whether a reasonable decision-maker could have reached the conclusion that the Commissioner reached. The missing parts were material….."

[25] In applying the aforementioned reasoning to this matter, the applicant has clearly failed to comply with the basic requirements of a review and accordingly the applicant's review application must fail.

Costs

[26] I have considered the question of costs and there is my view, no reason why in law and fairness costs should not follow the results.

[27] I do take into account that there is ongoing relationship between the parties and it is for this reason that I do not make an adverse cost order on an attorney and client scale. I am of the view that in light of the applicant's refusal to comply with the Rules of this Court, that the applicant is the author of his own misfortune. It is clear from the correspondence that the third respondent's attorneys of record on numerous occasions attempted to advise the applicant of the Rules of this Court and requirements for compliance. The applicant ignored this advice and persisted with a defective review application.

[28] I accordingly, make the following order:

[28.1] the application for review is dismissed; and

[28.2] the applicant is ordered to pay the third respondent's costs.

___________________

Schensema AJ

Acting Judge of the Labour Court

APPEARANCES

For the applicant: Mr Netshivhungululu (In person)

For the third respondent: Mr Zwane

Instructed by:

Cliffe Dekker Hofmeyr Inc

[1] See Paul Refiloe Mahamo v CMC di Ravenna South Africa- PG Mavundla Joint Venture – JR 1231/12 dated 9 April 2015

[2] See Shoprite Checkers (Pty) Ltd v CCMA (2002) 23 ILJ 943 (LC) at par 11, Ram Hand-to-Hand Couriers v National Bargaining Council for the Road Freight Industry C174 and Lifecon Special Health Services (Pty) Ltd v CCMA et al DA 15/02.

[3] See Metalogic Engineering and Manufacturing CC v Fernandes and Others (2002) 10 BLLR 985 (LC).

[4] See Metalogic Engineering and Manufacturing CC v Fernandes and Others (2002) 10 BLLR 985 (LC).

[5] (DA15/02) [2003] ZALAC 3 (28 March 2003)

[6] (2001) 22 ILJ 641 (LAC)

[7] KM Liwambano v Department of Land Affairs (2012) 6 BLLR (LC)

[8] (JA36/03) [2006] ZALAC 12 (17 May 2006)

[9] (JR1000/2011, JA29/2015) [2016] ZALAC 33 (28 June 2016)