Unitrans Passenger (PTY) Ltd t-a Greyhound Coachlines v Mile and Others (JR2282/15) [2022] ZALCJHB 181 (1 July 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

CASE No: JR2282/15

In the matter between:

UNITRANS PASSENGER (PTY) LTD

Applicant

t/a GREYHOUND COACHLINES

and

JOSEPH MILE

First Respondent

MAPALO TSATSIMPE N.O.

Second Respondent

SOUTH AFRICAN ROAD PASSENGER

BARGAINING COUNCIL

Third Respondent

Heard: 29 June 2022

Delivered: 01 July 2022

Summary: Review application – reliance on cell phone video footage – employer failed to ensure that video footage formed part of the record despite alleging that the Commissioner failed to apply her mind to the video footage.

JUDGMENT

MKWIBISO, AJ

INTRODUCTION:

[1]. In this matter, the applicant (“the employer”) sought to have an arbitration award by the second respondent (“the Commissioner”) reviewed and set aside on the ground that it was unreasonable, in that, it was not based on the evidence that was presented before the Commissioner.

[2]. In terms of the award, the Commissioner had reinstated the first

respondent (“the employee”) on the basis of a finding that the employer’s dismissal of the employee was substantively

unfair.

[3]. The issues are: (a) whether the employer’s review application

is deemed to have been withdrawn or has been archived in terms of the provisions of the Court’s Practice Manual and, if so, whether the review application should be revived; (b) whether late filing of the employee’s answering affidavit in the review application should be condoned; and (c) whether the employer’s review application meets the test of review.

RELEVANT FACTS:

[4]. The employee, who was employed as a bus driver, was taken through a disciplinary hearing in terms of which he faced the following allegations of misconduct:

“1. Gross misconduct: In that on the 31st March 2015, you threatened a senior fellow employee on the Company premises or assaulting a senior fellow employee on the Company premises.

2. Gross misconduct: In that on the 31st March 2015, you used abusive / derogatory language against a fellow senior employee on the Company premises”.

[5]. The complainant whom it was alleged the employee had assaulted was

one Mr Ridwaan Watson.

[6]. At the disciplinary hearing, there was a factual dispute as to whether the employee had assaulted Mr Watson, and the employer relied heavily on video footage from the cell phone of Mr Watson.

[7]. The employee was dismissed on 11 May 2015, resulting in an unfair

dismissal referral to the third respondent (“the bargaining council”) and consequent arbitration proceedings before the Commissioner. During the arbitration hearing, the same cell phone video footage was played for the Commissioner to see.

[8]. Having viewed the cell phone video footage and listened to the testimony presented before her, the Commissioner found that there was no convincing evidence to prove that the employee was guilty of misconduct.

[9]. The Commissioner’s award reflects that even on Mr Watson’s

own version, the employee had walked away from him but that he had followed the employee constantly asking him to give him the name of the member of management the employee alleged was incompetent. Further, the award reflects that Mr Watson had conceded uttering the words “slaan my” to the employee, but alleged that by so saying he was asking the employee why the employee was hitting him. The Commissioner considered this to be untruthful on the part of Mr Watson. Furthermore, the award reflects that on the Commissioner’s viewing of the video footage, the employee and Mr Watson were arguing and a hand was seen blocking, which was consistent with the testimony

of one eyewitness (Ms Mabe) that the employee in her observation did not like being video recorded and had tried to block that.

[10]. Based on an assessment of the evidence, the Commissioner awarded the employee reinstatement with full retrospective effect from the date of dismissal.

[11]. The Commissioner’s award was served on the parties on 30 October 2015. Thereafter, the employer timeously filed its review application, on 16 November 2015.

[12]. The employer filed the record of arbitration proceedings in April 2016 and filed its notice in terms of rule 7A(8) on 06 May 2016. The record that was filed did not include Mr Watson’s cell phone video footage, despite that footage having served before the Commissioner and being an important piece of evidence at the arbitration.

[13]. The deadline for filing an answering affidavit had expired by 20 May 2016 and in the absence of an answering affidavit by that date the pleadings closed.

[14]. The employer did not take steps to file heads of argument and to request that the matter be set down for hearing, from the time when the pleadings closed until more than four years later in August 2020.

[15]. The employee’s current attorney of record placed himself on record on 27 August 2020 and filed a “notice of deemed withdrawal / archiving” on 20 October 2020.

[16]. The employee filed his answering affidavit opposing the review application on 25 August 2021, many years after the rule 7A(8) notice was served on him and filed with the Court. The employer delivered its notice of objection to the late filing of the answering affidavit on 31 August 2021, thus requiring the employee to file an application for condonation for the late filing of the answering affidavit in accordance with clause 11.4.2 of the Court’s Practice Manual.

[17]. In his answering affidavit deposed to on 03 November 2020, opposing the employer’s application to revive the review application, the employee denied that there was service of the rule 7A(8) notice and explained that such absence of service was the reason why he had not filed an answering affidavit. However, in his founding affidavit deposed to on 11 October 2021 in support of his condonation application for the late filing of the answering affidavit in the review application, the employee alleged that he had received the rule 7A(8) notice and he had not filed an answering affidavit because the Court’s officials had informed him to simply wait at home for the hearing and he assumed he would give evidence at the hearing. There is an obvious contradiction here.

[18]. Ultimately, the employer sprang into action upon receiving the employee’s notice of deemed withdrawal / archiving. All the necessary steps were taken to have the matter heard and the parties have filed all the necessary affidavits, heads of argument and practice notes in the matter.

[19]. The employer’s practice note, specifically contended that the video footage from Mr Watson’s cell phone was not necessary for the determination of the review application. However, in argument before the Court the employer’s counsel conceded the importance of the said video footage but argued that the footage could no longer

be filed because it had been misplaced.

[20]. During argument before the Court, the employer’s counsel argued that the crux of the Commissioner’s decision was that the employer had deleted CCTV video footage that would have revealed what happened.

EVALUATION:

[21]. The relevant provisions of the Practice Manual concerning a review application that is deemed withdrawn are clauses 11.2.2 and 11.2.3, which provide the following:

“11.2.2 For the purposes of Rule 7A (6), records must be filed within 60 days of the date on which the applicant is advised by the registrar that the record has been received.

11.2.3 If the applicant fails to file a record within the prescribed period, the applicant will be deemed to have withdrawn the application, unless the applicant has during that period requested the respondent’s consent for an extension of time and consent has been given. If consent is refused, the applicant may, on notice of motion supported by affidavit, apply to the Judge President in chambers for an extension of time. The application must be accompanied by proof of service on all other parties, and answering and replying affidavits may be filed within the time limits prescribed by Rule 7. The Judge President will then allocate the file to a judge for a ruling, to be made in chambers, on any extension of time that the respondent should be afforded to file the record”.

[22]. In the current matter, the review application was filed on 16 November 2015 and the record was filed in April 2016. The employee, who bears the burden to prove his allegation of a deemed withdrawal, has not provided any evidence of the date when the Registrar made the record available to the employer and when the sixty days’ deadline expired. There is, thus, no evidence of a deemed withdrawal.

[23]. The relevant provision of the Practice Manual concerning the archiving of review applications is clause 11.2.7, which provides the following:

“11.2.7 A review application is by its nature an urgent application. An applicant in a review application is therefore required to ensure that all the necessary papers in the application are filed within twelve (12) months of the date of the launch of the application (excluding Heads of Arguments) and the registrar is informed in writing that the application is ready for allocation for hearing. Where this time limit is not complied with, the application will be archived and be regarded as lapsed unless good cause is shown why the application should not to be archived or be removed from the archive”.

[24]. As I have stated above, the pleadings closed in May 2016, less than a year after the review application had been launched. All the necessary papers, excluding heads of argument, were filed within the twelve months’ deadline.

[25]. Clause 11.2.7 of the Practice Manual does not state when the Registrar must be informed in writing that the application is ready for allocation for hearing. In any event, clause 1.2 of the Practice Manual provides that “[b]y their nature, the provisions of the manual call for flexibility in their application where this is required to promote their purpose”. Further, clause 2.2 of the Practice Manual provides that “this manual is not intended to limit judicial discretion”. This is an old matter that needs to reach finality and it is in the interests of justice to have the review application determined on its merits or lack thereof. There is no indication that the employer proffered an untruthful explanation in seeking to have its case heard on the merits.

[26]. I, thus, consider that the review application is not deemed to be withdrawn and is not archived.

[27]. The late filing of the employee’s answering affidavit opposing the review application, on the other hand, cannot be condoned. As I have pointed out above, the employee has not been truthful about the reasons why he filed his answering affidavit many years out of time. Such untruthfulness under oath cannot go unpunished. His explanation in circumstances, amounts to no explanation at all and his prospects of success are immaterial.

[28]. I have, thus, determined this matter without having regard to the answering affidavit. That is, however, not the end of the story. I must still have regard to the record of arbitration proceedings.

[29]. The employer has made a conscious decision to not present the video recording of Mr Watson’s cell phone as part of the arbitration record. This is a material part of the arbitration record because at the core of the employer’s gripe in this matter is the Commissioner’s alleged failure to apply her mind to what was depicted in the cell phone video footage. The employer did not allege that the video footage had been destroyed through no fault of its own, and it did not provide any valid reason as to why the video footage was not made part of the arbitration record.

[30]. An applicant in a review application, being the dominis litis, has the duty to place the best record before the Court. Further, the failure to file a material part of the arbitration record in the absence of reasonable steps being taken to file the missing part renders the review application fatally defective.[1]

[31]. Importantly, the Commissioner states that the video footage that was played at the arbitration hearing showed the employee and Mr Watson arguing and showed a hand blocking. In order for me to find this assessment of the video footage unreasonable, I need to first see the video footage.

[32]. It is the employer’s fault that the video footage from Mr Watson’s cell phone was not before the Court. That video footage was not served on the employee when the record was delivered in April 2016. The employer’s practice note makes it clear that the employer did not consider it necessary to deliver the video recording as part of the record. The employer must live with the fact that the video footage is now missing more than six years after the record was filed, in light of a period of approximately four years of inaction on its part. Remitting the matter to the bargaining council

would not serve the interests of the speedy resolution of labour disputes, particularly in light of the fact that a new Commissioner

who would be appointed to hear this matter would also not have the video footage in question and there is no suggestion that the record is in any other way insufficient.

[33]. The Commissioner’s award records the facts and the evidence in a manner that demonstrates Mr Watson to have been the cause of the altercation with the employee. The Commissioner’s assessment of the evidence was in line with the probabilities, in my view. An assessment of the credibility of the parties also demonstrates that Mr Watson was not truthful when he testified that his utterance “slaan my” meant he was asking the employee as to why the employee was hitting him. I am satisfied that the evidence set out by the Commissioner in her award, except the video footage that I have not seen, is in line with the record filed in this matter.

[34]. In my view, it is not correct that the Commissioner misconstrued the evidence regarding the different types of video footages. A proper reading of the award demonstrates that the Commissioner was aware of the existence of the employer’s CCTV video footage, Mr Watson’s cell phone footage that was played at the disciplinary hearing, and a second video footage from Mr Watson’s cell phone that was never played at the disciplinary hearing nor at the arbitration. The Commissioner speculated that the second video footage from Mr Watson’s cell phone had been deleted by the employer, which

essentially called for an adverse inference against the employer and Mr Watson. The Commissioner may have erred in speculating in this manner, but that speculation did not form the core of her decision. Her decision was rather based on the video footage that was played at the arbitration, Mr Watson’s own version was that he did pursue the employee insisting on the name of a person whom the employee was alleging was incompetent, evidence of witnesses such as Ms Mabe who testified that Mr Watson was pursuing the employee with a cell phone with a flash light and the employee seemed to not like being recorded, Mr Watson’s apparent dishonesty in respect of what he meant when he uttered the words “slaan my”, and the probabilities in light of Mr Watson’s previous unbecoming conduct.

[35]. Moreover, it is trite that the threshold of a review is high and should not be easily attained. This is due to the intention of the legislature to make arbitration awards final and binding. In Booi[2] the Constitutional Court recently emphasised this point in the following terms:

“[50] Before I proceed to the appropriate remedy, I wish to devote a moment to a salient point that ought to be taken away from this judgment. Labour litigation, as envisaged by the LRA, is distinct from any other civil litigation. This is made abundantly clear in the Preamble to the LRA, and through the specialised system and institutions created by that Act. It has also been affirmed by this Court recently. It follows that labour disputes must not be perceived as ordinary civil disputes by the courts that adjudicate them. Our law is clear: labour dispute resolution must be expedient, simple, accessible and cost-effective. It is with this in mind that the LRA carves out unique litigious pathways for disputes that arise pertaining to employment relationships. What the Legislature had in mind when carving out these pathways is evident from the explanatory memorandum to the Draft Labour Relations Bill, to which I once again refer:

“In order for this alternative process to be credible and legitimate and to achieve the purposes of the legislation, it must be cheap, accessible, quick and informal. These are the characteristics of arbitration, whose benefits over court adjudication have been shown in a number of international studies. The absence of an appeal from the arbitrator’s award speeds up the process and frees it from the legalism that accompanies appeal proceedings. It is tempting to provide for appeals because dismissal is a very serious matter, particularly given the lack of prospects of alternative employment in the present economic climate. However, this temptation must be resisted as appeals lead to records, lengthy proceedings, lawyers, legalism, inordinate delays and high costs. Appeals have a negative impact on reinstatement as a remedy, they undermine the basic purpose of the legislation and they make the system too expensive for individuals and small business.”

[51] It is pertinent that the Legislature deliberately provided for the mechanism of a review, as opposed to an appeal, for arbitration awards made in respect of labour disputes. As demonstrated above, the intention behind this choice was to prevent labour dispute resolution procedures from becoming costly and time-consuming and, thereby, inadvertently favouring the party that wields greater resources and power. It was a pragmatic decision that serves the ends of justice and protects the rights enshrined in section 23 of the Constitution. Courts undermine these imperatives by readily treating reviews as appeals. Arbitration awards are intended to be final and binding. They are not to be treated as a mere box-ticking exercise, or the first step in a drawn out process that can be exploited by the party who is able to “out-litigate” the other. It is no secret that the Labour Courts are backlogged and that this impedes their ability to adjudicate labour disputes in the swift manner contemplated by the LRA. This problem is, without a doubt, exacerbated when a court fails to distinguish between a genuine review and an appeal disguised as a review” (own emphasis).[3]

[36]. In all the circumstances, the employer’s review application does not meet the test of review and its application falls to be dismissed.

[37]. The employer cannot complain about the sizeable back-pay the employee may be entitled to upon the dismissal of its review application, when it did nothing over more than four years to have the matter set down for hearing.

COSTS:

[38]. The Court has a wide discretion on the issue of costs. But for the employee’s untruthfulness, I would have awarded costs in his favour. In the circumstances of this matter, it is not in the interests of fairness to make an order of costs.

[39]. In the result, I make the order set out hereunder.

Order

1. The applicant’s review application is not deemed to be withdrawn and is not archived in terms of the Practice Manual of this Court.

2. The first respondent’s application for condonation for the late

filing of his answering affidavit opposing the review application is dismissed.

3. The applicant’s review application is dismissed.

4. There is no order as to costs.

V.G. Mkwibiso AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES

For the Applicant : Adv C. Orr SC

Instructed by Bowmans

For the First Respondent : Mr A. Goldberg of Goldberg Attorneys

[1] Francis Baard District Municipality v Rex N.O (JA29/2015, JR1000/2011) [2016] ZALAC 81 (28 June 2016), paragraph [16].

[2] Booi v Amathole District Municipality (2022) 43 ILJ 91 (CC); [2022] 1 BLLR 1 (CC).

[3] Ibid, paragraphs [50] – [51]. See also: Glencore Operations South Africa (Pty) Ltd (Western Chrome Mines) v NUMSA obo Motsepe and Others (JR 1828/2019) [2022] ZALCJHB 42 (11 March 2022), paragraphs [13] and [18].