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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on “Settlement Agreements - full and final?” We look at two new cases: The first considers the importance of providing the Labour Court with a transcript of the arbitration before it can review the matter. The second looks at an employee’s duty to assist the employer in a disciplinary hearing.
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What happens when the arbitration transcript is missing?
Rule 42 of the new CCMA Guidelines for Arbitrators in Misconduct Dismissal cases, which will become effective from 1 January 2012, provides that the arbitrator must ensure that the testimony given by witnesses is recorded either electronically or digitally and take notes of the evidence given and keep these notes in a file. The purpose of this requirement is to ensure that there is a record of the arbitration in case the matter is taken to the Labour Court.
The Labour Court performs a review function, meaning that it does not normally hear new evidence. It is bound by the transcript of the arbitration at the CCMA or bargaining council.
What are the implications of failing to furnish the transcript? In the case of Steve Tshwete Local Municipality v South African Local Government Bargaining Council and Others (JR1905/08)  ZALC 172 (5 November 2010), no transcript of the proceedings was placed before the reviewing Labour Court. The Court offered to postpone the matter and give the applicant the opportunity to produce the record, or if it did not exist, to reconstruct it. The applicant declined this offer and submitted the matter could be resolved on the basis of the arbitration award.
The Court held that where an applicant fails in his/her duty to put before it a transcript of the arbitration hearing, the Court is not placed in a position where it can properly assess the issues. The duty to show that an arbitration award is reviewable rests on the applicant. The applicant discharges its duty of showing that an award is reviewable by placing before the court evidence, through papers and other material, that was produced during the arbitration hearing. The consequence of there being no record in this case was that the Court effectively found that the applicant had not discharged its duty to prove its case.
This judgement is interesting, in that it canvasses the circumstances under which a reviewing court may proceed despite not having the transcript of the arbitration proceedings. It mentions the various decisions that have dealt with this, which basically say the reviewing court can proceed if it has sufficient information at its disposal. In this case, the Court decided it did not have sufficient information to proceed.
Application to appeal against the Labour Court’s judgement in this matter was refused, on the basis that the Court said there were no reasonable prospects that another court would come to a different conclusion.
The learning from this case is that while it is the arbitrator’s function to set up the recording devices, parties have a real interest in ensuring that it is done properly. The court may find that the applicant has failed to prove its case, if it fails to produce or reconstruct the record. But it will be interesting to see the court’s view on these matters in relating to the new CCMA Arbitrator Guidelines. In terms of the new rule 42 it is the arbitrator’s responsibility to keep a record, and the court may find that an award is reviewable and refer the matter for rehearing, solely on the basis of the arbitrator’s failure to comply with these rules.
The employee’s duty to assist the employer in a disciplinary hearing
During 2007, the City of Cape Town was engaged in a restructuring process to ensure that employees were placed in correctly graded posts. Despite comprehensive consultation, employees were unhappy and threatened industrial action. Despite warnings that disciplinary action would be taken, a mass strike and traffic blockade took place involving police members.
Charges were brought against the applicants who were all police officers. SAMWU had planned for its members to move in a convoy along the N2 freeway to the civic centre, and a march duly took place along this route. At the disciplinary hearing one of the main issues was whether it could be assumed that the police officers who were identified at the protest at the civic centre, were also involved in an illegal traffic blockade on the N2 en route to the civic centre. The applicants decided to remain silent, even though they could have offered an explanation about how they arrived at the civic centre other than by marching along the N2, had they done so. If they had given evidence, they could also have been questioned about whether they participated in the blockade and about the identity of others who may also have done so.
After the conclusion of the disciplinary hearing, the chairperson imposed a sanction of dismissal. An arbitrator confirmed the dismissal of the applicants. This decision was challenged in the Labour Court in South African Municipal Workers Union obo Abrahams and Others v City of Cape Town and Others  ZALCCT 27 (17 June 2011). One of the grounds for review was that the arbitrator committed an error of law in finding that the employees could be dismissed as part of a collective, without any proof of their individual misconduct.
This case deals with a number of issues, including group misconduct and derivative misconduct (where an employee’s misconduct is derived from their refusal to assist the employer in giving information in their possession about others guilty of misconduct).
The Court commented that adisciplinary hearing is a process used by the employer to establish the truth and stated as follows:
“The applicants were given the opportunity to tell the employer the truth at the disciplinary hearing, they chose not to do so. For the fact that the whole scenario was planned and executed as planned by the applicants and its members, had the desired effect and applicants were warned that participation would lead to disciplinary action, it is reasonable to find that on a balance of probabilities the applicants were involved with the events along N2 freeway.”
The Court held that an employee has a duty to assist the employer to bring guilty employees to book, and a failure to assist in this respect amounts to misconduct. The employees had argued that this approach amounted to employees having a duty to prove their innocence, when the onus of proof lies on the employer in terms of s.192 of the LRA. The court did not buy this argument and found that the arbitrator had correctly found that the circumstances of this case were such that the misconduct committed along the N2 freeway could be imported on those who were identified at the civic centre.
This case is a clear signal that the Labour Court may not come to the aid of employees who do not participate in the disciplinary enquiry and thereby enable it to arrive at the truth of the matter in question, effectively boycotting the process through their silence.
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