TWO recent Constitutional Court judgments have shone the spotlight on the persistent problem of labour courts being asked to review arbitration proceedings only to find that records have gone missing.
In one judgment last month, the Constitutional Court noted that incomplete, patched-up records caused by faulty mechanical equipment or lost tape recordings at the Commission for Conciliation, Mediation and Arbitration (CCMA) were not uncommon.
The court said it was sometimes possible to determine the details of a case by scrutinising the arbitrator’s award plus all the documentary evidence including the arbitrator’s transcribed handwritten notes. The court did so in the two cases in which it remarked on incomplete records.
In a case between Limpopo’s health MEC and health department, and a fired employee, the court said it was improper for the Labour Court to dismiss an application for the review of an arbitration award in the absence of a proper record. It ordered the reinstatement of the fired employee.
Hermann Nieuwoudt, head of employment and labour practice at law firm Norton Rose Fulbright, said the CCMA’s record-keeping obligations were not a key issue in either of the two matters, but Judge Raymond Zondo dealt extensively with the missing records issue in his dissenting judgment in the case between Toyota and the CCMA.
"He probably knows how serious the issue is as he was once judge president of the Labour Court," Mr Nieuwoudt said.
The courts generally should be more critical and should supervise the CCMA more strictly, he said.
Mr Nieuwoudt praised Judge Zondo’s practical suggestion that the arbitrators, in order to try to minimise the risk of incomplete or missing records of arbitration proceedings, should inspect the recording machine to satisfy themselves that the equipment functioned properly.
Even when proceedings were recorded correctly, records often went missing later, Mr Nieuwoudt said. The case management officer of the CCMA was obliged to make sure that the recordings were stored properly.
It would, however, be difficult to hold the CCMA or the bargaining councils liable for such mishaps as has been suggested by Judge Zondo, Mr Nieuwoudt said.
Judge Zondo suggested that costs orders against the CCMA and bargaining councils for failing to keep complete records might have to be seriously considered.
Mr Nieuwoudt said this would be impossible because the Labour Relations Act stated that the commission was not liable for any loss suffered by any person as a result of any act performed or omitted in good faith in the course of exercising the functions of the commission. This increased the frustration of the parties, he said.
"If parties had a recourse, it would be a lot better."