IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO: JR1453/06

In the matter between:

DOORNPOORT KWIK SPAR CC				Applicant

and

FRANCISKA ODENDAAL				                 First Respondent

COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION					  Second Respondent

COMMISSIONER ENOCH NEPHALELA		     Third Respondent

EX TEMPORE JUDGEMENT

[1]	In this review application, the Applicant (Doornpoort Kwik Spar CC) applied for an order reviewing, correcting and setting aside the award made by the Third Respondent (hereinafter referred to as “the Commissioner”) under case number GAPT2179/06 in terms of which the Commissioner found that the First Respondent (Ms Franciska Odendaal – hereinafter referred to as “Odendaal”) had been constructively dismissed. The Commissioner ordered the Applicant to pay Odendaal compensation in the amount of six months’ salary amounting to R 27 000.00. The Commissioner stated in his award that the question before him was whether the resignation by Odendaal constituted a constructive dismissal as contemplated in terms of section 186(1)(e) of the Labour Relations Act 66 of 1995. He goes on to state that “[s]hould the finding be that the applicant [Odendaal] was indeed constructively dismissed; the appropriate relief should be granted, envisaged by the Labour Relations Act, 2995.” I will return to the question whether or not the Commissioner had misconstrued his duties in formulating the question in the manner he did and whether his assumption that once a (constructive) dismissal has been established that relief should follow. 

[2]	The first point of attack in this review application was that, because the Commissioner had failed to keep a proper record of the proceedings, he committed an irregularity which irregularity falls to be reviewed. The Second Respondent (hereinafter referred to as “the CCMA”) in compliance with its obligations in terms of Rule 7A(3) of the Rules of this Court, only filed the short and abridged handwritten notes of the Commissioner as the Commissioner did not record the arbitration proceedings mechanically. At the outset it should be pointed out that these handwritten notes are of a very poor quality; very abridged and to a large extent illegible. If the handwritten notes of the Commissioner in the present matter are perused, insofar as it is possible, it appears furthermore that the Commissioner purported to record only the following portions of the evidence and sworn testimony delivered by some of the witnesses at the arbitration hearing: the opening statement made by the Applicant and by Odendaal; the evidence under cross-examination by Odendaal’s witness; the evidence under cross-examination by one of the Employer’s witnesses; the closing arguments on behalf of the Odendaal and the Applicant. The Commissioner failed to record the sworn testimony of Odendaal herself (the Applicant before the arbitration) and also failed to record the evidence in chief of all the witnesses who testified at the hearing. The handwritten record before this Court is thus seriously deficient both in form and content. 

LAW IN RESPECT OF ARBITRATION PROCEEDINGS

[3]	In terms of Rule 36(1) of the Rules for the Conduct of the proceedings before the CCMA, the Commissioner must keep record of: (a) any evidence given in an arbitration hearing; (b) any sworn testimony given in any proceedings before the Commissioner; and (c) any arbitration award or ruling made by a commissioner. In terms of Rule 36(2) of the Rules, the record may be kept by “legible” handwritten notes or by means of an electronic recording. The wording of Rule 36 appears to be couched in peremptory terms. 

[4]	An applicant has a right to a reasoned award in respect of the dispute that was adjudicated before the CCMA. When an award is the subject of a review application, the record of the proceedings before the statutory body will also become important. In fact, once a party had filed its Notice of Motion and founding affidavit, he or she has the right to the record of the proceedings in so far as it may be necessary for the purposes of the review. In this regard Rule 7A(8) of the Rules specifically provides that an applicant in review proceedings may amend, vary or add to the terms of the notice of motion and may supplement the supporting affidavit filed in the review application in light of the record of the proceedings. An applicant who is not afforded this opportunity by virtue of an incomplete or non-existent record may well be prejudiced. The CCMA is a creature of statute and as such it derives its powers and obligations from the LRA. It is therefore obliged to adhere to these statutorily imposed duties – most notable for purposes of this judgment – to keep a proper record of the proceedings conducted before it. 

[5]	There is, however, clear authority to the effect that the mere fact that there is not a record, does not necessarily imply that the matter should as a matter of course be remitted back to the CCMA. Even where parties have endeavoured to reconstruct the record and it is not possible, the Court will likewise not as a matter of course remit the dispute back to the CCMA. See Nathaniel v Northern Cleaners Kya Sands (Pty) Ltd & Others (2004) 25 ILJ 1286 (LC) where the Court declined to remit the matter back to the CCMA but decided to proceed to determine the case on all the available evidential material before it. See also Fidelity Cash Management Services (Pty) Ltd v Muvhango NO & Others (2005) 26 ILJ 876 (LC). In the latter case the Court followed the decision in the Kya-case. However, in two cases the Court was willing to refer the matter back to the CCMA: See Uee-Dantex Explosives (Pty) Ltd v Maseko & Others (2001) 22 ILJ 1905 (LC) and Shoprite Checkers Ltd v CCMA & Others (2002) 23 ILJ 943 (LAC). In these two cases it was taken into account that no record was made available. It was concluded that the commissioner’s failure to produce the record constituted a reviewable irregularity. 

[6]	Where the record can be reconstructed the parties will, however, be expected to reconstruct the record even it may be time consuming or frustrating to do so. See Lifecare Special health Services (Pty) Ltd t/a Ekuhlengeni Care Centre v CCMA & Others (2003) 24 ILJ 931 (LC) and JDG Trading (Pty) Ltd t/a Russels v Whitcher NO & Others (2001) 22 ILJ 648 (LAC).

[7]	Where there has been no mechanical transcribing of the proceedings, the Applicant is still obliged to reconstruct the record as far as possible. Parties who seek relief on the basis of an incomplete record run the risk of being unsuccessful purely on this basis: Where an applicant in review proceedings fails to provide a transcription of the handwritten records and or the cassette tapes, the Court will be unable to adjudicate the review application and may find that it is not entitled to interfere with the award. The Court will not, as already stated, as a matter or course set aside an award and remit the matter back to the CCMA for rehearing merely on the basis that the record is incomplete especially in circumstances where the Applicant has taken no steps to reconstruct the record. In such circumstances the Court will decide whether or not the award is reviewable by looking at all the evidence available, the documentary evidence and the record as incomplete as it may be. 

[8]	I am in agreement with the principles expressed in the aforementioned authority. In the present case the record consists of (apart from the award) only of the mostly illegible handwritten scribbles of the Commissioner. Apart from the fact that it is illegible, it is also seriously flawed in respect of content in that it appears ex facie that the Commissioner had very selectively and very cryptically recorded the evidence presented to him. Although mindful of the principles expressed in the case law, I am of the view that this is one of those cases where it would be unfair to merely dismiss the review on the basis that no record of the proceedings exists especially where it is patently clear that the Commissioner has committed serious irregularities in respect of the record. Under these circumstances I am of the view that it would be fair to remit the dispute back to the CCMA for a rehearing. 

[9]	However, apart from the fact that the dispute ought to be remitted back to the CCMA in light of the absence of a proper record, there is in my view, a further ground upon which this award falls to be reviewed without the necessity of even having regard to a record. It is appears from the conclusion reached by the Commissioner that he was of the view that Odendaal was entitled to compensation in light of the fact that her dismissal “was a constructive dismissal”. It was argued on behalf of the Applicant that, in coming to this conclusion, the Commissioner had completely misconstrued the applicable law in so far as it relates to the establishing of an “unfair constructive dismissal”. There is no indication from a reading of the award that the Commissioner had applied his mind to what is referred to as the “second stage” of the inquiry as to whether or not an employee has established an “unfair” constructive dismissal. The Commissioner merely found that “there was a constructive dismissal” which is but the first stage in the enquiry as to whether an employee has been unfairly constructively dismissed. Once a “dismissal” as contemplated by section 186 of the Labour Relations Act 66 of 1995 has been established, the Commissioner must proceed to the second stage namely to consider whether or not the “dismissal” was also “unfair”.  It is clear that section 186(e) of LRA envisages such a two-stage approach: Firstly, the employee who resigns or leaves bears the onus to prove that continued employment was made “intolerable” by employer's conduct. In terms of this (first) enquiry the employee merely has to prove the jurisdictional requirement namely that there was a “dismissal” as contemplated by section 186 of the LRA. Secondly, in terms of the next leg of the enquiry, the onus is on employer to show that dismissal was not unfair. The Commissioner in this case merely confined himself to the first enquiry and as such completely misconstrued his powers. See in this regard the often quoted case on this point Sappi Kraft (Pty) Ltd t/a Tugela Mill v Majake NO & others (1998) 19 ILJ 1240 (LC) where the Court explains this two-stage approach in detail: 

“[30]	The Act states that every employee has the right not to be unfairly dismissed. See s 185. If the employee is dismissed in the sense referred to in s 186 and that dismissal is not automatically unfair as described in s 187, then the dismissal will be unfair if the employer fails to prove that the reason for dismissal is a fair reason related to the employee's conduct or capacity and that the dismissal was effected in accordance with a fair procedure. See s 188(1) of the Act.
[31]	The distinction between dismissal and the unfairness of the dismissal is further underlined by s 192 of the Act which regulates the onus in dismissal disputes. It provides that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. However if the existence of the dismissal is established, the employer must prove that the dismissal is fair. 
[32]	What we have here is a two-stage approach. Similar, but not entirely identical, to the two-stage approach to constructive dismissal which was followed in the Industrial Court.
[33]	As far as case law is concerned, I have not been able to find any case in which s 186(e) has been dealt with by this court. However, reference may be made to the CCMA arbitration of Aldendorff v Outspan International Ltd (1997) 18 ILJ 810 (CCMA); [1997] 6 BLR 771 (CCMA).
[34]	The new concept is discussed in Basson et al Essential Labour Law vol 1 (1998) at 111, where it is said
'The definition of a constructive dismissal in s 186(e) does not define the limits of what may be ''intolerable' behaviour on the part of the employer, and in the end this will probably be a value judgment made according to the facts of each case. What the case does seem to suggest, however, is that the inquiry by the court is twofold:
 A Firstly, the employer must establish that there was no voluntary intention by the employee to resign. (The employer must have caused the resignation.)
Secondly, the court must ''look at the employer's conduct as a whole and determine whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it'.
(See Pretoria Society for the Care of the Retarded v Loots  [(1997) 18 ILJ 981 (LAC)] for further explanation in this regard.)'
 [35] The quote referred to above deals, as I have pointed out, with the Labour Relations Act 1956 and the Labour Appeal Court was not considering s 186(e) of the new Act. In my opinion, having regard to the scheme of the new Act, the two-stage approach is to be followed.
[36]	First of all an employee who resigns or leaves her place of employment (or may be said to have deserted) must prove that this was not the case and that the employer dismissed her by making the continued employment intolerable. The onus on this leg is upon the employee. If this is established then the second stage is arrived at.
  [37]	The second stage concerns an evaluation of whether or not the dismissal was unfair. This is certainly true of substance but clearly the provisions relating to procedure are not relevant.
[38]	The two stages that I have set out above are however not independent stages. They are two stages in the same journey and the facts which are relevant in regard to the first stage may also be relevant in regard to the second stage. Moreover there may well be cases where the facts relating to the first stage are determinative of the outcome of the second stage. Whether or not this is so is however a matter of fact and no general principle can or should be laid down.
…………….
[46]	There is no indication in the award that the commissioner properly considered these facts in regard to the second stage. At most there is a passing reference to the entire case but I am convinced that the commissioner did not apply his mind past the mere fact that constructive dismissal had been proven, in the sense of a jurisdictional fact, ie a dismissal. That was conclusive as far as the commissioner was concerned. It was not conclusive. He should have gone on to consider all the facts to determine whether the dismissal was unfair and then, of   course, even if he did find it to be unfair, in evaluating compensation, he was obliged to ask what was Sister Gregory's contribution.
[47]	In my opinion therefore, this is a case where it is appropriate to refer the matter back to the CCMA in order to deal with this issue. However, I am immediately faced with a difficulty. I found that there has been a dismissal but I have found that the commissioner did not consider whether or not it was unfair. The two cannot be separated. Therefore it seems to me that the best that can be done is to refer this matter back for ab initio arbitration before a commissioner other than the first respondent. “

See also Capwest Mouldings & Components CC v Ely & Others (1999) 20 ILJ 2859 (LC).

[10]	I am therefore of the view that the award falls to be reviewed and set aside on this basis alone and that the dispute should be remitted to the CCMA for a rehearing. 

[11]	In the result the following order is made: 

1.	The award by the First Respondent in the arbitration held under the auspices of the Second Respondent under case number GAPT2179/06 is reviewed and set aside. 

2.	The matter is referred back to the Second Respondent to conduct an arbitration ab initio before a commissioner other than the First Respondent. In conducting the arbitration the Commissioner shall have regard to both the dismissal (if any) and the unfairness of such dismissal (if established).

3.	There is no order as to costs.

……………………………….
BASSON, J
DATE OF HEARING: 11 SEPTEMBER 2007
DATE OF JUDGEMENT: 11 SEPTEMBER 2007
FOR THE APPLICANT:
ADV K IOULIANOU
INSTRUCTED BY:  STEVE IOUILIANOU ATTORNEYS
FOR THE RESPONDENT:
ADV MM MOJAPELO
INSTRUCTED BY: MOKHOFALA & VERSTER