Ever so often it happens that the documentation in incomplete in arbitrations.What would you do? --------------------------------------------------------------------------------------------------- What is the position when incomplete records or documents are before you as arbitrator? Its trite that labour disputes matters,especially related to dismissals where reinstatement or compensation is one possible outcome must be dealt with expeditiously and with the minimum of legal formalities. But what if documents or records of proceedings are incomplete or not filed at all? Especially when matters are set down well in advance and parties have had enough time to rectify any defect? The Labour Appeal Court provides directions in this regards in Fountas v Brolaz Projects (Pty) Ltd and Others [2006] ZALAC 12 (17 May 2006) The appellant,in this case, a former employee of the first respondent, appealed to that Court against a decision of the Labour Court in terms of which that Court reviewed and set aside a certain arbitration award. That arbitration award had been issued by the arbitrator in a dispute between the appellant and the Borlaz (first respondent) about whether or not the first respondent had dismissed the appellant and, if so, whether or not such dismissal had been fair. The arbitration award was to the effect that the appellant had been dismissed and that his dismissal had been substantively fair but procedurally unfair. In terms of that award the first respondent had been ordered to pay the appellant certain compensation. A major procedural issue had arisen namely the incompleteness of the material records of the arbitration proceedings pursuant to which the arbitration award which was the subject of the review proceedings in the Court a quo was issued. Nkabinde AJA, as she then was held the view there could be no doubt that the Court a quo should not have proceeded to consider the merits of the review application in the matter when there was material evidence missing in the record. So what should be done? The one would be to dismiss the arbitration after an enquiry why and whether the applicant had enough time to obtain those records and to make them available especially if they are material. This is not an option that a commissioner can take lightly because it would have shut the door on a financially challenged person who would have to apply to court by way of review. However, it is a decision that,I submit a commissioner may take in an appropriate case. The other, more preferable option that he or she could take would have been to postpone the matter or to strike it off the roll to enable the applicant or all parties to take such steps as might not have been taken earlier to provide a complete record. The latter option is one that courts usually adopt unless it is dealing with a case where considerations of fair play between the parties, finality of litigation and others demand that the application be dismissed without the consideration of the merits. This would occur where, for example, the matter had dragged on for a long time and the relevant party had had ample opportunity to reconstruct the record but had, for no acceptable reason, failed to do so. There is a dearth of case law on the issue. In cases such as Department of Justice v Hartzenberg 2002 (1) SA 103 (LAC); (2001) 22 ILJ 1806 (LAC), JDG Trading (Pty)Ltd t/a Russels v Witcher NO & others (2001) 22 ILJ 648 (LAC) and Lifecare Special Health Services (Pty)Ltd t/a Ekuhlengeni Care Centre v Commission for Conciliation,, Mediation and Arbitration & others (2003) 24 ILJ 931 (LAC) the Labour Appeal Court has previously dealt with such situations where in an appeal or review application the record was incomplete or had been lost. What would you do? Saber Ahmed Jazbhay (Candidate Commissioner) Saturday 20.9.2014)
Posted on: Sat, 20 Sep 2014 16:36:28 +0000
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