Missing CCMA records a common headache for courts

21 January 2016 - 10:59 By Ernest Mabuza

Two recent Constitutional Court judgments have shone the spotlight on the persistent problem faced by labour courts where they are asked to review arbitration proceedings but the records have gone missing. In one of the judgments last month‚ the Constitutional Court remarked that incomplete‚ patched-up records caused by faulty mechanical equipment or lost tape recordings in the Commission for Conciliation‚ Mediation and Arbitration (CCMA) were not uncommon. The court said it was sometimes possible to determine such 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 both cases. In a case between the MEC and department of health in Limpopo 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 issue of the CCMA's obligations in terms of record-keeping was not a key issue in either of these two matters‚ but Justice Ray Zondo dealt extensively with the issue of the missing records 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‚” Nieuwoudt said. Nieuwoudt said the courts generally should be more critical and should supervise the CCMA more strictly. He praised Zondo’s practical suggestion that the arbitrators‚ in order to try and minimise the risk of incomplete or missing records of arbitration proceedings‚ should inspect the recording machine to satisfy themselves that the equipment functioned properly.Nieuwoudt said even if proceedings were recorded correctly‚ records often went missing later. He 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 bargaining councils liable for the mishaps as suggested by Zondo‚ Nieuwoudt said. Zondo suggested that costs orders against the CCMA and bargaining councils for failing to keep complete records might have to be seriously considered. 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 increases the frustration of the parties. If parties had a recourse‚ it would be a lot better.” - TMG Digital/TMG Courts and Law..

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