Baloyi v Member of the Executive Committee for Health and Social Development, Limpopo and Others

Mr Gezani Julius Baloyi was employed by the Department of Health and Social Development, Limpopo, from 1987 as a learner artisan, later promoted to artisan foreman and eventually senior artisan superintendent. In March 2004, he was charged with misconduct related to arrangements for servicing incinerators in May 2001. He was accused of initiating an unnecessary requisition for servicing eight incinerators, authorizing payment for services not rendered by Prominent Medical Supplies CC totaling R40,675, and confirming delivery of services that were not performed. His defence was that he acted on instructions from Dr Wasilota, the hospital superintendent. He claimed key witnesses (Dr Wasilota and Mr Mathebula) were prevented from testifying by the Head of Department. He admitted to signing the store register but claimed he did so routinely based on signatures of others and was on sick leave when payment was authorized. He was found guilty and dismissed in February 2005. His internal appeal was dismissed in June 2005. He then referred the matter to arbitration at the Public Health and Welfare Sectoral Bargaining Council. The arbitration hearing occurred in November 2005 and January 2006. The arbitrator found his dismissal both substantively and procedurally fair. Mr Baloyi sought to review this award in the Labour Court, but the mechanical recording of the arbitration proceedings was lost. Attempts to reconstruct the record failed. The arbitrator provided handwritten notes which the applicant later disputed. The Labour Court dismissed the review application despite the incomplete record. Leave to appeal was refused by the Labour Appeal Court and Supreme Court of Appeal.

• Whether the Labour Court can properly decide a review application in the absence of a complete record of arbitration proceedings
• Whether the arbitration award finding the dismissal fair should be reviewed and set aside
• What is the appropriate remedy where arbitration proceedings cannot be properly reviewed due to a lost or incomplete record
• Whether the applicant's dismissal was substantively and procedurally fair
• Whether the arbitrator applied the correct test and considered relevant factors in determining fairness of dismissal

By majority: (1) Condonation and leave to appeal are granted. (2) The appeal succeeds with costs. (3) The order in the Labour Court is replaced with: (a) The arbitrator's award is reviewed and set aside. (b) The applicant is reinstated in his former position of employment with effect from the date of his dismissal. (c) The respondents must pay the costs of the application.

It is improper for the Labour Court to dismiss a review application and decide the matter on the merits when there is no proper record of the arbitration proceedings, particularly where: (1) the record has been lost and cannot be reconstructed; (2) the party conducting the arbitration has no objection to remittal; and (3) the opposing parties have withdrawn opposition or failed to oppose. However, where remittal would be grievously unjust due to the passage of substantial time, unavailability of key witnesses, complete lack of opposition from respondents, and the employee's long unblemished service record, a court may grant substantive relief including reinstatement rather than remit the matter. The onus in arbitration of dismissal disputes is on the employer to prove the dismissal was fair, not on the employee to prove they did not act wrongly. When determining fairness of dismissal, arbitrators must consider both whether misconduct occurred and whether dismissal was an appropriate sanction in all circumstances including length of service and previous disciplinary record.

Moseneke DCJ observed that the arbitrator appeared to have committed a gross irregularity in refusing to allow the applicant's witness from the supplier to testify, and in allowing the Head of Department to prevent other relevant witnesses from testifying. The Court noted that "almost everybody has failed" the applicant in some way. The majority expressed the view that on the evidence before them (uncontroverted due to lack of opposition), it appeared the dismissal should have been held unfair. Cameron J (dissenting) addressed the broader question of when a higher court should find that what a lower tribunal recorded from proceedings is incorrect, and what level of proof is necessary for that conclusion. He also questioned why an employee who considered certain witnesses crucial to his defence failed to call them himself rather than expecting the employer to call them. Froneman J (dissenting) noted the difficulty of deciding merits on an incomplete record remains even where circumstances might appear to support finding unfair dismissal.

This case establishes important principles regarding the Labour Court's handling of review applications where the arbitration record is incomplete or missing. It affirms that courts should generally not proceed to determine review applications on incomplete records, particularly where parties have not properly attempted reconstruction. The case also demonstrates the Court's willingness to grant substantive relief rather than remit where remittal would be unjust given passage of time, unavailability of key witnesses, and the responding party's complete lack of engagement. It emphasizes the importance of proper record-keeping in arbitration proceedings and the consequences when records are lost. The case also addresses procedural fairness in disciplinary proceedings, particularly regarding an employee's right to call relevant witnesses. The decision shows consideration for employees with long, unblemished service records and the need for proportionate sanctions. The case illustrates tensions between the need for complete records for effective judicial review and the practical realities and interests of justice that may require substantive determination despite record deficiencies.