POPCRU obo Happy Vincent Cindi v The GPSSBC and Others

Happy Vincent Cindi was dismissed on account of misconduct. He referred an unfair dismissal dispute to the GPSSBC, where Commissioner Serero issued an arbitration award finding the dismissal fair. POPCRU, on behalf of Cindi, launched a review application to set aside the award. The transcript of the arbitration hearing could not be reconstructed as the tapes were lost. POPCRU approached the Labour Court under rule 11(3) seeking a direction that the matter be remitted to the bargaining council for a hearing de novo before another commissioner. The first respondent consented to the remittal, and the application stood unopposed.

• Whether rule 11(3) is the appropriate procedure where the practice manual already provides for a specified procedure
• The correct interpretation of clause 11.2.4 of the practice manual dealing with incomplete records
• Whether a matter can be remitted for a hearing de novo without first reviewing and setting aside the impugned arbitration award
• Whether a consent order under rule 17 is appropriate in review applications involving arbitration awards
• The appropriate procedure when faced with a limping or incomplete arbitration record
• Whether absence of a record automatically justifies remittal without application of the constitutional standard of review

1. The application is dismissed. 2. There is no order as to costs.

1. Where the practice manual provides a specified procedure, rule 11(3) should not be invoked as it applies only to situations not provided for in the rules or practice manual. 2. Under clause 11.2.4 of the practice manual, remission of a matter can only happen after the impugned arbitration award has been reviewed and set aside, otherwise the functus officio principle is offended and two administrative decisions on the same dispute would exist. 3. An arbitration award is an administrative decision that exists with legal consequences until set aside by way of judicial review (applying Oudekraal principle). 4. Rule 17 consent orders are inappropriate in arbitration award reviews because the Court must apply the constitutional standard of review established in Sidumo, regardless of whether parties consent to the relief. 5. The absence of a record is a reviewable irregularity, but does not automatically warrant setting aside an award - the constitutional test of reasonableness must still be satisfied. 6. Remittal is a statutory power under section 145(4)(b) of the LRA that can only be exercised after setting aside an award, not a relief per se.

The Court observed that the majority decision in Baloyi v MEC for Health and Social Development did not authoritatively decide that remittal is the only route where a record is limping - those remarks were made obiter. The dissenting judgment of Froneman J more decisively addressed the difficulty of determining a review with an incomplete record. The Court noted that it would be inappropriate to elevate the absence of a record to something akin to an unreasonable award - presence of a record assists the reviewing court but absence of irrelevant portions may be meaningless. The Court commented that failure to keep a record is misconduct by the administrative body but may not distort the outcome reached. In a proper case for remission, the same commissioner should hear the matter again rather than another commissioner, as the first arbitrator may have done nothing wrong. The Court suggested that parties may enter into an agreement to forgo the final and binding effect of an arbitration award, but even then, mere consent is insufficient without application of the constitutional standard.

This case provides important guidance on procedural matters in labour law review applications, particularly where records are incomplete or missing. It clarifies that: (1) parties cannot circumvent established procedures in the practice manual by invoking rule 11(3); (2) remittal of a matter cannot occur without first setting aside the impugned award to avoid offending the functus officio principle; (3) consent orders are inappropriate in arbitration award reviews as the constitutional standard of reasonableness must still be applied; (4) the absence of a record does not automatically justify setting aside an award - the constitutional test must still be satisfied; and (5) remittal is a power of the Court under section 145(4) of the LRA, not a relief. The judgment reinforces the finality of arbitration awards as administrative decisions and the need for judicial deference to administrative agencies unless the constitutional standard for review is met.