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Constitutional Court reviews and sets aside an arbitration award in the absence of a ‘record

By Fiona Leppan, Director and Thandeka Nhleko, Associate, Employment, Cliffe Dekker Hofmeyr


The recent Constitutional Court (CC) judgment of Baloyi v Member of the Executive Committee for Health and Social Development, Limpopo and Others (CCT227/14) [2015] ZACC 39 (2015) deals with the situation where the Labour Court is called on to review an arbitration award when the record of the arbitration proceedings has gone missing and there has been no proper attempt to reconstruct the record.


In the present case, the employee (Baloyi) was dismissed for misconduct in 2004. Baloyi was dismissed after it was discovered that he was involved in arranging the servicing of incinerators without approval. The essence of Baloyi’s defence was that he had been instructed by a medical superintendent to perform this task of servicing the incinerators. A contentious point raised by Baloyi during his disciplinary hearing, and the subsequent arbitration proceedings, was that two key witnesses (which could either confirm or refute his defence) were not called by the Department so Baloyi’s defence was not properly ventilated during the arbitration proceedings.


The arbitrator found in favour of the employer, (the Department on the reasoning that Baloyi had acted outside the parameters set by the Department). The arbitrator found, that Boloyi should have reasonably known, taking into account his years of service, that he should have investigated whether such machines actually required servicing before executing the instruction.


Due to the adverse arbitration award, Baloyi elected to take the matter on review to the Labour Court. After close of pleadings and at the hearing of the matter, it became evident that the record of the arbitration proceedings had gone missing. It is also noted that the parties’ attempt to construct the record had failed. The Labour Court considered the matter and discussed Baloyi’s review.


The matter proceeded to the CC which found it sufficient to restrict its focus on the Labour Court’s decision to determine the review application in the absence of obtaining a proper record of the arbitration proceedings. The CC found that the Labour Court did not take into consideration an affidavit filed by the Bargaining Council which stated that the Bargaining Council and the arbitrator had no objection to the matter being remitted for an arbitration hearing afresh. In the majority judgment, the CC criticised the Labour Court and found that it should have remitted the matter for hearing de novo before a different arbitrator. This was also supported by the fact that the Department had withdrawn its opposition to the review application.


  • the CC found in favour of Baloyi and ordered that the arbitration award should be reviewed and set aside. As a consequence, Baloyi was reinstated to his former position of employment with effect from the date of his dismissal. In reaching its decision, the CC took cognisance of the following: Baloyi had worked for the Department for approximately 19 (nineteen) years;


  • he had no previous record of misconduct; and


  • remitting the matter to the Bargaining Council would be grievously unjust in light of the Department’s inertia and unresponsiveness and the amount of time that has lapsed since the date of Baloyi’s dismissal.


The CC found that it was justifiable to afford Baloyi an effective remedy, despite it deciding the merits of the case in the absence of a full record of the arbitration proceedings.


With regard to a court pronouncing a decision in the absence of a complete record the dissenting judgments of Froneman J and Cameron J applied a far stricter approach as both judges were of the view that the matter should have been remitted to the Bargaining Council for a hearing de novo.


This judgment attempts to give effect to the expeditious resolution of disputes in the absence of a complete record. The CC held that it is possible, in exceptional circumstances, to determine the merits of such a case by scrutinising the arbitration award as well as the accompanying documentary evidence.


For more information please contact Fiona Leppan at or Thandeka Nhleko at This email address is being protected from spambots. You need JavaScript enabled to view it.

Article published with the kind courtesy of Cliffe Dekker Hofmeyr

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