At the commencement of arbitration proceedings in the Commission for Conciliation Mediation and Arbitration or in the relevant Bargaining Council the Commissioner diligently advises all the parties that the hearing soon to commence will be recorded. It is important to note that the Commissioner is not prescribed to mechanically record the proceedings. Naturally, the purpose of the recording is to provide the parties and the Court with a complete record of the proceedings in the event that the matter is reviewed. Once the commissioner provides the arbitration award to the parties, an aggrieved party has 6 weeks in which to file their review application. The review procedure is governed by Rule 7A of the Labour Court Rules. In terms of Rule 7A(5),(6) and (7) the applicant in review proceedings is obliged to make the record available to the Court and the other party. However, the applicant is often unable to fulfil such obligation due to the fact that the CCMA or BC has filed an incomplete record. Largely to the effect that there is no recording of the proceedings available for transcription and the Commissioner's handwritten notes may not accurately reflect the proceedings or are often missing.

This issue becomes very important in that it is necessary for the Court to be placed in a position to assess for itself what the evidence before the CCMA was and whether the outcome of the arbitration was justifiably related to it and fulfil its statutory obligation in adjudicating the review application. More so as a result of the stringent test set forth in Sidumo & another v Rusternberg Platinum Mines & others .It is trite that the Court would not set aside a review on the basis that the record is defective, in fact the applicant may have the review dismissed as a result of the defective record .Furthermore, the applicant is not entitled to reconstruct the record insofar as it relevant to its case. The applicant is not to gain an unfair advantage or having review upheld simply because portions of record not germane to its case are missing .In fact the Courts have warned that there is growing trend that the absence of the record is used opportunistically to have awards reviewed.

The question then arises as to what steps the applicant is obliged to undertake in order to reconstruct the record of the arbitration proceedings or evidence required to be placed before a Court in order for it to make a decision in respect of the review application. The parties may agree in terms of Rule 17 of the Labour Court Rules to have the matter referred back to arbitration.
However, in the absence of the transcript of the electronic recording, the applicant may make use of the commissioner's bench notes as a starting point in reconstructing the record. In Lifecare Special Health Services (Pty) Ltd t/a Ekuhlengeni Care Centre v CCMA & others Comarie AJA gave directions on how the record should be reconstructed. It is clear from the judgment, where the recording of the proceedings are available to be transcribe it is unnecessary to have the commissioners notes transcribed. The learned judge Comarie AJA correctly stated that Rule 7A itself imposes no obligation upon an applicant for review additionally to transcribe and distribute an informal note of the proceedings, such as a Commissioner's bench notes . The learned judge states further that a reconstruction of the record takes place by the Commissioner(CCMA or BC) and the representatives in the matter come together, bringing their extant notes and such other documentation as may be relevant. They then endeavour to the best of their ability and recollection to reconstruct as full and accurate a record of the proceedings as the circumstances allow. This is then placed before the relevant Court with such reservations as the participants may wish to note. Whether the relevant product of their endeavours is adequate for the purpose of the appeal or review is for the court hearing same to decide, after listening to argument in the event of a dispute as to accuracy or completeness".

Notwithstanding the practical difficulties associated with the round table meeting discussed above, it appears to be a prerequisite in these circumstances. Furthermore it is trite that the applicant in review proceedings is to initiate the enquiries and steps set out in Lifecare.

In the matter of Nathaniel v Northern Cleaners Kya Sands (Pty) Ltd & Others the parties had completed the process referred in to Lifecare and there was nothing further which could be done in respect of the reconstructing the record. In this matter the Court accepted argument that the applicant cannot contend that the award of the commissioner is not rationally justifiable merely because the evidence which was adduced before him(and which presumably influenced him in his decision) cannot be placed before the Court. In these circumstances the Court must look at the award of the commissioner together with all the documentary and other evidence before him as well as the available transcript of proceedings and then decide whether the award passes muster in accordance with Sidumo.In Northern Cleaners the judge stated that it would be open to the parties to depose to the material(missing) facts in their affidavits filed in the review and if there is a dispute in that regard, have that dispute determined by oral evidence .There is further authority for the view that the court will not merely refer the matter to arbitration. There has to be a dispute of fact that cannot be resolved on the papers(Plascon-Evans Rule).

However, it is my respectful submission that where the applicant has undertaken all the steps set forth in the LifeCare and file an affidavit indicating the steps taken and further indicating the dispute of fact, the Court is therefore unable to fulfil its statutory obligation and the arbitration award should be set aside on the basis of an absent record/incomplete record the matter should be remitted back to the CCMA of BC for arbitration.