Aquasoft Investments CC v Masango and Others (D 937/08) [2011] ZALCD 17 (30 September 2011)

Aquasoft Investments CC v Masango and Others (D 937/08) [2011] ZALCD 17 (30 September 2011)

The court found that the commissioner failed to properly resolve the irreconcilable factual disputes between the parties regarding the termination of employment. The commissioner did not make necessary findings on the credibility, reliability, and probabilities of the witnesses' versions, nor did he apply the correct legal principles for constructive dismissal. The award was not rationally connected to the evidence and law, constituting a gross irregularity in the arbitration proceedings. As the full transcript of evidence was not before the court, it was not possible to substitute the award. The matter was referred to the CCMA for a rehearing before another commissioner.

Citation
[2011] ZALCD 17
Parties
Applicant: Aquasoft Investments CC; Respondent: Nomusa Masango; Respondent: J Ngwane N.O; Respondent: Commission for Conciliation Mediation and Arbitration
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
30 September 2011
Case Number
D 937/08
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award was reviewed and set aside. The matter was referred to the CCMA for a hearing de novo before another commissioner. No order as to costs was made.
Judges
Reddy AJ
Legal Topics
Constructive Dismissal, Review of Arbitration Award, Unfair Dismissal, Procedural Fairness
Labour Law Civil Procedure Constructive Dismissal Review of Arbitration Award Unfair Dismissal Procedural Fairness

Case Brief

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Parties

Aquasoft Investments CC

Applicant

Nomusa Masango

Respondent

J Ngwane N.O

Respondent

Commission for Conciliation Mediation and Arbitration

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the commissioner committed a gross irregularity in the conduct of the arbitration proceedings.
  2. 2 Whether the employee was constructively dismissed or resigned voluntarily.
  3. 3 Whether the arbitration award was rationally connected to the evidence and law.

Ratio Decidendi

The court found that the commissioner failed to properly resolve the irreconcilable factual disputes between the parties regarding the termination of employment. The commissioner did not make necessary findings on the credibility, reliability, and probabilities of the witnesses' versions, nor did he apply the correct legal principles for constructive dismissal. The award was not rationally connected to the evidence and law, constituting a gross irregularity in the arbitration proceedings. As the full transcript of evidence was not before the court, it was not possible to substitute the award. The matter was referred to the CCMA for a rehearing before another commissioner.

Court Disposition

The arbitration award was reviewed and set aside. The matter was referred to the CCMA for a hearing de novo before another commissioner. No order as to costs was made.

Orders

  • The arbitration award made by the second respondent and dated 19 October 2008 is reviewed and set aside.
  • The matter is referred to the CCMA for a hearing de novo before another commissioner.