Balasana v The Motor Bargaining Council and Others (P309/09) [2010] ZALC 124; [2011] 2 BLLR 161 (LC) ; (2011) 32 ILJ 297 (LC) (26 August 2010)

Balasana v The Motor Bargaining Council and Others (P309/09) [2010] ZALC 124; [2011] 2 BLLR 161 (LC) ; (2011) 32 ILJ 297 (LC) (26 August 2010)

The court found that the applicant’s acceptance of compensation did not amount to unequivocal waiver or acquiescence to the arbitration award. The time period between payment and the filing of the review application, as well as the lack of evidence of unconditional acceptance, indicated that the applicant did not abandon his right to review. The respondent failed to discharge the onus of proving peremption. Regarding the incomplete record, the court acknowledged the applicant’s limited capacity to reconstruct the record and the commissioner’s failure to properly record proceedings. Dismissing the review on this basis would be unjust. The practical and fair approach was to remit the...

Citation
[2010] ZALC 124
Parties
Applicant: Unathi Balasana; Respondent: The Motor Bargaining Council; Respondent: G Edwards; Respondent: Tiger Wheel and Tyre
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
26 August 2010
Case Number
P309/09
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is set aside and the dispute is remitted for fresh consideration before a different commissioner.
Judges
Molahlehi
Legal Topics
Unfair Dismissal, Arbitration Award Review, Peremption, Reinstatement, Record Reconstruction
Labour Law Unfair Dismissal Arbitration Award Review Peremption Reinstatement Record Reconstruction

Case Brief

Summary, issues, holding and outcome

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Parties

Unathi Balasana

Applicant

The Motor Bargaining Council

Respondent

G Edwards

Respondent

Tiger Wheel and Tyre

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the applicant waived or acquiesced to the arbitration award by accepting compensation.
  2. 2 Whether the commissioner’s decision not to order reinstatement was supported by the evidence.
  3. 3 Whether the absence of a complete record of arbitration proceedings precludes review of the award.

Ratio Decidendi

The court found that the applicant’s acceptance of compensation did not amount to unequivocal waiver or acquiescence to the arbitration award. The time period between payment and the filing of the review application, as well as the lack of evidence of unconditional acceptance, indicated that the applicant did not abandon his right to review. The respondent failed to discharge the onus of proving peremption. Regarding the incomplete record, the court acknowledged the applicant’s limited capacity to reconstruct the record and the commissioner’s failure to properly record proceedings. Dismissing the review on this basis would be unjust. The practical and fair approach was to remit the...

Court Disposition

The arbitration award is set aside and the dispute is remitted for fresh consideration before a different commissioner.

Orders

  • The applicant has not acquiesced to the arbitration award by accepting payment from the respondent.
  • The arbitration award is set aside.