Bargaining Council for the Building Industry v Mabalane N.O. And Others (JR 1546//02) [2007] ZALC 55 (7 September 2007)

Bargaining Council for the Building Industry v Mabalane N.O. And Others (JR 1546//02) [2007] ZALC 55 (7 September 2007)

The Labour Court found that the CCMA Commissioner committed a reviewable irregularity by refusing to entertain the employer's application for postponement on its merits, relying instead on an alleged prior ruling by a senior commissioner. The Commissioner failed to apply his mind to the merits of the application and disregarded the audi alteram partem principle by denying the employer an opportunity to be heard. The Commissioner also failed to consider the prejudice to the employer, whose main witness was unable to attend due to work commitments. The Court held that the CCMA Rules require a formal application for postponement to be considered on its merits, and that the Commissioner was...

Citation
[2007] ZALC 55
Parties
Applicant: Bargaining Council for the Building Industry; Respondent: Mabalane S N.O.; Respondent: The Commissioner for Conciliation, Mediation and Arbitration; Respondent: Lemao TS
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
7 September 2007
Case Number
JR 1546//02
Procedural Posture
Review Application / Labour Court Review of CCMA Arbitration Award
Outcome
Review application granted; arbitration award set aside; dispute remitted for hearing before a different Commissioner; no order as to costs.
Judges
Basson
Legal Topics
Postponement of Arbitration, Audi Alteram Partem, Reviewable Irregularity, Ccma Rules, Condonation
Labour Law Civil Procedure Postponement of Arbitration Audi Alteram Partem Reviewable Irregularity Ccma Rules Condonation

Case Brief

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Parties

Bargaining Council for the Building Industry

Applicant

Mabalane S N.O.

Respondent

The Commissioner for Conciliation, Mediation and Arbitration

Respondent

Lemao TS

Respondent

Procedural Posture

Review Application / Labour Court Review of CCMA Arbitration Award

Legal Issues

  1. 1 Whether the CCMA Commissioner committed a reviewable irregularity by refusing the employer's application for postponement without considering its merits.
  2. 2 Whether the Commissioner failed to apply the audi alteram partem principle by denying the employer an opportunity to be heard.
  3. 3 Whether the arbitration award should be set aside and the dispute remitted for hearing before a different Commissioner.

Ratio Decidendi

The Labour Court found that the CCMA Commissioner committed a reviewable irregularity by refusing to entertain the employer's application for postponement on its merits, relying instead on an alleged prior ruling by a senior commissioner. The Commissioner failed to apply his mind to the merits of the application and disregarded the audi alteram partem principle by denying the employer an opportunity to be heard. The Commissioner also failed to consider the prejudice to the employer, whose main witness was unable to attend due to work commitments. The Court held that the CCMA Rules require a formal application for postponement to be considered on its merits, and that the Commissioner was...

Court Disposition

Review application granted; arbitration award set aside; dispute remitted for hearing before a different Commissioner; no order as to costs.

Orders

  • The late filing of the review application is condoned.
  • The award of the First Respondent, Commissioner Mabalane, under case number FS6517 and dated 19 July 2002 is reviewed and set aside.