Baur Research CC v Commission For Conciliation, Mediation and Arbitration and Others (JR 28/2011) [2013] ZALCJHB 338; (2014) 35 ILJ 1528 (LC) (10 December 2013)

Baur Research CC v Commission For Conciliation, Mediation and Arbitration and Others (JR 28/2011) [2013] ZALCJHB 338; (2014) 35 ILJ 1528 (LC) (10 December 2013)

The Labour Court found that the arbitrator committed misconduct and a gross irregularity by failing to inform the applicant of its right to legal representation after allowing the third respondent to be legally represented, and by refusing the applicant's request to call witnesses. These failures deprived the applicant of a fair hearing and rendered the arbitration proceedings procedurally unfair. The court held that such procedural unfairness vitiates the entire arbitration process, irrespective of the merits of the underlying dispute. Consequently, the arbitration award was reviewed and set aside, and the matter was remitted to the CCMA for a fresh hearing before a different commissioner.

Citation
[2013] ZALCJHB 338
Parties
Applicant: Baur Research CC; Respondent: Commission For Conciliation, Mediation and Arbitration; Respondent: Commissioner Jacob Daniel Sello; Respondent: Salomone Samuel Mbiza
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
10 December 2013
Case Number
JR 28/2011
Procedural Posture
Review Application / Opposed Review Application of CCMA Arbitration Award
Outcome
The arbitration award of the second respondent is reviewed and set aside. The matter is remitted to the CCMA for arbitration de novo before a different commissioner. No order as to costs.
Judges
Snyman AJ
Legal Topics
Unfair Dismissal, Legal Representation in Arbitration, Gross Irregularity, Procedural Fairness, Misconduct by Arbitrator
Labour Law Civil Procedure Unfair Dismissal Legal Representation in Arbitration Gross Irregularity Procedural Fairness Misconduct by Arbitrator

Case Brief

Summary, issues, holding and outcome

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Parties

Baur Research CC

Applicant

Commission For Conciliation, Mediation and Arbitration

Respondent

Commissioner Jacob Daniel Sello

Respondent

Salomone Samuel Mbiza

Respondent

Procedural Posture

Review Application / Opposed Review Application of CCMA Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator's conduct deprived the applicant of a fair hearing.
  2. 2 Whether the refusal to allow the applicant to call witnesses constituted misconduct or gross irregularity.
  3. 3 Whether the failure to inform the applicant of its right to legal representation rendered the proceedings procedurally unfair.

Ratio Decidendi

The Labour Court found that the arbitrator committed misconduct and a gross irregularity by failing to inform the applicant of its right to legal representation after allowing the third respondent to be legally represented, and by refusing the applicant's request to call witnesses. These failures deprived the applicant of a fair hearing and rendered the arbitration proceedings procedurally unfair. The court held that such procedural unfairness vitiates the entire arbitration process, irrespective of the merits of the underlying dispute. Consequently, the arbitration award was reviewed and set aside, and the matter was remitted to the CCMA for a fresh hearing before a different commissioner.

Court Disposition

The arbitration award of the second respondent is reviewed and set aside. The matter is remitted to the CCMA for arbitration de novo before a different commissioner. No order as to costs.

Orders

  • The late filing of the applicant's review application is condoned.
  • The arbitration award of the second respondent, commissioner Jacob Daniel Sello, under case number GAJB 12933-10, is reviewed and set aside.