Blue Financial Services Limited v CCMA and Others (JA 53/11 , JR 2819/09) [2014] ZALAC 129 (16 May 2014)

Blue Financial Services Limited v CCMA and Others (JA 53/11 , JR 2819/09) [2014] ZALAC 129 (16 May 2014)

The Labour Appeal Court found that the commissioner’s refusal to allow the appellant to call Mr Reinders as a witness to counter the unfavourable evidence of Mr Kachidza was unreasonable and constituted a material irregularity. The commissioner speculated that calling Mr Reinders would result in a mere stalemate, but failed to consider that the outcome could have been different if Mr Reinders’ evidence was believed. The entitlement to call evidence to contradict unfavourable testimony is fundamental to fairness in proceedings. The irregularity was material and influenced the outcome of the arbitration, as the commissioner’s findings on substantive fairness and compensation were affected...

Citation
[2014] ZALAC 129
Parties
Appellant: Blue Financial Services Limited; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: J Tsabadi N.O.; Respondent: Andrew William Paterson
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
16 May 2014
Case Number
JA 53/11
Procedural Posture
Civil Appeal / Appeal From Labour Court Judgment Dismissing Review Application
Outcome
Appeal upheld; Labour Court order set aside; matter referred back to CCMA for hearing de novo before a different commissioner; no order as to costs.
Judges
Coppin, Tlaletsi, Ndlovu
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Procedural Irregularity, Compensation for Unfair Dismissal
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Procedural Irregularity Compensation for Unfair Dismissal

Case Brief

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Parties

Blue Financial Services Limited

Appellant

Commission for Conciliation, Mediation and Arbitration

Respondent

J Tsabadi N.O.

Respondent

Andrew William Paterson

Respondent

Procedural Posture

Civil Appeal / Appeal From Labour Court Judgment Dismissing Review Application

Legal Issues

  1. 1 Whether the commissioner committed a material irregularity by refusing to allow the appellant to call a witness to counter unfavourable evidence.
  2. 2 Whether the refusal to allow the witness affected the outcome of the arbitration and rendered the award reviewable.
  3. 3 Whether the dismissal of Mr Paterson was substantively and procedurally fair.

Ratio Decidendi

The Labour Appeal Court found that the commissioner’s refusal to allow the appellant to call Mr Reinders as a witness to counter the unfavourable evidence of Mr Kachidza was unreasonable and constituted a material irregularity. The commissioner speculated that calling Mr Reinders would result in a mere stalemate, but failed to consider that the outcome could have been different if Mr Reinders’ evidence was believed. The entitlement to call evidence to contradict unfavourable testimony is fundamental to fairness in proceedings. The irregularity was material and influenced the outcome of the arbitration, as the commissioner’s findings on substantive fairness and compensation were affected...

Court Disposition

Appeal upheld; Labour Court order set aside; matter referred back to CCMA for hearing de novo before a different commissioner; no order as to costs.

Orders

  • The late lodging of the appeal is condoned.
  • The appeal is upheld and no order as to costs is made.