Central Air Solutions (Pty) Ltd v Shupping and Others (C705/2019) [2021] ZALCCT 77 (19 October 2021)
The Court found that the Commissioner committed gross irregularities by awarding compensation in excess of what was requested and by failing to require the employee to testify orally. These procedural defects prevented a fair trial of the issues and rendered the award unreasonable. As the record could not assist the...
Source-derived case information.
- Citation
- [2021] ZALCCT 77
- Parties
- Applicant: Central Air Solutions (Pty) Ltd; Respondent: Gadihle Mittah Shupping; Respondent: Commission for Conciliation, Mediation & Arbitration; Respondent: Commissioner David Petersen N.O.
- Court
- Labour Court Cape Town
- Jurisdiction
- South Africa
- Judgment Date
- 19 October 2021
- Case Number
- C705/2019
- Procedural Posture
- Review Application / Judgment on Unopposed Review
- Outcome
- Application to review and set aside the arbitration award is granted. The dispute is remitted for rehearing before a different Commissioner.
- Judges
- Rabkin-Naicker
- Legal Topics
- Review of Arbitration Award, Gross Irregularity, Unfair Dismissal, Remittal for Rehearing
Source-derived case record
Summary, issues, holding and outcome
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Parties
Central Air Solutions (Pty) Ltd
Applicant
Gadihle Mittah Shupping
Respondent
Commission for Conciliation, Mediation & Arbitration
Respondent
Commissioner David Petersen N.O.
Respondent
Procedural Posture
Review Application / Judgment on Unopposed Review
Legal Issues
- 1 Whether the arbitration award issued by the third respondent was vitiated by gross irregularity and misconduct.
- 2 Whether the award of twelve months compensation, when only six months was requested, was reasonable.
- 3 Whether the failure of the employee to testify viva voce rendered the proceedings unfair.
Ratio Decidendi
The Court found that the Commissioner committed gross irregularities by awarding compensation in excess of what was requested and by failing to require the employee to testify orally. These procedural defects prevented a fair trial of the issues and rendered the award unreasonable. As the record could not assist the Court in substituting the award, the only appropriate remedy was to review and set aside the award and remit the dispute for rehearing before a different Commissioner.
Court Disposition
Application to review and set aside the arbitration award is granted. The dispute is remitted for rehearing before a different Commissioner.
Orders
- The Award under case number NC2368/2019 is reviewed and set aside.
- The dispute is remitted to the second respondent for rehearing before a Commissioner other than the third respondent.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not Reportable
C705/2019
In the matter between:
CENTRAL AIR SOLUTIONS (PTY) LTD Applicant
and
GADIHLE MITTAH SHUPPING First
Respondent
COMMISSION FOR CONCILIATION.
MEDIATION & ARBITRATION Second
Respondent
COMISSIONER DAVID PETERSEN N.O. Third
Respondent
Date heard: 8 June 2021 on the papers
Delivered: Sent 18 October 2021 by email. Deemed delivered on 19 October at 10.00hr.
RABKIN-NAICKER J
[1] This is an unopposed application to review and set aside an arbitration award under case number NC2368/2019. A substantial portion of the record was in Afrikaans and the Court needed assistance in interpreting same. Thus I regret there was some delay in delivering what is in fact a short judgement. In terms of the Award, the third respondent (the Commissioner) found that the dismissal of the first respondent (the employee) was substantially unfair and awarded her 12 months compensation.
[2] Essentially the review application is based on a number of irregularities by the Commissioner. The most glaring being that the employee asked for six months compensation at the arbitration but was awarded twelve.
[3] In addition, as the transcribed record reflects, as well as the Award, the Commissioner failed to conduct the proceedings in a proper manner in that he did not direct the employee herself to give evidence viva voce, merely referring to the fact that she had made written statements. She called witnesses but did not testify herself.
[4] This extraordinary conduct, amounting to the commission of gross irregularities and misconduct by the Commissioner prevented a fair trial of the issues and could not lead to a reasonable result. The Award is therefore susceptible to review. Unfortunately, given the nature of the conduct of the proceedings the transcript cannot assist the Court in substituting the Award. I therefore make the following order:
Order
1. The Award under case number NC2368/2019 is reviewed and set aside.
2. The dispute is remitted to the second respondent for rehearing before a Commissioner other that third respondent.
H. Rabkin-Naicker
Judge of the Labour Court of South Africa
Representation:
Applicant: Peuper Austin Inc