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South Africa Judgment

Labour Court Cape Town

Central Air Solutions (Pty) Ltd v Shupping and Others (C705/2019) [2021] ZALCCT 77 (19 October 2021)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

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.

02

Material facts

Parties

Central Air Solutions (Pty) Ltd

Applicant Counsel: Peuper Austin Inc

Gadihle Mittah Shupping

Respondent

Commission for Conciliation, Mediation & Arbitration

Respondent

Commissioner David Petersen N.O.

Respondent

03

Procedural history

  1. Posture

    Review Application / Judgment on Unopposed Review

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant contended that the Commissioner committed several irregularities, most notably awarding twelve months compensation when the employee only requested six months. The applicant further argued that the Commissioner failed to conduct the proceedings properly by not requiring the employee to testify orally, relying instead on written statements. This conduct, according to the applicant, amounted to gross irregularity and misconduct, preventing a fair trial of the issues.
Respondent
No argument was submitted by the respondents as the application was unopposed.

05

Court’s reasoning

  1. 01

    Labour Relations Act 66 of 1995

    An arbitration award may be reviewed and set aside if the Commissioner commits gross irregularities or misconduct that prevent a fair trial of the issues.

  2. 02

    Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC)

    Compensation awarded should not exceed what is requested by the employee unless justified by the evidence.

06

Ratio, limits and disposition

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.

Obiter and limits

  • The delay in delivering judgment was occasioned by the need to interpret a substantial portion of the record, which was in Afrikaans.
  • The conduct of the Commissioner in not directing the employee to give oral evidence was extraordinary and unacceptable in arbitration proceedings.

Court disposition

Application to review and set aside the arbitration award is granted. The dispute is remitted for rehearing before a different Commissioner.

  • 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.

Source and reliance status

Labour Court Cape Town

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Judgment text

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Source document

Labour Court Cape Town

Judgment

[2021] ZALCCT 77

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

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC)

Case cited

Labour Relations Act 66 of 1995

Legislation

Legislation referenced in the available case record.

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