Central Air Solutions (Pty) Ltd v Shupping and Others (C705/2019) [2021] ZALCCT 77 (19 October 2021)
- Citation
- [2021] ZALCCT 77
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Labour Court Cape Town
- Panel
- Rabkin-Naicker
- Case number
- C705/2019
More details
- Court
- Labour Court Cape Town
- Panel
- Rabkin-Naicker
- Case number
- C705/2019
On this page
Professional case brief
Research organized from the available case record
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 IncGadihle Mittah Shupping
RespondentCommission for Conciliation, Mediation & Arbitration
RespondentCommissioner David Petersen N.O.
Respondent03
Procedural history
Posture
Review Application / Judgment on Unopposed Review
04
Questions and positions
Legal issues
- 01
Whether the arbitration award issued by the third respondent was vitiated by gross irregularity and misconduct.
- 02
Whether the award of twelve months compensation, when only six months was requested, was reasonable.
- 03
Whether the failure of the employee to testify viva voce rendered the proceedings unfair.
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
Legal principles
- 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.
- 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
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Labour Court Cape Town
Judgment
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
Case-aware research
Ask AI about this case
The judgment and available research above are public. New questions open in a separate private conversation grounded in this case.