Consol Ltd v Kanjee and Others (JR1118/05) [2007] ZALC 139; (2008) 29 ILJ 1474 (LC) (11 December 2007)

Consol Ltd v Kanjee and Others (JR1118/05) [2007] ZALC 139; (2008) 29 ILJ 1474 (LC) (11 December 2007)

The commissioner committed a reviewable irregularity by failing to afford both parties an opportunity to make submissions before dismissing the application for further and better particulars and issuing a cost order. The audi alteram partem principle was not followed, which is a fundamental requirement of fairness in adjudicative proceedings. While the applicant, as employer, bears the onus to prove the fairness of the dismissal under section 192 of the Labour Relations Act, there is no legal obligation on the first respondent to provide further and better particulars regarding the alleged unfairness. The Bargaining Council rules do not require such particulars, and clarity can be...

Citation
[2007] ZALC 139
Parties
Applicant: Consol Limited; Respondent: Karen Lynn Kanjee; Respondent: National Bargaining Council for the Chemical Industry; Respondent: Dreyer, Lynette N.O.
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
11 December 2007
Case Number
JR1118/05
Procedural Posture
Review Application / Judgment
Outcome
The review application succeeds. The commissioner's ruling is set aside. The applicant's request for further and better particulars is dismissed. The dispute is referred to the Bargaining Council for arbitration before another commissioner. Each party is to pay its own costs.
Judges
Francis
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Audi Alteram Partem, Costs Order
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Audi Alteram Partem Costs Order

Case Brief

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Parties

Consol Limited

Applicant

Karen Lynn Kanjee

Respondent

National Bargaining Council for the Chemical Industry

Respondent

Dreyer, Lynette N.O.

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the commissioner committed a reviewable irregularity by failing to afford the parties an opportunity to be heard before making a ruling.
  2. 2 Whether the first respondent was obliged to provide further and better particulars regarding the alleged unfair dismissal.
  3. 3 Whether the cost order against the applicant was justified.

Ratio Decidendi

The commissioner committed a reviewable irregularity by failing to afford both parties an opportunity to make submissions before dismissing the application for further and better particulars and issuing a cost order. The audi alteram partem principle was not followed, which is a fundamental requirement of fairness in adjudicative proceedings. While the applicant, as employer, bears the onus to prove the fairness of the dismissal under section 192 of the Labour Relations Act, there is no legal obligation on the first respondent to provide further and better particulars regarding the alleged unfairness. The Bargaining Council rules do not require such particulars, and clarity can be...

Court Disposition

The review application succeeds. The commissioner's ruling is set aside. The applicant's request for further and better particulars is dismissed. The dispute is referred to the Bargaining Council for arbitration before another commissioner. Each party is to pay its own costs.

Orders

  • The ruling made by the commissioner on 14 April 2005 under case number GPCHEM229 is reviewed and set aside.
  • The applicant's request for further and better particulars is dismissed.