Derby Supermarket v CCMA and Others (D778/12) [2013] ZALCD 36 (10 December 2013)

Derby Supermarket v CCMA and Others (D778/12) [2013] ZALCD 36 (10 December 2013)

The court found that the arbitrator committed serious procedural irregularities by failing to revisit the issue of legal representation after the employer's consultant was excluded, and by treating the employee's representative's opening statement as evidence without corroboration or cross-examination. The arbitrator improperly burdened the employer with the onus to prove fairness of dismissal based on a provisional assumption of dismissal, despite the issue being contested and without proper evidentiary foundation. The only evidence properly admitted was from the employer's witness, and the arbitrator failed to ensure that the critical versions were tested under oath. These failures...

Citation
[2013] ZALCD 36
Parties
Applicant: Derby Supermarket; Respondent: Commission for Conciliation, Mediation and Arbitration (CCMA); Respondent: Commissioner E du Preez (N.O.); Respondent: Vineshree Rubichand
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
10 December 2013
Case Number
D778/12
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The matter is remitted to the CCMA for a hearing de novo before a different commissioner.
Judges
R Lagrange
Legal Topics
Ccma Arbitration, Legal Representation, Procedural Irregularity, Onus of Proof, Dismissal, Remittal for De Novo Hearing
Labour Law Civil Procedure Ccma Arbitration Legal Representation Procedural Irregularity Onus of Proof Dismissal Remittal for De Novo Hearing

Case Brief

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Parties

Derby Supermarket

Applicant

Commission for Conciliation, Mediation and Arbitration (CCMA)

Respondent

Commissioner E du Preez (N.O.)

Respondent

Vineshree Rubichand

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator committed gross procedural irregularities in the conduct of the arbitration hearing.
  2. 2 Whether legal representation was improperly permitted after the original reason for allowing it fell away.
  3. 3 Whether the arbitrator improperly treated opening statements as evidence without corroboration.

Ratio Decidendi

The court found that the arbitrator committed serious procedural irregularities by failing to revisit the issue of legal representation after the employer's consultant was excluded, and by treating the employee's representative's opening statement as evidence without corroboration or cross-examination. The arbitrator improperly burdened the employer with the onus to prove fairness of dismissal based on a provisional assumption of dismissal, despite the issue being contested and without proper evidentiary foundation. The only evidence properly admitted was from the employer's witness, and the arbitrator failed to ensure that the critical versions were tested under oath. These failures...

Court Disposition

The arbitration award is reviewed and set aside. The matter is remitted to the CCMA for a hearing de novo before a different commissioner.

Orders

  • The second respondent’s award dated 22 July 2012 issued under case number KNPM 1247-12 is reviewed and set aside.
  • The matter is remitted back to the first respondent, which must set the matter down for a hearing de novo before a commissioner other than the second respondent.