Diedricks v Expert-Tech (PTY) Ltd and Others (PR 168/20) [2022] ZALCPE 31 (31 October 2022)

Diedricks v Expert-Tech (PTY) Ltd and Others (PR 168/20) [2022] ZALCPE 31 (31 October 2022)

The commissioner failed to consider the applicant's application for postponement of the arbitration, which constituted a gross irregularity and a defect as envisaged in section 145(2) of the LRA. This omission breached the commissioner's duty under section 138(1) of the LRA to conduct the arbitration fairly. The commissioner misconceived the dispute by dismissing the applicant's case without properly considering the postponement application. As a result, the award is susceptible to review and must be set aside. The matter is remitted for arbitration de novo before a different commissioner.

Citation
[2022] ZALCPE 31
Parties
Applicant: Rikus Diedricks; Respondent: Expert-Tech (PTY) Ltd; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: Commissioner Sipho Smith N.O.
Court
Labour Court Port Elizabeth
Jurisdiction
South Africa
Judgment Date
31 October 2022
Case Number
PR 168/20
Procedural Posture
Review Application / Judgment
Outcome
Application for review granted; arbitration award set aside and matter remitted for hearing de novo.
Judges
Z Lallie
Legal Topics
Review of Arbitration Award, Postponement of Arbitration, Gross Irregularity, Commissioner Misconduct, Ccma Rules, Section 145 Lra
Labour Law Civil Procedure Review of Arbitration Award Postponement of Arbitration Gross Irregularity Commissioner Misconduct Ccma Rules Section 145 Lra

Case Brief

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Parties

Rikus Diedricks

Applicant

Expert-Tech (PTY) Ltd

Respondent

Commission for Conciliation Mediation and Arbitration

Respondent

Commissioner Sipho Smith N.O.

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the commissioner committed gross misconduct or irregularity by failing to consider the applicant's postponement application.
  2. 2 Whether the dismissal of the applicant's case without considering the postponement application constitutes a reviewable defect under section 145(2) of the LRA.
  3. 3 Whether the arbitration proceedings were conducted fairly in accordance with section 138(1) of the LRA.

Ratio Decidendi

The commissioner failed to consider the applicant's application for postponement of the arbitration, which constituted a gross irregularity and a defect as envisaged in section 145(2) of the LRA. This omission breached the commissioner's duty under section 138(1) of the LRA to conduct the arbitration fairly. The commissioner misconceived the dispute by dismissing the applicant's case without properly considering the postponement application. As a result, the award is susceptible to review and must be set aside. The matter is remitted for arbitration de novo before a different commissioner.

Court Disposition

Application for review granted; arbitration award set aside and matter remitted for hearing de novo.

Orders

  • The dismissal ruling issued by the third respondent under case number ECPE4746-20 dated 28 September 2020 is reviewed and set aside.
  • The matter is remitted to the second respondent for the arbitration to be heard de novo by a commissioner other than the third respondent.