Dyonase v Building Industry Bargaining Council and Others (C261/2018) [2021] ZALCCT 52 (6 August 2021)

Dyonase v Building Industry Bargaining Council and Others (C261/2018) [2021] ZALCCT 52 (6 August 2021)

The Labour Court found that the arbitrator's refusal of condonation was issued without reasons and in the absence of a recorded hearing. The applicant's allegations regarding the lack of a record and the circumstances of the condonation hearing were undisputed, as the respondents did not oppose the application. The Court held that, while it would ordinarily intervene on the merits, the absence of a record and the lack of reasons for the ruling made it impossible to interrogate the arbitrator's reasoning or the submissions made by the Third Respondent. The Court determined that the appropriate remedy was to remit the matter to the Bargaining Council for a condonation hearing de novo before...

Citation
[2021] ZALCCT 52
Parties
Applicant: Thandolwethu Dyonase; Respondent: The Building Industry Bargaining Council; Respondent: Commissioner G. McEwan N.O.; Respondent: Forrest Painting (Pty) Ltd
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
6 August 2021
Case Number
C261/2018
Procedural Posture
Review Application / Judgment
Outcome
Condonation ruling reviewed and set aside; matter remitted for condonation hearing de novo.
Judges
N Reddy
Legal Topics
Condonation, Review of Arbitration Award, Unfair Dismissal, Absence of Record
Labour Law Civil Procedure Condonation Review of Arbitration Award Unfair Dismissal Absence of Record

Case Brief

Summary, issues, holding and outcome

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Parties

Thandolwethu Dyonase

Applicant

The Building Industry Bargaining Council

Respondent

Commissioner G. McEwan N.O.

Respondent

Forrest Painting (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitrator's refusal of condonation for the late referral of the unfair dismissal dispute was reasonable.
  2. 2 Whether the absence of a recorded condonation hearing precludes the Labour Court from intervening on the merits.
  3. 3 What is the appropriate remedy when a condonation ruling is issued without reasons and no record exists.

Ratio Decidendi

The Labour Court found that the arbitrator's refusal of condonation was issued without reasons and in the absence of a recorded hearing. The applicant's allegations regarding the lack of a record and the circumstances of the condonation hearing were undisputed, as the respondents did not oppose the application. The Court held that, while it would ordinarily intervene on the merits, the absence of a record and the lack of reasons for the ruling made it impossible to interrogate the arbitrator's reasoning or the submissions made by the Third Respondent. The Court determined that the appropriate remedy was to remit the matter to the Bargaining Council for a condonation hearing de novo before...

Court Disposition

Condonation ruling reviewed and set aside; matter remitted for condonation hearing de novo.

Orders

  • The condonation ruling of the Second Respondent under case number BIGH26-18 dated 15 February 2018 is reviewed and set aside.
  • The matter is remitted to the Building Industry Bargaining Council for a determination on condonation de novo before an arbitrator other than the Second Respondent.