Edcon Ltd v Wilson and Others (C495/09) [2012] ZALCCT 9 (1 January 2012)

Edcon Ltd v Wilson and Others (C495/09) [2012] ZALCCT 9 (1 January 2012)

The court found that the commissioner committed a gross irregularity by admitting and relying on hearsay evidence, namely witness statements and transcripts from the disciplinary hearing, without properly determining their admissibility or weight. The commissioner failed to confine his assessment to admissible evidence, specifically the oral testimony of witnesses who appeared at the arbitration. The unchallenged evidence of Flatwell and Smith established that Janari had issued the instruction to record 'confirm Alroy' even when payment arrangements had not been confirmed, which constituted a serious breach of the applicant's policies and procedures. The court determined that the...

Citation
[2012] ZALCCT 9
Parties
Applicant: Edcon Limited; Respondent: Commissioner Dik Wilson; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Cheray Janari
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
1 January 2012
Case Number
C495/09
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award of the First Respondent is reviewed and set aside. The award is substituted with an order that Janari's dismissal was substantively fair. No order as to costs.
Judges
Van Voore AJ
Legal Topics
Unfair Dismissal, Admissibility of Hearsay Evidence, Review of Arbitration Award, Disciplinary Procedure
Labour Law Civil Procedure Unfair Dismissal Admissibility of Hearsay Evidence Review of Arbitration Award Disciplinary Procedure

Case Brief

Summary, issues, holding and outcome

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Parties

Edcon Limited

Applicant

Commissioner Dik Wilson

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Cheray Janari

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the commissioner committed a gross irregularity in admitting and assessing hearsay evidence.
  2. 2 Whether the dismissal of Janari was substantively and procedurally fair.
  3. 3 Whether the arbitration award should be set aside and substituted.

Ratio Decidendi

The court found that the commissioner committed a gross irregularity by admitting and relying on hearsay evidence, namely witness statements and transcripts from the disciplinary hearing, without properly determining their admissibility or weight. The commissioner failed to confine his assessment to admissible evidence, specifically the oral testimony of witnesses who appeared at the arbitration. The unchallenged evidence of Flatwell and Smith established that Janari had issued the instruction to record 'confirm Alroy' even when payment arrangements had not been confirmed, which constituted a serious breach of the applicant's policies and procedures. The court determined that the...

Court Disposition

The arbitration award of the First Respondent is reviewed and set aside. The award is substituted with an order that Janari's dismissal was substantively fair. No order as to costs.

Orders

  • The arbitration award of the First Respondent is reviewed and set aside.
  • The arbitration award is substituted with an award that the dismissal of Janari was substantively fair.