Empilweni Management Solutions CC v CCMA (D484/10) [2011] ZALCD 25 (29 June 2011)

Empilweni Management Solutions CC v CCMA (D484/10) [2011] ZALCD 25 (29 June 2011)

The court found that the arbitrator committed a gross irregularity by failing to specifically invite the applicant's representative to lead evidence on the fairness of the dismissal after the third respondent closed his case. Despite indicating earlier that evidence would be required, the arbitrator adjourned the proceedings and issued an award without ensuring the applicant was given a proper opportunity to rebut the onus under section 192(2) of the Labour Relations Act. The court held that this procedural lapse, particularly in light of the applicant's lack of legal representation and the complexity of the matter, warranted the review and setting aside of the award. The matter was...

Citation
[2011] ZALCD 25
Parties
Applicant: Empilweni Management Solutions CC; Respondent: The Commission for Mediation Arbitration and Conciliation; Respondent: Commissioner Sugen Reddy; Respondent: Kiruban Naidoo
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
29 June 2011
Case Number
D484/10
Procedural Posture
Review Application / Judgment
Outcome
The award of the second respondent is reviewed and set aside. The matter is referred back to the CCMA for fresh arbitration before a different commissioner. No order as to costs.
Judges
Gush
Legal Topics
Review of Arbitration Award, Onus of Proof, Procedural Fairness, Gross Irregularity
Labour Law Civil Procedure Review of Arbitration Award Onus of Proof Procedural Fairness Gross Irregularity

Case Brief

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Parties

Empilweni Management Solutions CC

Applicant

The Commission for Mediation Arbitration and Conciliation

Respondent

Commissioner Sugen Reddy

Respondent

Kiruban Naidoo

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitrator committed a gross irregularity by failing to invite the applicant to lead evidence on the fairness of the dismissal.
  2. 2 Whether the award should be reviewed and set aside due to procedural unfairness.
  3. 3 Whether the matter should be referred back for fresh arbitration.

Ratio Decidendi

The court found that the arbitrator committed a gross irregularity by failing to specifically invite the applicant's representative to lead evidence on the fairness of the dismissal after the third respondent closed his case. Despite indicating earlier that evidence would be required, the arbitrator adjourned the proceedings and issued an award without ensuring the applicant was given a proper opportunity to rebut the onus under section 192(2) of the Labour Relations Act. The court held that this procedural lapse, particularly in light of the applicant's lack of legal representation and the complexity of the matter, warranted the review and setting aside of the award. The matter was...

Court Disposition

The award of the second respondent is reviewed and set aside. The matter is referred back to the CCMA for fresh arbitration before a different commissioner. No order as to costs.

Orders

  • The award of the second respondent in CCMA case number KNDB682-10 is reviewed and set aside and referred back to the first respondent to be heard afresh before a commissioner other than the second respondent.
  • There is no order as to costs.