Eskom Holdings Ltd v Mthethwa NO and Others (JR 2140/05) [2007] ZALC 124 (30 August 2007)

Eskom Holdings Ltd v Mthethwa NO and Others (JR 2140/05) [2007] ZALC 124 (30 August 2007)

The court held that the commissioner committed a gross irregularity by entertaining the issue of procedural fairness, which was expressly excluded by the pre-arbitration agreement between the parties. The commissioner was bound to determine only the substantive fairness of the dismissal. By ignoring the agreement and considering procedural fairness, the commissioner denied the applicant a fair hearing. Furthermore, the commissioner’s findings on substantive fairness were unjustifiable and irrational, as they were based on irrelevant considerations such as procurement procedures and BEE credentials, which were not material to the dispute. The arbitration award was therefore reviewed and...

Citation
[2007] ZALC 124
Parties
Applicant: Eskom Holdings Limited; Respondent: Sicelo Mthethwa NO; Respondent: The Commission for Mediation Conciliation and Arbitration; Respondent: Seya Shayi
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
30 August 2007
Case Number
JR 2140/05
Procedural Posture
Review Application / Judgment
Outcome
The arbitration award is reviewed and set aside. The matter is remitted for arbitration before a different commissioner. Costs to follow the result.
Judges
Molahlehi AJ
Legal Topics
Review of Arbitration Award, Procedural Fairness, Substantive Fairness, Condonation, Gross Irregularity
Labour Law Civil Procedure Review of Arbitration Award Procedural Fairness Substantive Fairness Condonation Gross Irregularity

Case Brief

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Parties

Eskom Holdings Limited

Applicant

Sicelo Mthethwa NO

Respondent

The Commission for Mediation Conciliation and Arbitration

Respondent

Seya Shayi

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the commissioner committed a gross irregularity by considering procedural fairness contrary to the pre-arbitration agreement.
  2. 2 Whether the arbitration award was justifiable and rational in relation to the evidence presented.
  3. 3 Whether the dismissal of the employee was substantively and procedurally unfair.

Ratio Decidendi

The court held that the commissioner committed a gross irregularity by entertaining the issue of procedural fairness, which was expressly excluded by the pre-arbitration agreement between the parties. The commissioner was bound to determine only the substantive fairness of the dismissal. By ignoring the agreement and considering procedural fairness, the commissioner denied the applicant a fair hearing. Furthermore, the commissioner’s findings on substantive fairness were unjustifiable and irrational, as they were based on irrelevant considerations such as procurement procedures and BEE credentials, which were not material to the dispute. The arbitration award was therefore reviewed and...

Court Disposition

The arbitration award is reviewed and set aside. The matter is remitted for arbitration before a different commissioner. Costs to follow the result.

Orders

  • The arbitration award issued by the first respondent is reviewed and set aside.
  • The matter is remitted to the second respondent for arbitration before a commissioner other than the first respondent.