Ezulwini Mining v Commission For Conciliation Mediation and Arbitration and Others (JR452/12) [2014] ZALCJHB 31 (18 February 2014)

Ezulwini Mining v Commission For Conciliation Mediation and Arbitration and Others (JR452/12) [2014] ZALCJHB 31 (18 February 2014)

The court found that the Commissioner misconceived the nature of the complaint by focusing on whether the hazard was rectified rather than whether it was reported to the CEO as required by the employer's instruction. The Commissioner failed to apply his mind to material facts, including the credibility of witnesses who were themselves dismissed for similar breaches and the absence of evidence that rectification negated the reporting obligation. This constituted a gross irregularity in the conduct of the arbitration proceedings under section 145(2)(a)(ii) of the LRA. The court held that a reasonable commissioner would have found the employee guilty of failing to report the hazard,...

Citation
[2014] ZALCJHB 31
Parties
Applicant: Ezulwini Mining; Respondent: Commission For Conciliation, Mediation and Arbitration; Respondent: Commissioner Faizel Mooi N.O; Respondent: National Union of Mine Workers obo Wabile, S.A.
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
18 February 2014
Case Number
JR452/12
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Arbitration award set aside and matter remitted to the CCMA for fresh determination before a different commissioner.
Judges
Chavoos
Legal Topics
Unfair Dismissal, Arbitration Review, Gross Irregularity, Substantive Fairness, Reporting Obligation
Labour Law Unfair Dismissal Arbitration Review Gross Irregularity Substantive Fairness Reporting Obligation

Case Brief

Summary, issues, holding and outcome

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Parties

Ezulwini Mining

Applicant

Commission For Conciliation, Mediation and Arbitration

Respondent

Commissioner Faizel Mooi N.O

Respondent

National Union of Mine Workers obo Wabile, S.A.

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the Commissioner misconceived the nature of the complaint in the arbitration proceedings.
  2. 2 Whether the failure to immediately report a non-negotiable safety hazard to the CEO constituted a dismissible offence.
  3. 3 Whether the Commissioner committed a gross irregularity in the conduct of the arbitration proceedings under section 145(2)(a)(ii) of the LRA.

Ratio Decidendi

The court found that the Commissioner misconceived the nature of the complaint by focusing on whether the hazard was rectified rather than whether it was reported to the CEO as required by the employer's instruction. The Commissioner failed to apply his mind to material facts, including the credibility of witnesses who were themselves dismissed for similar breaches and the absence of evidence that rectification negated the reporting obligation. This constituted a gross irregularity in the conduct of the arbitration proceedings under section 145(2)(a)(ii) of the LRA. The court held that a reasonable commissioner would have found the employee guilty of failing to report the hazard,...

Court Disposition

Arbitration award set aside and matter remitted to the CCMA for fresh determination before a different commissioner.

Orders

  • The arbitration award issued under case number GAJ27733-11 dated 27 January 2012 is reviewed and set aside.
  • The matter is remitted back to the CCMA for determination before a commissioner other than the second respondent.