Federal Gaming (Cape) (Pty) Ltd v Brown NO and Others (C309/2007) [2008] ZALC 238 (15 July 2008)

Federal Gaming (Cape) (Pty) Ltd v Brown NO and Others (C309/2007) [2008] ZALC 238 (15 July 2008)

The court found that the arbitrator's conduct, though inquisitorial and dominant, was aimed at clarifying the confused nature of the applicant's case and did not render the proceedings unfair or constitute a gross irregularity. The applicant failed to discharge the onus of proving that the employee abused sick leave or was guilty of misconduct. The evidence did not support the allegation that the employee was shamming illness, and the arbitrator's decision was one that a reasonable decision-maker could reach. Accordingly, the review application failed.

Citation
[2008] ZALC 238
Parties
Applicant: Federal Gaming (Cape) (Pty) Ltd; Respondent: Advocate John M Brown N.O.; Respondent: CCMA; Respondent: Duswo obo Lira Lenkoe
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
15 July 2008
Case Number
C309/2007
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Application dismissed; arbitration award stands.
Judges
Pillemer
Legal Topics
Unfair Dismissal, Arbitration Review, Substantive Fairness, Onus of Proof, Commissioner Conduct
Labour Law Civil Procedure Unfair Dismissal Arbitration Review Substantive Fairness Onus of Proof Commissioner Conduct

Case Brief

Summary, issues, holding and outcome

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Parties

Federal Gaming (Cape) (Pty) Ltd

Applicant

Advocate John M Brown N.O.

Respondent

CCMA

Respondent

Duswo obo Lira Lenkoe

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitration award in favour of the employee should be reviewed and set aside.
  2. 2 Whether the arbitrator's conduct rendered the proceedings unfair or constituted a gross irregularity.
  3. 3 Whether the dismissal of the employee was substantively fair.

Ratio Decidendi

The court found that the arbitrator's conduct, though inquisitorial and dominant, was aimed at clarifying the confused nature of the applicant's case and did not render the proceedings unfair or constitute a gross irregularity. The applicant failed to discharge the onus of proving that the employee abused sick leave or was guilty of misconduct. The evidence did not support the allegation that the employee was shamming illness, and the arbitrator's decision was one that a reasonable decision-maker could reach. Accordingly, the review application failed.

Court Disposition

Application dismissed; arbitration award stands.

Orders

  • The application for review is dismissed.
  • The arbitration award in favour of the employee remains in force.