Friends Bakery CC v Commission for Conciliation Mediation And Arbitration and Others (JR1637/10) [2014] ZALCJHB 369 (30 September 2014)

Friends Bakery CC v Commission for Conciliation Mediation And Arbitration and Others (JR1637/10) [2014] ZALCJHB 369 (30 September 2014)

The court found that the Commissioner’s conclusion of procedural unfairness was reasonable, as the Third Respondent was given less than two hours’ notice of the disciplinary hearing, was a lay person unfamiliar with his rights, and was not afforded representation or an interpreter. These defects deprived him of a...

Source-derived case information.

Citation
[2014] ZALCJHB 369
Parties
Applicant: Friends Bakery CC; Respondent: Commission for Conciliation, Mediation & Arbitration; Respondent: Nemushungwa Thomas NO; Respondent: Sibanda King
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
30 September 2014
Case Number
JR1637/10
Procedural Posture
Review Application / Judgment on Review and Rule 11 Dismissal Application
Outcome
Both the Rule 11 application and the review application are dismissed. No order as to costs.
Judges
Tlhotlhalemaje
Legal Topics
Procedural Fairness, Compensation for Unfair Dismissal, Disciplinary Hearing Notice, Representation Rights, Review of Arbitration Award
Labour Law Civil Procedure Procedural Fairness Compensation for Unfair Dismissal Disciplinary Hearing Notice Representation Rights Review of Arbitration Award

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Summary, issues, holding and outcome

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Parties

Friends Bakery CC

Applicant

Commission for Conciliation, Mediation & Arbitration

Respondent

Nemushungwa Thomas NO

Respondent

Sibanda King

Respondent

Procedural Posture

Review Application / Judgment on Review and Rule 11 Dismissal Application

Legal Issues

  1. 1 Whether the Commissioner’s finding of procedural unfairness in the dismissal was reasonable.
  2. 2 Whether the amount of compensation awarded for procedural unfairness was just and equitable.
  3. 3 Whether the delay in prosecuting the review application justified dismissal under Rule 11.

Ratio Decidendi

The court found that the Commissioner’s conclusion of procedural unfairness was reasonable, as the Third Respondent was given less than two hours’ notice of the disciplinary hearing, was a lay person unfamiliar with his rights, and was not afforded representation or an interpreter. These defects deprived him of a fair hearing. The applicant’s contention that the issue was not raised during proceedings was rejected, as the record indicated the Third Respondent did raise concerns about representation and language barriers. However, the Commissioner erred by considering factors relevant to substantive fairness, such as length of service and harshness of sanction, when determining...

Court Disposition

Both the Rule 11 application and the review application are dismissed. No order as to costs.

Orders

  • The Third Respondent’s application in terms of Rule 11 is dismissed.
  • The application to review and set aside the award issued by the Second Respondent under case number GAJB39542-09 is dismissed.