Gebhardt v Education Labour Relation Council and Others (C 820/08) [2012] ZALCCT 37; [2013] 1 BLLR 28 (LC); (2013) 34 ILJ 1183 (LC) (7 September 2012)

Gebhardt v Education Labour Relation Council and Others (C 820/08) [2012] ZALCCT 37; [2013] 1 BLLR 28 (LC); (2013) 34 ILJ 1183 (LC) (7 September 2012)

The court found that the arbitrator failed to apply his mind to material evidence, specifically the notification of the applicant's disability to the employer and the employer's subsequent failure to investigate or verify her status as a member of a designated group. The arbitrator's assumption that the applicant bore the burden of proving her disability was a misdirection in law, as the Employment Equity Act places the duty on the employer to implement affirmative action and verify designated group status. The arbitrator's omission was both irrational and unreasonable, leading to a conclusion that no reasonable arbitrator could have reached. Consequently, the arbitration award was...

Citation
[2012] ZALCCT 37
Parties
Applicant: C J Gebhardt; Respondent: Education Labour Relations Council; Respondent: Adv Luvuyo Bono; Respondent: The Western Cape Education Department
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
7 September 2012
Case Number
C 820/08
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Arbitration award reviewed and set aside; dispute remitted for fresh arbitration; costs awarded to applicant.
Judges
Steenkamp
Legal Topics
Unfair Labour Practice, Promotion, Employment Equity, Designated Groups, Burden of Proof, Affirmative Action
Labour Law Administrative Law Unfair Labour Practice Promotion Employment Equity Designated Groups Burden of Proof Affirmative Action

Case Brief

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Parties

C J Gebhardt

Applicant

Education Labour Relations Council

Respondent

Adv Luvuyo Bono

Respondent

The Western Cape Education Department

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator failed to apply his mind to evidence regarding the applicant's disability and its notification to the employer.
  2. 2 Whether the arbitrator erred in law by placing the burden of proof of disability on the applicant rather than the employer under the Employment Equity Act.
  3. 3 Whether the employer's failure to consider the applicant's disability constituted an unfair labour practice in the context of promotion.

Ratio Decidendi

The court found that the arbitrator failed to apply his mind to material evidence, specifically the notification of the applicant's disability to the employer and the employer's subsequent failure to investigate or verify her status as a member of a designated group. The arbitrator's assumption that the applicant bore the burden of proving her disability was a misdirection in law, as the Employment Equity Act places the duty on the employer to implement affirmative action and verify designated group status. The arbitrator's omission was both irrational and unreasonable, leading to a conclusion that no reasonable arbitrator could have reached. Consequently, the arbitration award was...

Court Disposition

Arbitration award reviewed and set aside; dispute remitted for fresh arbitration; costs awarded to applicant.

Orders

  • The award of the second respondent dated 9 September 2008 is reviewed and set aside.
  • The unfair labour practice dispute is referred back to the first respondent to be considered afresh by an arbitrator other than the second respondent.