Glencore Operations SA (Pty) Ltd v CCMA and Others (JR 1963/19) [2021] ZALCJHB 164; [2021] 10 BLLR 1013 (LC); (2021) 42 ILJ 2446 (LC) (28 June 2021)

Glencore Operations SA (Pty) Ltd v CCMA and Others (JR 1963/19) [2021] ZALCJHB 164; [2021] 10 BLLR 1013 (LC); (2021) 42 ILJ 2446 (LC) (28 June 2021)

The Labour Court held that once Commissioner Mashego dismissed the matter for non-appearance, he became functus officio and lacked jurisdiction to arbitrate unless the dismissal was set aside or the matter reinstated. There was no evidence that the dismissal ruling was rescinded or that proper reinstatement occurred. The subsequent arbitration and award were therefore issued without jurisdiction and constituted a nullity. Even if jurisdiction existed, the award was not one a reasonable decision maker could reach, as the commissioner misconstrued the nature of the misconduct and failed to address the real issue of absence without permission. The dismissal of Nkosi was substantively fair...

Citation
[2021] ZALCJHB 164
Parties
Applicant: Glencore Operations SA (Pty) Ltd; Respondent: CCMA; Respondent: Commissioner S Mashego N.O; Respondent: Commissioner X Nduna N.O; Respondent: NUMSA; Respondent: Elias Dumisani Nkosi
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
28 June 2021
Case Number
JR 1963/19
Procedural Posture
Review Application / Judgment
Outcome
The review application succeeds. The arbitration award is reviewed and set aside. It is replaced with an order that the dismissal of Nkosi is substantively fair. The Director of the CCMA is directed to investigate the conduct of Commissioner Nduna. No order as to costs.
Judges
G N Moshoana
Legal Topics
Unfair Dismissal, Jurisdiction of Ccma, Functus Officio, Review of Arbitration Award, Misconduct, Absence Without Permission
Labour Law Unfair Dismissal Jurisdiction of Ccma Functus Officio Review of Arbitration Award Misconduct Absence Without Permission

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 13 Party arguments 2
Sign in to unlock

Parties

Glencore Operations SA (Pty) Ltd

Applicant

CCMA

Respondent

Commissioner S Mashego N.O

Respondent

Commissioner X Nduna N.O

Respondent

NUMSA

Respondent

Elias Dumisani Nkosi

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether Commissioner Mashego had jurisdiction to arbitrate the dispute after dismissing the matter for non-appearance.
  2. 2 Whether the conduct of Commissioner Nduna amounted to a gross irregularity capable of vitiating the arbitration award.
  3. 3 Whether the arbitration award issued by Commissioner Mashego is one that a reasonable decision maker could reach.

Ratio Decidendi

The Labour Court held that once Commissioner Mashego dismissed the matter for non-appearance, he became functus officio and lacked jurisdiction to arbitrate unless the dismissal was set aside or the matter reinstated. There was no evidence that the dismissal ruling was rescinded or that proper reinstatement occurred. The subsequent arbitration and award were therefore issued without jurisdiction and constituted a nullity. Even if jurisdiction existed, the award was not one a reasonable decision maker could reach, as the commissioner misconstrued the nature of the misconduct and failed to address the real issue of absence without permission. The dismissal of Nkosi was substantively fair...

Court Disposition

The review application succeeds. The arbitration award is reviewed and set aside. It is replaced with an order that the dismissal of Nkosi is substantively fair. The Director of the CCMA is directed to investigate the conduct of Commissioner Nduna. No order as to costs.

Orders

  • The award issued by Commissioner Mashego dated 29 July 2019 under case number MP686-19 is reviewed and set aside.
  • It is replaced with an order that the dismissal of Nkosi is substantively fair.