Herholdt v Nedbank Ltd (DA 20/2010) [2012] ZALAC 13; [2012] 9 BLLR 857 (LAC); (2012) 33 ILJ 1789 (LAC) (4 May 2012)

Herholdt v Nedbank Ltd (DA 20/2010) [2012] ZALAC 13; [2012] 9 BLLR 857 (LAC); (2012) 33 ILJ 1789 (LAC) (4 May 2012)

The Labour Appeal Court held that the Labour Court was correct in finding that the CCMA commissioner failed to apply her mind to a number of material issues, thereby committing gross irregularities in the conduct of the arbitration. The commissioner ignored or discounted relevant evidence regarding the appellant’s deliberate non-disclosure of his conflict of interest, misconstrued the conflict of interest policy, and failed to appreciate the reputational and regulatory risks to Nedbank. These failures deprived Nedbank of a fair trial and rendered the arbitration award unreasonable. The Court emphasised that both process and substantive reasonableness are required for a valid award, and...

Citation
[2012] ZALAC 13
Parties
Appellant: Andre Herholdt; Respondent: Nedbank Limited
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
4 May 2012
Case Number
DA 20/2010
Procedural Posture
Labour Appeal / Appeal From Labour Court Judgment Reviewing CCMA Arbitration Award
Outcome
Appeal dismissed. The appellant is ordered to pay the respondent’s costs, including the costs occasioned by the employment of two counsel.
Judges
Murphy, Mlambo, Mocumie
Legal Topics
Unfair Dismissal, Conflict of Interest, Review of Arbitration Award, Gross Irregularity, Reasonableness Standard
Labour Law Civil Procedure Unfair Dismissal Conflict of Interest Review of Arbitration Award Gross Irregularity Reasonableness Standard

Case Brief

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Parties

Andre Herholdt

Appellant

Nedbank Limited

Respondent

Procedural Posture

Labour Appeal / Appeal From Labour Court Judgment Reviewing CCMA Arbitration Award

Legal Issues

  1. 1 Whether the Labour Court correctly found that the CCMA commissioner failed to apply her mind to material issues, thereby committing gross irregularities in the arbitration process.
  2. 2 Whether the arbitration award was one that a reasonable commissioner could have made under the circumstances.
  3. 3 Whether the appellant's dismissal for dishonesty was substantively and procedurally fair.

Ratio Decidendi

The Labour Appeal Court held that the Labour Court was correct in finding that the CCMA commissioner failed to apply her mind to a number of material issues, thereby committing gross irregularities in the conduct of the arbitration. The commissioner ignored or discounted relevant evidence regarding the appellant’s deliberate non-disclosure of his conflict of interest, misconstrued the conflict of interest policy, and failed to appreciate the reputational and regulatory risks to Nedbank. These failures deprived Nedbank of a fair trial and rendered the arbitration award unreasonable. The Court emphasised that both process and substantive reasonableness are required for a valid award, and...

Court Disposition

Appeal dismissed. The appellant is ordered to pay the respondent’s costs, including the costs occasioned by the employment of two counsel.

Orders

  • The appeal is dismissed.
  • The appellant is ordered to pay the respondent’s costs, including the costs occasioned by the employment of two counsel.