Karen Beef (Pty) Ltd v Bovane N.O and Others (JR1605/05) [2008] ZALC 50; [2008] 8 BLLR 766 (LC) ; (2008) 29 ILJ 2959 (LC) (1 April 2008)

Karen Beef (Pty) Ltd v Bovane N.O and Others (JR1605/05) [2008] ZALC 50; [2008] 8 BLLR 766 (LC) ; (2008) 29 ILJ 2959 (LC) (1 April 2008)

The Labour Court found that the commissioner erred in concluding that the chairperson of the disciplinary hearing was biased. The evidence showed that the chairperson's refusal to speak to Mathe before the hearing was to avoid any perception of bias, not evidence of actual bias. There was no objective evidence supporting a reasonable apprehension of bias, and no objection or application for recusal was raised during the disciplinary hearing. The commissioner also improperly relied on evidence from the disciplinary hearing transcript regarding a second britaliser test, which was not properly before the arbitration. The absence of a printout for the alleged second test was not adequately...

Citation
[2008] ZALC 50
Parties
Applicant: Karen Beef (Pty) Ltd; Respondent: Boniswa Bovane N.O; Respondent: CCMA; Respondent: South African Commercial Catering Allied Workers Union OBO Mathe
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
1 April 2008
Case Number
JR1605/05
Procedural Posture
Review Application / Judgment
Outcome
The commissioner's award is reviewed and set aside. The dismissal of Mr Mathe is both substantively and procedurally fair.
Judges
Molahlehi
Legal Topics
Unfair Dismissal, Procedural Fairness, Substantive Fairness, Bias in Disciplinary Hearing, Rules of Evidence
Labour Law Unfair Dismissal Procedural Fairness Substantive Fairness Bias in Disciplinary Hearing Rules of Evidence

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 3 Authorities cited 6 Party arguments 2
Sign in to unlock

Parties

Karen Beef (Pty) Ltd

Applicant

Boniswa Bovane N.O

Respondent

CCMA

Respondent

South African Commercial Catering Allied Workers Union OBO Mathe

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the commissioner correctly found the dismissal of Mr Mathe to be both procedurally and substantively unfair.
  2. 2 Whether the chairperson of the disciplinary hearing was biased, rendering the procedure unfair.
  3. 3 Whether the evidence regarding the second britaliser test was properly considered and accepted.

Ratio Decidendi

The Labour Court found that the commissioner erred in concluding that the chairperson of the disciplinary hearing was biased. The evidence showed that the chairperson's refusal to speak to Mathe before the hearing was to avoid any perception of bias, not evidence of actual bias. There was no objective evidence supporting a reasonable apprehension of bias, and no objection or application for recusal was raised during the disciplinary hearing. The commissioner also improperly relied on evidence from the disciplinary hearing transcript regarding a second britaliser test, which was not properly before the arbitration. The absence of a printout for the alleged second test was not adequately...

Court Disposition

The commissioner's award is reviewed and set aside. The dismissal of Mr Mathe is both substantively and procedurally fair.

Orders

  • The first respondent’s award issued under case number MT 5909-04 and dated 29 April 2005 is reviewed and set aside.
  • The award of the commissioner is substituted with the finding that the dismissal of Mr Mathe is both substantively and procedurally fair.