Kimberley Ekapa Mining Joint Venture v Setlhodi and Others (C634/2019) [2021] ZALCCT 89 (19 November 2021)
- Citation
- [2021] ZALCCT 89
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Labour Court Cape Town
- Panel
- BN Conradie
- Case number
- C634/2019
More details
- Court
- Labour Court Cape Town
- Panel
- BN Conradie
- Case number
- C634/2019
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the commissioner made comments which could reasonably be interpreted as influencing the employee not to testify, thereby compromising the fairness of the arbitration proceedings. In the absence of any denial from the commissioner or the employee, the court accepted the applicant's version. This amounted to misconduct and an irregularity in the conduct of the proceedings. As a result, the arbitration award was reviewed and set aside. The court declined to substitute its own decision due to the lack of evidence from the employee and ordered that the matter be remitted to the CCMA for rehearing before a different commissioner.
Court disposition
Arbitration award reviewed and set aside; matter remitted to CCMA for rehearing before a different commissioner.
Orders
- The arbitration award issued by the Third Respondent under case number NC2274-19 on 19 September 2019 is reviewed and set aside.
- The matter is remitted to the Second Respondent to be heard by a commissioner other than the Third Respondent.
02
Material facts
Parties
Kimberley Ekapa Mining Joint Venture
Applicant Counsel: Peyper Austen IncorporatedEmily Setlhodi
RespondentCommission for Conciliation Mediation & Arbitration
RespondentCommissioner Leon Joubert N.O.
RespondentAmounts and remedies
- Awarded Compensation (one Month's Salary): ZAR 9,014.2
03
Procedural history
Posture
Review Application / Judgment on Review of Arbitration Award
04
Questions and positions
Legal issues
- 01
Whether the commissioner committed misconduct or a gross irregularity in the conduct of the arbitration proceedings.
- 02
Whether the arbitration award should be reviewed and set aside due to alleged bias and unfairness.
- 03
Whether the matter should be remitted for rehearing before a different commissioner.
Party arguments
- Applicant
- The applicant contends that the commissioner improperly influenced the employee not to testify after the employer closed its case, resulting in procedural unfairness. The applicant alleges that the commissioner made a prejudicial comment, which led the employee to close her case without giving evidence. This conduct is said to constitute misconduct or a gross irregularity, warranting the setting aside of the award.
- Respondent
- The application was unopposed. No argument was submitted by any respondent.
05
Court’s reasoning
Legal principles
- 01
Section 145 of the Labour Relations Act
If an arbitrator commits misconduct or a gross irregularity in the conduct of proceedings, the award may be reviewed and set aside.
- 02
Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC)
Where the fairness of proceedings is compromised by the conduct of the commissioner, the award cannot stand and the matter should be remitted for rehearing.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the commissioner made comments which could reasonably be interpreted as influencing the employee not to testify, thereby compromising the fairness of the arbitration proceedings. In the absence of any denial from the commissioner or the employee, the court accepted the applicant's version. This amounted to misconduct and an irregularity in the conduct of the proceedings. As a result, the arbitration award was reviewed and set aside. The court declined to substitute its own decision due to the lack of evidence from the employee and ordered that the matter be remitted to the CCMA for rehearing before a different commissioner.
Obiter and limits
- The absence of opposition or denial from the commissioner or employee left the court with no alternative but to accept the applicant's account.
- Substitution of the award was not appropriate in circumstances where no evidence was presented by the employee.
Court disposition
Arbitration award reviewed and set aside; matter remitted to CCMA for rehearing before a different commissioner.
- The arbitration award issued by the Third Respondent under case number NC2274-19 on 19 September 2019 is reviewed and set aside.
- The matter is remitted to the Second Respondent to be heard by a commissioner other than the Third Respondent.
Source and reliance status
Labour Court Cape Town
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Labour Court Cape Town
Judgment
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
Not Reportable
Case Number: C634/2019
In the matter between:
KIMBERLEY
EKAPA MINING JOINT VENTURE Applicant
and
EMILY SETLHODI First Respondent
COMMISSION
FOR CONCILIATION
MEDIATION & ARBITRATION Second Respondent
COMMISSIONER LEON JOUBERT N.O. Third Respondent
Date heard: 12 October 2021
Date of Judgment: This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 10h00 on 19 November 2021.
Summary: Review – Commissioner accused of influencing employee not to testify after employer closed its case. Award reviewed and set aside and referred back to CCMA.
JUDGMENT
CONRADIE AJ
Introduction
1. This is an application in terms of section 145 of the Labour Relations Act in which the Applicant (the company) seeks to review the award of the Third Respondent (the commissioner) handed down on 19 September 2019.
2. The application is unopposed.
Background
3. The company operates a diamond mine.
4. The First Respondent (the employee) was employed by the company as a security officer for nearly ten years.
5. The employee’s job was to guard against the theft of diamonds and other property at the mine.
6. In terms of her employment contract the employee was subjected to an annual security vetting process. This included polygraph testing.
7. After the employee failed two polygraph tests, she was charged with a breach of her contract of employment in that she failed to maintain and retain an approved security vetting status. She was dismissed.
8. The employee referred a dismissal dispute to the Second Respondent (the CCMA) who in turn appointed the commissioner to arbitrate the matter.
9. At the arbitration, the security manager and the polygrapher testified on behalf of the company.
10. After the company closed its case, the employee did not give evidence nor did she call any other witnesses to testify on her behalf.
11. The commissioner found that the dismissal of the employee was substantively unfair and awarded her one month’s salary in the
amount of R9 014.20.
Grounds of Review
12. Dissatisfied with the award, the company seeks to review it on several grounds. The only ground which is relevant for my conclusion in this matter is the complaint that the commissioner was biased towards the company and that it was prejudiced by his conduct.
13. In support of this the company states the following in its founding affidavit:
“It must be placed on record, which is not stated on the Arbitration Award, that after the employee closed its case, the Commissioner
stated to the 1st Respondent: “You are surely not going to testify now, nothing is in dispute”. ”
14. According to the company, prior to this comment by the commissioner, the employee was going to testify. However, after the comment she decided not to testify and closed her case.
15. The company submits that the failure by the commissioner to conduct the arbitration proceedings in a fair manner inevitably meant that the he committed misconduct in relation to his duties as an arbitrator or alternatively committed a gross irregularity in the conduct of the arbitration proceedings.
Evaluation
16. If it is indeed correct that the commissioner made the comment referred to above then this would amount to misconduct on the part of the commissioner and an irregularity in the conduct of the proceedings.
17. A perusal of the transcribed record indicates the following exchange:
“COMMISSIONER: Okay. Then it’s the case of the employee.
Are you just going to argue?
MR RATSHILUMELA: Ja.
COMMISSIONER: Are you going - just going to provide an argument? I would like to hear – you will have to please to address me. Shall we continue – is it necessary for her to testify? Because you already admit that she failed it and because of the failure, that she failed, she was found guilty of misconduct and dismissed.”
18. While what is recorded on the record does not tie up exactly with what is stated in the founding affidavit in support of the review, in the absence of an affidavit from the commissioner or the employee denying that the commissioner made the comment in question, I am left with no choice, but to accept that the words attributed to the commissioner were uttered.
19. In the circumstances, I am of the view that the award should be reviewed and set aside. However, in this matter, I do not believe that I am in position to substitute my own decision for that of the commissioner as no evidence was presented by the employee. The matter will have to be referred back to the CCMA.
20. I make the following Order:
1. The arbitration award issued by the Third Respondent under case number NC2274-19 on 19 September 2019 is reviewed and set aside.
2. The matter is remitted to the Second Respondent to be heard by a commissioner other than the Third Respondent.
BN. Conradie
Acting Judge of the Labour Court
Appearances:
For the Applicant: Peyper Austen Incorporated.
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