Leboho v Commission for CCMA and Others (JR689/2004) [2005] ZALC 65; (2005) 26 ILJ 883 (LC); [2005] 8 BLLR 802 (LC) (14 April 2005)

Leboho v Commission for CCMA and Others (JR689/2004) [2005] ZALC 65; (2005) 26 ILJ 883 (LC); [2005] 8 BLLR 802 (LC) (14 April 2005)

The court found that the arbitrator committed a gross irregularity by reopening the hearing and calling and recalling witnesses without the consent or consultation of the parties. This conduct assisted the employer in discharging its onus and created a perception of bias against the applicant. The arbitrator's actions went beyond the permissible discretion afforded under the Labour Relations Act and civil procedure principles. As a result, the award was reviewable and had to be set aside. The court did not find it necessary to address the hearsay evidence issue, given the dispositive irregularity in procedure.

Citation
[2005] ZALC 65
Parties
Applicant: Patrick Leboho; Respondent: CCMA; Respondent: Nad Murugan; Respondent: South African Revenue Services
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
14 April 2005
Case Number
JR689/2004
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is set aside and the matter is remitted to the CCMA for arbitration afresh before another Commissioner.
Judges
H.M Musi
Legal Topics
Unfair Dismissal, Arbitration Review, Gross Irregularity, Procedural Fairness
Labour Law Civil Procedure Unfair Dismissal Arbitration Review Gross Irregularity Procedural Fairness

Case Brief

Summary, issues, holding and outcome

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Parties

Patrick Leboho

Applicant

CCMA

Respondent

Nad Murugan

Respondent

South African Revenue Services

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator committed a gross irregularity by reopening the hearing and calling witnesses without the parties' consent.
  2. 2 Whether the arbitrator's reliance on hearsay evidence rendered the award reviewable.
  3. 3 Whether the applicant's dismissal was procedurally and substantively fair.

Ratio Decidendi

The court found that the arbitrator committed a gross irregularity by reopening the hearing and calling and recalling witnesses without the consent or consultation of the parties. This conduct assisted the employer in discharging its onus and created a perception of bias against the applicant. The arbitrator's actions went beyond the permissible discretion afforded under the Labour Relations Act and civil procedure principles. As a result, the award was reviewable and had to be set aside. The court did not find it necessary to address the hearsay evidence issue, given the dispositive irregularity in procedure.

Court Disposition

The arbitration award is set aside and the matter is remitted to the CCMA for arbitration afresh before another Commissioner.

Orders

  • The arbitration award made by the second respondent on 27 February 2004 under number GA901/03 is set aside.
  • The matter is remitted to the CCMA for arbitration afresh before another Commissioner.