Louw v Commission for Conciliation, Mediation and Arbitration and Others (C367/17) [2019] ZALCCT 14; [2019] 9 BLLR 921 (LC) (7 May 2019)

Louw v Commission for Conciliation, Mediation and Arbitration and Others (C367/17) [2019] ZALCCT 14; [2019] 9 BLLR 921 (LC) (7 May 2019)

The Commissioner failed to properly address the issue of hearsay evidence and did not reflect an understanding of the onus of proof in her evaluation of the evidence. The absence of direct viva voce evidence from the employer's managers and the reliance on hearsay evidence constituted a gross irregularity. The Commissioner did not apply the law of evidence appropriately, and her award was therefore susceptible to review. The Court refused condonation for the late filing of the third respondent's answering papers and set aside the arbitration award, remitting the dispute for rehearing before a different Commissioner.

Citation
[2019] ZALCCT 14
Parties
Applicant: Jerome Louw; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner S. Wright; Respondent: Fidelity ADT Security (Pty) Ltd
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
7 May 2019
Case Number
C367/17
Procedural Posture
Review Application / Judgment on Opposed Review and Condonation Applications
Outcome
The review application succeeds; the arbitration award is set aside and the dispute is remitted for rehearing before a different Commissioner. Condonation for the late filing of answering papers is refused.
Judges
Rabkin-Naicker
Legal Topics
Review of Arbitration Award, Hearsay Evidence, Condonation, Onus of Proof, Gross Irregularity
Labour Law Civil Procedure Review of Arbitration Award Hearsay Evidence Condonation Onus of Proof Gross Irregularity

Case Brief

Summary, issues, holding and outcome

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Parties

Jerome Louw

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner S. Wright

Respondent

Fidelity ADT Security (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment on Opposed Review and Condonation Applications

Legal Issues

  1. 1 Whether the Commissioner committed a gross irregularity by failing to properly address hearsay evidence at the arbitration.
  2. 2 Whether the award was reasonable given the failure to test and weigh evidence appropriately.
  3. 3 Whether condonation should be granted for the late filing of answering papers.

Ratio Decidendi

The Commissioner failed to properly address the issue of hearsay evidence and did not reflect an understanding of the onus of proof in her evaluation of the evidence. The absence of direct viva voce evidence from the employer's managers and the reliance on hearsay evidence constituted a gross irregularity. The Commissioner did not apply the law of evidence appropriately, and her award was therefore susceptible to review. The Court refused condonation for the late filing of the third respondent's answering papers and set aside the arbitration award, remitting the dispute for rehearing before a different Commissioner.

Court Disposition

The review application succeeds; the arbitration award is set aside and the dispute is remitted for rehearing before a different Commissioner. Condonation for the late filing of answering papers is refused.

Orders

  • Condonation for the late filing of the answering papers is refused.
  • The award under case number WECT: 4909-17 is reviewed and set aside.