Moodley v Commission for Conciliation Mediation and Arbitration and Others (JR 1403/10) [2011] ZALCJHB 131 (20 May 2011)

Moodley v Commission for Conciliation Mediation and Arbitration and Others (JR 1403/10) [2011] ZALCJHB 131 (20 May 2011)

The commissioner failed to apply his mind to the material issue of consistency in the application of discipline. The evidence showed that the applicant had previously been absent without disciplinary action, yet was dismissed for a subsequent similar absence. The commissioner decided the issue on credibility rather than addressing the internal inconsistency in the third respondent's conduct. This failure constitutes a gross irregularity in the proceedings and renders the award reviewable. The court declined to substitute its own finding for that of the commissioner, instead remitting the matter for fresh arbitration before a different commissioner.

Citation
[2011] ZALCJHB 131
Parties
Applicant: Patrick Moodly; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: TM Graham; Respondent: Pioneer Foods In Store
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
20 May 2011
Case Number
JR 1403/10
Procedural Posture
Review Application / Judgment
Outcome
The arbitration award is reviewed and set aside. The matter is remitted to the CCMA for a fresh hearing before a different commissioner. No order as to costs.
Judges
Van Niekerk
Legal Topics
Unfair Dismissal, Consistency in Discipline, Review of Arbitration Award, Gross Irregularity, Credibility Assessment
Labour Law Civil Procedure Unfair Dismissal Consistency in Discipline Review of Arbitration Award Gross Irregularity Credibility Assessment

Case Brief

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Parties

Patrick Moodly

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

TM Graham

Respondent

Pioneer Foods In Store

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the commissioner failed to apply his mind to the issue of consistency in discipline.
  2. 2 Whether the arbitration award is a decision to which no reasonable decision-maker could come.
  3. 3 Whether the applicant's dismissal was substantively and procedurally fair.

Ratio Decidendi

The commissioner failed to apply his mind to the material issue of consistency in the application of discipline. The evidence showed that the applicant had previously been absent without disciplinary action, yet was dismissed for a subsequent similar absence. The commissioner decided the issue on credibility rather than addressing the internal inconsistency in the third respondent's conduct. This failure constitutes a gross irregularity in the proceedings and renders the award reviewable. The court declined to substitute its own finding for that of the commissioner, instead remitting the matter for fresh arbitration before a different commissioner.

Court Disposition

The arbitration award is reviewed and set aside. The matter is remitted to the CCMA for a fresh hearing before a different commissioner. No order as to costs.

Orders

  • The arbitration award made by the second respondent on 21 May 2010 is reviewed and set aside.
  • The matter is remitted to the CCMA for a fresh arbitration hearing before a commissioner other than the second respondent.