Moqhoishi v Commission for Conciliation, Mediation and Arbitration and Others (JR1552/04) [2007] ZALC 126 (22 June 2007)

Moqhoishi v Commission for Conciliation, Mediation and Arbitration and Others (JR1552/04) [2007] ZALC 126 (22 June 2007)

The court found that the arbitrator's decision was not justifiable in relation to the evidence presented. The arbitrator placed undue emphasis on the demeanour of the applicant and witnesses, disregarded relevant documentary evidence such as the disciplinary hearing record, and failed to consider material facts regarding the charges. The delay in holding the disciplinary hearing and the lack of corroborating witnesses for the fraud charge further undermined the fairness of the proceedings. Consequently, the award was reviewed and set aside, and the matter was referred for a de novo hearing before a different commissioner.

Citation
[2007] ZALC 126
Parties
Applicant: Moqhoishi, Tseko Johannes; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Dell, Charle N.O.; Respondent: South African Post Office
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
22 June 2007
Case Number
JR1552/04
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Application for review granted; arbitration award set aside; matter referred for de novo determination before a different commissioner; costs awarded against the third respondent.
Judges
Ngalwana AJ
Legal Topics
Review of Arbitration Award, Substantive Fairness of Dismissal, Gross Irregularity, Misconduct by Arbitrator
Labour Law Civil Procedure Review of Arbitration Award Substantive Fairness of Dismissal Gross Irregularity Misconduct by Arbitrator

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 2 Authorities cited 6 Party arguments 2
Sign in to unlock

Parties

Moqhoishi, Tseko Johannes

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Dell, Charle N.O.

Respondent

South African Post Office

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator's award was justifiable in relation to the evidence presented.
  2. 2 Whether the arbitrator committed a gross irregularity or misconduct in the conduct of proceedings.
  3. 3 Whether the applicant's dismissal was substantively fair.

Ratio Decidendi

The court found that the arbitrator's decision was not justifiable in relation to the evidence presented. The arbitrator placed undue emphasis on the demeanour of the applicant and witnesses, disregarded relevant documentary evidence such as the disciplinary hearing record, and failed to consider material facts regarding the charges. The delay in holding the disciplinary hearing and the lack of corroborating witnesses for the fraud charge further undermined the fairness of the proceedings. Consequently, the award was reviewed and set aside, and the matter was referred for a de novo hearing before a different commissioner.

Court Disposition

Application for review granted; arbitration award set aside; matter referred for de novo determination before a different commissioner; costs awarded against the third respondent.

Orders

  • The award under case number FS57756/2003 is reviewed and set aside.
  • The matter is referred back to the first respondent for a de novo determination before a different commissioner.