Moqhoishi v Commission for Conciliation Mediation And Arbitration and Others (JR1552/04) [2007] ZALCJHB 6 (22 June 2007)

Moqhoishi v Commission for Conciliation Mediation And Arbitration and Others (JR1552/04) [2007] ZALCJHB 6 (22 June 2007)

The court found that the arbitrator's decision was not justifiable in relation to the evidence presented. The arbitrator relied excessively on the impression created by the witnesses rather than a proper evaluation of the substantive evidence, including the disciplinary hearing record and the circumstances of the...

Source-derived case information.

Citation
[2007] ZALCJHB 6
Parties
Applicant: Tseko Johannes Moqhoishi; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: Dell, Charle N.O.; Respondent: South African Post Office
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
22 June 2007
Case Number
JR1552/04
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The matter is referred back for a de novo hearing before a different commissioner. Costs are awarded against the third respondent.
Judges
Ngalwana AJ
Legal Topics
Review of Arbitration Award, Unfair Dismissal, Procedural Fairness, Gross Negligence
Labour Law Civil Procedure Review of Arbitration Award Unfair Dismissal Procedural Fairness Gross Negligence

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Summary, issues, holding and outcome

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Parties

Tseko Johannes Moqhoishi

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 arbitration award dismissing the applicant was justifiable based on the evidence before the arbitrator.
  2. 2 Whether the arbitrator failed to consider relevant evidence, including the disciplinary hearing record.
  3. 3 Whether the applicant's dismissal was substantively and procedurally fair.

Ratio Decidendi

The court found that the arbitrator's decision was not justifiable in relation to the evidence presented. The arbitrator relied excessively on the impression created by the witnesses rather than a proper evaluation of the substantive evidence, including the disciplinary hearing record and the circumstances of the alleged misconduct. The arbitrator failed to consider material facts, such as the delay in the disciplinary hearing and the absence of corroborating witnesses regarding the alleged fraud. The court held that the award was irrational and unjustifiable, warranting its review and setting aside.

Court Disposition

The arbitration award is reviewed and set aside. The matter is referred back for a de novo hearing before a different commissioner. Costs are 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.