Msibi and Others v CCMA and Others (JR1365/13) [2017] ZALCJHB 245 (22 June 2017)

Msibi and Others v CCMA and Others (JR1365/13) [2017] ZALCJHB 245 (22 June 2017)

The Labour Court found that the second respondent (arbitrator) failed to comply with the previous court directive to address the real dispute, which was whether the applicants were dismissed or had absconded, and whether the employer followed a fair process to establish this. The arbitrator ignored the merits of the dismissal dispute and did not properly investigate the facts. The court condoned the applicants' failure to file a proper record due to difficulties in obtaining it from the CCMA. The award was set aside and the matter remitted to another arbitrator with instructions to accept that the applicants were dismissed and to deal with the merits of the dismissal.

Citation
[2017] ZALCJHB 245
Parties
Applicant: Caiphus Msibi and 12 Others; Respondent: CCMA; Respondent: Elsabe Maree N.O.; Respondent: Le Sel Research (PYY) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
22 June 2017
Case Number
JR1365/13
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award by the second respondent is reviewed and set aside. The matter is remitted to another arbitrator to determine the merits of the dismissal, accepting that the applicants were dismissed. No order as to costs.
Judges
Whitcher
Legal Topics
Unfair Dismissal, Abscondment, Arbitration Review, Procedural Fairness
Labour Law Unfair Dismissal Abscondment Arbitration Review Procedural Fairness

Case Brief

Summary, issues, holding and outcome

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Parties

Caiphus Msibi and 12 Others

Applicant

CCMA

Respondent

Elsabe Maree N.O.

Respondent

Le Sel Research (PYY) Ltd

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the CCMA arbitrator complied with the Labour Court's directive to determine the real dispute of dismissal.
  2. 2 Whether the applicants were dismissed or absconded, and whether the employer followed a fair process.
  3. 3 Whether the failure to file a proper record should be condoned.

Ratio Decidendi

The Labour Court found that the second respondent (arbitrator) failed to comply with the previous court directive to address the real dispute, which was whether the applicants were dismissed or had absconded, and whether the employer followed a fair process to establish this. The arbitrator ignored the merits of the dismissal dispute and did not properly investigate the facts. The court condoned the applicants' failure to file a proper record due to difficulties in obtaining it from the CCMA. The award was set aside and the matter remitted to another arbitrator with instructions to accept that the applicants were dismissed and to deal with the merits of the dismissal.

Court Disposition

The arbitration award by the second respondent is reviewed and set aside. The matter is remitted to another arbitrator to determine the merits of the dismissal, accepting that the applicants were dismissed. No order as to costs.

Orders

  • The award by the second respondent dated 18 May 2013 under case number GATW1050-10 is reviewed and set aside.
  • The matter is remitted to another arbitrator who must accept that the applicants were dismissed and must accordingly deal with the merits of the dismissal.