National Union of Mineworkers and Another v Commission for Conciliation Mediation and Arbitration and Others (JR113/06) [2008] ZALC 208 (5 August 2008)

National Union of Mineworkers and Another v Commission for Conciliation Mediation and Arbitration and Others (JR113/06) [2008] ZALC 208 (5 August 2008)

The commissioner failed to address the disciplinary outcome of Shiya, who allegedly committed the same misconduct as the second applicant. This omission was a crucial aspect of the matter, as the evidence indicated that Shiya was involved in inciting violence but the award did not clarify what action, if any, was taken against him. The commissioner’s finding that the rule was consistently applied was not one that a reasonable decision maker could reach, rendering the award reviewable. The court held that the commissioner’s award on the issue of consistency must be set aside and the matter referred for a de novo hearing before another commissioner to determine whether the third respondent...

Citation
[2008] ZALC 208
Parties
Applicant: National Union of Mineworkers; Applicant: Sefako J; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: Manzana D N.O.; Respondent: Harmony Gold Mining Co Ltd
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
5 August 2008
Case Number
JR113/06
Procedural Posture
Review Application / Judgment
Outcome
Application granted; the commissioner’s finding on consistency is reviewed and set aside; dispute referred for de novo hearing on consistency before another commissioner; no order as to costs.
Judges
Francis
Legal Topics
Consistency in Dismissal, Review of Arbitration Award, Onus of Fair Dismissal, Parity Rule, Procedural Fairness
Labour Law Civil Procedure Consistency in Dismissal Review of Arbitration Award Onus of Fair Dismissal Parity Rule Procedural Fairness

Case Brief

Summary, issues, holding and outcome

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Parties

National Union of Mineworkers

Applicant

Sefako J

Applicant

Commission for Conciliation Mediation and Arbitration

Respondent

Manzana D N.O.

Respondent

Harmony Gold Mining Co Ltd

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the commissioner erred in her approach to the issue of consistency in the dismissal of the second applicant.
  2. 2 Whether the arbitration award is reviewable due to failure to address the disciplinary outcome of Shiya, who allegedly committed similar misconduct.
  3. 3 Whether the parity rule was correctly applied in distinguishing between the misconduct of the second applicant and other employees.

Ratio Decidendi

The commissioner failed to address the disciplinary outcome of Shiya, who allegedly committed the same misconduct as the second applicant. This omission was a crucial aspect of the matter, as the evidence indicated that Shiya was involved in inciting violence but the award did not clarify what action, if any, was taken against him. The commissioner’s finding that the rule was consistently applied was not one that a reasonable decision maker could reach, rendering the award reviewable. The court held that the commissioner’s award on the issue of consistency must be set aside and the matter referred for a de novo hearing before another commissioner to determine whether the third respondent...

Court Disposition

Application granted; the commissioner’s finding on consistency is reviewed and set aside; dispute referred for de novo hearing on consistency before another commissioner; no order as to costs.

Orders

  • The commissioner’s finding on the issue of consistency in the arbitration award dated 22 November 2005 made under case number FS7911/04 is reviewed and set aside.
  • The dispute is referred to the first respondent (CCMA) for determination by another commissioner, limited to whether the third respondent acted inconsistently in dismissing the second applicant.