National Union of Mineworkers and Another v Commission for Conciliation Mediation And Arbitration and Others (JR113/06) [2008] ZALCJHB 60 (5 August 2008)

National Union of Mineworkers and Another v Commission for Conciliation Mediation And Arbitration and Others (JR113/06) [2008] ZALCJHB 60 (5 August 2008)

The commissioner failed to address the disciplinary outcome of Shiya, who was alleged to have committed the same misconduct as the second applicant. The third respondent, as employer, bore the onus to prove that dismissal was consistently applied. The absence of evidence regarding Shiya's discipline rendered the award unreasonable and reviewable. The commissioner’s finding on consistency was not one a reasonable decision maker could reach, and the award was set aside on this aspect only. The matter was referred back to the CCMA for a de novo hearing on consistency.

Citation
[2008] ZALCJHB 60
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 Johannesburg
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; the dispute is referred to the CCMA for rehearing on consistency only; no order as to costs.
Judges
Francis J
Legal Topics
Consistency in Dismissal, Arbitration Review, Parity Rule, Substantive Fairness, Procedural Fairness
Labour Law Civil Procedure Consistency in Dismissal Arbitration Review Parity Rule Substantive Fairness 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 application of dismissal as a sanction.
  2. 2 Whether the failure to consider the disciplinary outcome of Shiya constituted a reviewable irregularity.
  3. 3 Whether the arbitration award was one that a reasonable decision maker could reach.

Ratio Decidendi

The commissioner failed to address the disciplinary outcome of Shiya, who was alleged to have committed the same misconduct as the second applicant. The third respondent, as employer, bore the onus to prove that dismissal was consistently applied. The absence of evidence regarding Shiya's discipline rendered the award unreasonable and reviewable. The commissioner’s finding on consistency was not one a reasonable decision maker could reach, and the award was set aside on this aspect only. The matter was referred back to the CCMA for a de novo hearing on consistency.

Court Disposition

Application granted; the commissioner’s finding on consistency is reviewed and set aside; the dispute is referred to the CCMA for rehearing on consistency only; no order as to costs.

Orders

  • The commissioner’s finding on consistency in the arbitration award dated 22 November 2005 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.