National Union of Mineworkers and Others v Commission for Conciliation Mediation and Arbitration and Others (JR888/05) [2007] ZALC 25; (2007) 28 ILJ 1614 (LC) (16 April 2007)

National Union of Mineworkers and Others v Commission for Conciliation Mediation and Arbitration and Others (JR888/05) [2007] ZALC 25; (2007) 28 ILJ 1614 (LC) (16 April 2007)

The court found that the commissioner committed gross irregularity by misdirecting himself on the burden of proof, failing to scrutinize the employer's deviation from its disciplinary code, and relying on speculative circumstantial evidence to infer the employees' knowledge of the rule. The commissioner failed to address the fairness of subjecting the employees to two disciplinary hearings and did not properly evaluate whether the employer's appointment of an external chairperson was procedurally fair. The inference drawn by the commissioner regarding the employees' knowledge of the rule was unsupported by objective facts and amounted to speculation. Consequently, the arbitration award...

Citation
[2007] ZALC 25
Parties
Applicant: National Union of Mineworkers; Applicant: Samson Ngobeni N.O; Applicant: Daniel Mashabane; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: Jonas Shipalana, N.O; Respondent: Foskor
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
16 April 2007
Case Number
JR888/05
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Arbitration award reviewed and set aside; matter remitted for rehearing before a different commissioner; costs to follow the course.
Judges
Molahlehi AJ
Legal Topics
Unfair Dismissal, Disciplinary Code, Procedural Fairness, Substantive Fairness, Burden of Proof, Circumstantial Evidence
Labour Law Civil Procedure Unfair Dismissal Disciplinary Code Procedural Fairness Substantive Fairness Burden of Proof Circumstantial Evidence

Case Brief

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Parties

National Union of Mineworkers

Applicant

Samson Ngobeni N.O

Applicant

Daniel Mashabane

Applicant

Commission for Conciliation Mediation and Arbitration

Respondent

Jonas Shipalana, N.O

Respondent

Foskor

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitration award issued by the commissioner was reviewable due to gross irregularity and misdirection.
  2. 2 Whether the dismissal of the employees was procedurally and substantively fair.
  3. 3 Whether the employer complied with its own disciplinary code and procedures.

Ratio Decidendi

The court found that the commissioner committed gross irregularity by misdirecting himself on the burden of proof, failing to scrutinize the employer's deviation from its disciplinary code, and relying on speculative circumstantial evidence to infer the employees' knowledge of the rule. The commissioner failed to address the fairness of subjecting the employees to two disciplinary hearings and did not properly evaluate whether the employer's appointment of an external chairperson was procedurally fair. The inference drawn by the commissioner regarding the employees' knowledge of the rule was unsupported by objective facts and amounted to speculation. Consequently, the arbitration award...

Court Disposition

Arbitration award reviewed and set aside; matter remitted for rehearing before a different commissioner; costs to follow the course.

Orders

  • The award issued by the Second Respondent is reviewed and set aside.
  • The matter is remitted back to the First Respondent to be heard by a Commissioner other than the Second Respondent.