NEHAWU obo Hoho v CCMA and Others (PA13/16, PR77/15) [2018] ZALAC 8; [2018] 8 BLLR 768 (LAC); (2018) 39 ILJ 1743 (LAC) (10 May 2018)

NEHAWU obo Hoho v CCMA and Others (PA13/16, PR77/15) [2018] ZALAC 8; [2018] 8 BLLR 768 (LAC); (2018) 39 ILJ 1743 (LAC) (10 May 2018)

The Labour Appeal Court held that the Labour Court's remittal order contemplated only commissioner Mama determining the sanction, based on the existing record. The substitution of commissioner Van Zydam, even with party consent, was procedurally improper and not legitimised by the circumstances. The proceedings before Van Zydam, which included fresh evidence and did not demonstrate engagement with the original record, were inconsistent with the remittal order. The proper course would have been to apply for a variation of the order, setting out reasons for non-compliance. As a result, both the Labour Court judgment and the award of Van Zydam were set aside, and the original order...

Citation
[2018] ZALAC 8
Parties
Appellant: NEHAWU obo Kerr Hoho; Respondent: CCMA; Respondent: Jean Van Zydam, N.O.; Respondent: Secretary of the Eastern Cape Legislature
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
10 May 2018
Case Number
PA13/16, PR77/15
Procedural Posture
Civil Appeal / Appeal From Labour Court Judgment Dismissing Review of CCMA Arbitration Award
Outcome
Appeal upheld; Labour Court judgment and CCMA award set aside; original remittal order reinstated.
Judges
Coppin, Sutherland, Savage
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Remittal Procedure, Variation of Court Order
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Remittal Procedure Variation of Court Order

Case Brief

Summary, issues, holding and outcome

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Parties

NEHAWU obo Kerr Hoho

Appellant

CCMA

Respondent

Jean Van Zydam, N.O.

Respondent

Secretary of the Eastern Cape Legislature

Respondent

Procedural Posture

Civil Appeal / Appeal From Labour Court Judgment Dismissing Review of CCMA Arbitration Award

Legal Issues

  1. 1 Whether the CCMA was competent to assign a commissioner other than the one specified in the Labour Court's remittal order.
  2. 2 Whether the proceedings before the substitute commissioner were consistent with the terms of the remittal order.
  3. 3 Whether further evidence could be led before the substitute commissioner.

Ratio Decidendi

The Labour Appeal Court held that the Labour Court's remittal order contemplated only commissioner Mama determining the sanction, based on the existing record. The substitution of commissioner Van Zydam, even with party consent, was procedurally improper and not legitimised by the circumstances. The proceedings before Van Zydam, which included fresh evidence and did not demonstrate engagement with the original record, were inconsistent with the remittal order. The proper course would have been to apply for a variation of the order, setting out reasons for non-compliance. As a result, both the Labour Court judgment and the award of Van Zydam were set aside, and the original order...

Court Disposition

Appeal upheld; Labour Court judgment and CCMA award set aside; original remittal order reinstated.

Orders

  • The appeal is upheld.
  • The order of the court a quo and the award are set aside.