NEHAWU obo James v General Public Service Sectoral Bargaining Council and Others (P423/2011) [2014] ZALCPE 25 (26 August 2014)

NEHAWU obo James v General Public Service Sectoral Bargaining Council and Others (P423/2011) [2014] ZALCPE 25 (26 August 2014)

The court found that the arbitrator exceeded his powers by determining the fairness of Mr James's dismissal, when his jurisdiction was limited to identifying the reason for termination—whether it was effected by operation of law under the Public Service Act or constituted a dismissal for unknown reasons. The...

Source-derived case information.

Citation
[2014] ZALCPE 25
Parties
Applicant: NEHAWU obo Luphumo James; Respondent: General Public Service Sectoral Bargaining Council; Respondent: John Cheere Robertson N.O; Respondent: Department of Safety and Liaison
Court
Labour Court Port Elizabeth
Jurisdiction
South Africa
Judgment Date
26 August 2014
Case Number
P423/2011
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Application for review granted; arbitration award set aside; matter remitted for fresh arbitration; costs awarded against third respondent.
Judges
Lallie
Legal Topics
Review of Arbitration Award, Dismissal for Absenteeism, Public Service Act, Jurisdiction of Arbitrator, Condonation of Late Filing
Labour Law Administrative Law Review of Arbitration Award Dismissal for Absenteeism Public Service Act Jurisdiction of Arbitrator Condonation of Late Filing

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Summary, issues, holding and outcome

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Parties

NEHAWU obo Luphumo James

Applicant

General Public Service Sectoral Bargaining Council

Respondent

John Cheere Robertson N.O

Respondent

Department of Safety and Liaison

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator exceeded his powers by determining the fairness of the dismissal rather than the validity of the termination letter.
  2. 2 Whether the dismissal of Mr James was effected by operation of law under the Public Service Act or constituted an unfair dismissal.
  3. 3 Whether the arbitrator committed gross irregularities rendering the award reviewable.

Ratio Decidendi

The court found that the arbitrator exceeded his powers by determining the fairness of Mr James's dismissal, when his jurisdiction was limited to identifying the reason for termination—whether it was effected by operation of law under the Public Service Act or constituted a dismissal for unknown reasons. The arbitrator improperly relied on Resolution 2 of 1999, which was not raised by the parties, and found Mr James guilty of misconduct without affording him an opportunity to defend himself. These actions breached the principles of natural justice and section 138 of the LRA. The award was therefore defective due to gross irregularities and was reviewable. The court granted condonation for...

Court Disposition

Application for review granted; arbitration award set aside; matter remitted for fresh arbitration; costs awarded against third respondent.

Orders

  • The application for condonation of the late filing of the review application is granted.
  • The arbitration award issued by the second respondent under case number GPBC 62/2010 is reviewed and set aside.