Nkuna and Others v Commission for Conciliation Mediation and Arbitration and Others (JR435/2011) [2012] ZALCJHB 176 (8 August 2012)

Nkuna and Others v Commission for Conciliation Mediation and Arbitration and Others (JR435/2011) [2012] ZALCJHB 176 (8 August 2012)

The Labour Court found that the CCMA commissioner failed to conduct the arbitration in a fair and inquisitorial manner, particularly given that both parties were unrepresented and the evidence against the applicants was vague, third-hand hearsay. The commissioner did not probe the absence of direct evidence or explore alternative means of presenting testimony from undercover guards. The applicants were prejudiced by the lack of detail and the failure to assist them in cross-examination. The award was thus reviewed and set aside on the basis of process-related unreasonableness, and substituted with an order declaring the dismissal substantively unfair and awarding compensation.

Citation
[2012] ZALCJHB 176
Parties
Applicant: Nyiso Nkuna; Applicant: Jonathan Msonkho; Applicant: Eric Khoza; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner Nasima Raffee; Respondent: Sabelo Loss Control (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
8 August 2012
Case Number
JR435/2011
Procedural Posture
Review Application / Judgment on Review of CCMA Arbitration Award
Outcome
The arbitration award was reviewed and set aside. The dismissal of the applicants was declared substantively unfair. Compensation was awarded to the applicants and costs were ordered against the third respondent.
Judges
Dodson AJ
Legal Topics
Unfair Dismissal, Compensation for Unfair Dismissal, Procedural Fairness, Review of Arbitration Award
Labour Law Civil Procedure Unfair Dismissal Compensation for Unfair Dismissal Procedural Fairness Review of Arbitration Award

Case Brief

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Parties

Nyiso Nkuna

Applicant

Jonathan Msonkho

Applicant

Eric Khoza

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner Nasima Raffee

Respondent

Sabelo Loss Control (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment on Review of CCMA Arbitration Award

Legal Issues

  1. 1 Whether the CCMA commissioner committed a material irregularity in the conduct of the arbitration proceedings.
  2. 2 Whether the dismissal of the applicants was substantively and procedurally fair.
  3. 3 Whether the award should be reviewed and set aside and substituted with an order of compensation.

Ratio Decidendi

The Labour Court found that the CCMA commissioner failed to conduct the arbitration in a fair and inquisitorial manner, particularly given that both parties were unrepresented and the evidence against the applicants was vague, third-hand hearsay. The commissioner did not probe the absence of direct evidence or explore alternative means of presenting testimony from undercover guards. The applicants were prejudiced by the lack of detail and the failure to assist them in cross-examination. The award was thus reviewed and set aside on the basis of process-related unreasonableness, and substituted with an order declaring the dismissal substantively unfair and awarding compensation.

Court Disposition

The arbitration award was reviewed and set aside. The dismissal of the applicants was declared substantively unfair. Compensation was awarded to the applicants and costs were ordered against the third respondent.

Orders

  • The arbitration award issued by the second respondent under CCMA Case No. GAJB 32358-10 dated 22 December 2010 is reviewed and set aside.
  • The award is replaced with an order declaring the dismissal of the first, second and third applicants substantively unfair.