NUM and Another v Tokiso Dispute Settlement (Pty) Ltd and Others (JR654/ 03) [2006] ZALC 33; [2006] 8 BLLR 729 (LC); (2006) 27 ILJ 1193 (LC) (3 February 2006)

NUM and Another v Tokiso Dispute Settlement (Pty) Ltd and Others (JR654/ 03) [2006] ZALC 33; [2006] 8 BLLR 729 (LC); (2006) 27 ILJ 1193 (LC) (3 February 2006)

The court found that the arbitrator committed a gross irregularity by effectively changing the charge against the applicant to match the date on which the applicant was absent, without sufficient evidence of the workplace convention regarding shift dates. The arbitrator failed to resolve the contradiction about which shift the charge referred to and did not properly apply his mind to the evidence. Additionally, the delay in raising the medical certificate as a defence was not attributable to the applicant, as the employer delayed the disciplinary and appeal hearings. The award was therefore reviewed and set aside, and the matter was remitted for a fresh hearing before another commissioner.

Citation
[2006] ZALC 33
Parties
Applicant: Num; Applicant: Mpamo Mokoena; Respondent: Tokiso Dispute Settlement (Pty) Ltd; Respondent: M.H Marcus N.O.; Respondent: Anglo Operations Ltd
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
3 February 2006
Case Number
JR654/ 03
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The matter is remitted for a de novo hearing before another commissioner. Costs are awarded against the third respondent.
Judges
Cele AJ
Legal Topics
Review of Arbitration Award, Gross Irregularity, Onus of Proof in Dismissal, Procedural Fairness, Medical Certificate as Defence
Labour Law Civil Procedure Review of Arbitration Award Gross Irregularity Onus of Proof in Dismissal Procedural Fairness Medical Certificate as Defence

Case Brief

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Parties

Num

Applicant

Mpamo Mokoena

Applicant

Tokiso Dispute Settlement (Pty) Ltd

Respondent

M.H Marcus N.O.

Respondent

Anglo Operations Ltd

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator committed a gross irregularity by changing the charge against the applicant.
  2. 2 Whether the failure to consider the convention regarding shift dates constituted a reviewable irregularity.
  3. 3 Whether the delay in raising the medical certificate as a defence should be held against the applicant.

Ratio Decidendi

The court found that the arbitrator committed a gross irregularity by effectively changing the charge against the applicant to match the date on which the applicant was absent, without sufficient evidence of the workplace convention regarding shift dates. The arbitrator failed to resolve the contradiction about which shift the charge referred to and did not properly apply his mind to the evidence. Additionally, the delay in raising the medical certificate as a defence was not attributable to the applicant, as the employer delayed the disciplinary and appeal hearings. The award was therefore reviewed and set aside, and the matter was remitted for a fresh hearing before another commissioner.

Court Disposition

The arbitration award is reviewed and set aside. The matter is remitted for a de novo hearing before another commissioner. Costs are awarded against the third respondent.

Orders

  • The award issued by Commissioner Marcus on 25 February 2003 in case number Tolko 3 / 10A is reviewed and set aside.
  • The matter is remitted to the first respondent for a de novo hearing before another commissioner.