Num and Another v Tokiso Dispute Settlement (Pty) Ltd and Others (JR654/03) [2006] ZALCJHB 24 (3 February 2006)

Num and Another v Tokiso Dispute Settlement (Pty) Ltd and Others (JR654/03) [2006] ZALCJHB 24 (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 he was absent, rather than the period for which he was charged. There was no evidence from the employer to prove the alleged common practice regarding shift dates. The arbitrator failed to resolve the contradiction relating to the essential allegation of the charge and did not apply his mind to the evidence. Additionally, the delay in presenting the medical certificate could not be held against the applicant, as the delay in internal hearings was not attributable to him. The award was therefore reviewed and set aside, and the matter was...

Citation
[2006] ZALCJHB 24
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 Johannesburg
Jurisdiction
South Africa
Judgment Date
3 February 2006
Case Number
JR654/03
Procedural Posture
Review Application / Judgment
Outcome
Application for review granted; arbitration award set aside and matter remitted for rehearing before a different commissioner; costs awarded against the third respondent.
Judges
Cele AJ
Legal Topics
Arbitration Review, Gross Irregularity, Substantive Fairness, Burden of Proof
Labour Law Civil Procedure Arbitration Review Gross Irregularity Substantive Fairness Burden of Proof

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

Legal Issues

  1. 1 Whether the arbitrator committed a gross irregularity by changing the charge against the applicant.
  2. 2 Whether the applicant's delay in submitting a medical certificate could be held against him.
  3. 3 Whether the dismissal of the applicant was substantively fair.

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 he was absent, rather than the period for which he was charged. There was no evidence from the employer to prove the alleged common practice regarding shift dates. The arbitrator failed to resolve the contradiction relating to the essential allegation of the charge and did not apply his mind to the evidence. Additionally, the delay in presenting the medical certificate could not be held against the applicant, as the delay in internal hearings was not attributable to him. The award was therefore reviewed and set aside, and the matter was...

Court Disposition

Application for review granted; arbitration award set aside and matter remitted for rehearing before a different commissioner; costs 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.