NUMSA and Another v Mavuma NO and Others (JR2724/12) [2015] ZALCJHB 227 (31 July 2015)

NUMSA and Another v Mavuma NO and Others (JR2724/12) [2015] ZALCJHB 227 (31 July 2015)

The commissioner failed to deal with the substantial merits of the dispute by not considering the relevant occupational health and safety legislation and the employer's procedures governing work in confined spaces. The second applicant's refusal to carry out the instruction was based on a legitimate concern for safety and lack of training, which the commissioner did not adequately address. By disregarding material evidence and failing to assess the lawfulness and reasonableness of the instruction, the commissioner reached a decision that a reasonable decision-maker could not have reached. The arbitration award was therefore unreasonable and reviewable.

Citation
[2015] ZALCJHB 227
Parties
Applicant: NUMSA; Applicant: J B Mashaba; Respondent: Dheliwe Mavuma N.O.; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Rustenburg Base Metal Refinery
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
31 July 2015
Case Number
JR2724/12
Procedural Posture
Review Application / Judgment
Outcome
Arbitration award reviewed and set aside; matter remitted for fresh arbitration before a different arbitrator.
Judges
Lallie
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Occupational Health and Safety, Confined Spaces, Procedural Fairness
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Occupational Health and Safety Confined Spaces Procedural Fairness

Case Brief

Summary, issues, holding and outcome

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Parties

NUMSA

Applicant

J B Mashaba

Applicant

Dheliwe Mavuma N.O.

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Rustenburg Base Metal Refinery

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the commissioner failed to deal with the substantial merits of the dispute.
  2. 2 Whether the arbitration award was reasonable in light of the evidence and applicable legislation.
  3. 3 Whether the second applicant's refusal to carry out instructions was justified under occupational health and safety legislation.

Ratio Decidendi

The commissioner failed to deal with the substantial merits of the dispute by not considering the relevant occupational health and safety legislation and the employer's procedures governing work in confined spaces. The second applicant's refusal to carry out the instruction was based on a legitimate concern for safety and lack of training, which the commissioner did not adequately address. By disregarding material evidence and failing to assess the lawfulness and reasonableness of the instruction, the commissioner reached a decision that a reasonable decision-maker could not have reached. The arbitration award was therefore unreasonable and reviewable.

Court Disposition

Arbitration award reviewed and set aside; matter remitted for fresh arbitration before a different arbitrator.

Orders

  • The arbitration award issued by the first respondent under case number NWRB 1476-12 and dated 20 September 2012 is reviewed and set aside.
  • The matter is remitted to the second respondent to be arbitrated de novo by an arbitrator other than the first respondent.