Polymark Recycling (Pty) Ltd v Mohulatsi and Others (JR511/08) [2010] ZALCJHB 54 (19 March 2010)

Polymark Recycling (Pty) Ltd v Mohulatsi and Others (JR511/08) [2010] ZALCJHB 54 (19 March 2010)

The court found that the arbitrator materially misdirected himself in several respects, including his treatment of the employee's failure to attend disciplinary hearings scheduled on off days, his assessment of the evidence regarding absenteeism and insubordination, and his approach to the medical evidence. The arbitrator failed to properly consider the employer's operational requirements and the established practice of scheduling hearings, and did not give the employer's witnesses an opportunity to respond to new evidence raised at arbitration. Due to deficiencies in the record and the manner in which the arbitration was conducted, the court held that the award should be reviewed and set...

Citation
[2010] ZALCJHB 54
Parties
Applicant: Polymark Recycling (Pty) Limited; Respondent: Stoffel Mohulatsi; Respondent: The Commission for Conciliation, Mediation and Arbitration; Respondent: NUMSA obo Dibakwane
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
19 March 2010
Case Number
JR511/08
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The matter is remitted to the CCMA for rehearing before a different arbitrator. The third respondent is ordered to pay the applicant's costs.
Judges
KS Tip
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Procedural Fairness, Remittal to Ccma
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Procedural Fairness Remittal to Ccma

Case Brief

Summary, issues, holding and outcome

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Parties

Polymark Recycling (Pty) Limited

Applicant

Stoffel Mohulatsi

Respondent

The Commission for Conciliation, Mediation and Arbitration

Respondent

NUMSA obo Dibakwane

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator misdirected himself in finding the dismissal of Mr Dibakwane unfair on both procedural and substantive grounds.
  2. 2 Whether the arbitrator erred in his treatment of the employee's failure to attend disciplinary hearings scheduled on off days.
  3. 3 Whether the arbitrator properly considered the evidence regarding absenteeism, insubordination, and medical assessments.

Ratio Decidendi

The court found that the arbitrator materially misdirected himself in several respects, including his treatment of the employee's failure to attend disciplinary hearings scheduled on off days, his assessment of the evidence regarding absenteeism and insubordination, and his approach to the medical evidence. The arbitrator failed to properly consider the employer's operational requirements and the established practice of scheduling hearings, and did not give the employer's witnesses an opportunity to respond to new evidence raised at arbitration. Due to deficiencies in the record and the manner in which the arbitration was conducted, the court held that the award should be reviewed and set...

Court Disposition

The arbitration award is reviewed and set aside. The matter is remitted to the CCMA for rehearing before a different arbitrator. The third respondent is ordered to pay the applicant's costs.

Orders

  • The award delivered by the first respondent on 23 January 2008 under case number NW2615-07 is reviewed and set aside.
  • The third respondent is ordered to pay the applicant's costs in respect of this review.