Rowans Construction v Commission for Conciliation Mediation And Arbitration and Others (JR229/01) [2002] ZALCJHB 25 (3 August 2002)
- Citation
- [2002] ZALCJHB 25
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Labour Court Johannesburg
- Panel
- E Revelas
- Case number
- JR229/01
More details
- Court
- Labour Court Johannesburg
- Panel
- E Revelas
- Case number
- JR229/01
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the arbitrator's conduct, specifically engaging in an intense discussion with the third respondent during a break and failing to interact with the applicant's representatives, constituted gross misconduct. The arbitrator's refusal to recuse himself and the presence of factual inaccuracies and biased statements in the award further demonstrated a lack of impartiality. These procedural irregularities undermined the fairness of the arbitration process. Consequently, the award was set aside and the dispute referred for arbitration before a different commissioner.
Court disposition
Application for review granted; arbitration award set aside and dispute referred for fresh arbitration.
Orders
- The award made by the second respondent is set aside.
- The dispute is referred to the CCMA for arbitration before a different commissioner.
02
Material facts
Parties
Rowans Construction
ApplicantCommission for Conciliation Mediation and Arbitration
RespondentMatee D, NO
RespondentLoggenberg A M
Respondent03
Procedural history
Posture
Review Application / Unopposed Review of Arbitration Award
04
Questions and positions
Legal issues
- 01
Whether the arbitrator committed gross misconduct during the arbitration proceedings.
- 02
Whether the arbitrator's conduct and statements demonstrated bias against the applicant.
- 03
Whether the arbitration award should be set aside due to procedural irregularities.
Party arguments
- Applicant
- The applicant contended that the arbitrator engaged in an intense discussion with the third respondent during a break, without any engagement with the applicant's representatives. This conduct, coupled with statements made in the award, indicated gross misconduct and perceived bias. The applicant argued that the arbitrator's refusal to recuse himself and the factual inaccuracies in the award further supported the claim of unfairness.
- Respondent
- No argument was presented by the respondents as the application was unopposed.
05
Court’s reasoning
Legal principles
- 01
Labour Relations Act, 66 of 1995
An arbitrator must conduct proceedings impartially and avoid conduct that gives rise to a reasonable perception of bias.
- 02
Sidumo v Rustenburg Platinum Mines Ltd [2007] ZACC 22
Where an arbitrator is guilty of gross misconduct or bias, the award may be set aside on review.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the arbitrator's conduct, specifically engaging in an intense discussion with the third respondent during a break and failing to interact with the applicant's representatives, constituted gross misconduct. The arbitrator's refusal to recuse himself and the presence of factual inaccuracies and biased statements in the award further demonstrated a lack of impartiality. These procedural irregularities undermined the fairness of the arbitration process. Consequently, the award was set aside and the dispute referred for arbitration before a different commissioner.
Obiter and limits
- The court noted that arbitrators must maintain strict impartiality and transparency throughout proceedings to preserve the integrity of the dispute resolution process.
- The presence of factual inaccuracies in an award may indicate a failure to properly consider the evidence and can support a finding of bias.
Court disposition
Application for review granted; arbitration award set aside and dispute referred for fresh arbitration.
- The award made by the second respondent is set aside.
- The dispute is referred to the CCMA for arbitration before a different commissioner.
Source and reliance status
Labour Court Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Labour Court Johannesburg
Judgment
[COMMENT1] Sneller Verbatim/MLS
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE NO: JR 229/01
2002-08-03
In the matter between
ROWANS CONSTRUCTION Applicant
and
COMMISSION
FOR CONCILIATION MEDIATION
AND ARBITRATION 1ST Respondent
MATEE D, NO 2nd Respondent
LOGGENBERG A M 3RD Respondent
J
U D G M E N T
EX
TEMPORE
REVELAS J:
1. This is an unopposed application for review of an arbitration award in terms of which the third respondent was reinstated in the employ of the applicant who had previously dismissed the third respondent for alleged misconduct.
2. A dispute for an alleged unfair dismissal was referred to the Commission for Conciliation, Mediation and Arbitration, (“the
CCMA”), where the first respondent, the arbitrator, held the dismissal to be unfair on the basis that the third respondent
committed no misconduct whatsoever.
3. The grounds upon which the applicant submits that the award should be interfered with on review is that the arbitrator who conducted the arbitration proceedings under the auspices of the CCMA had made himself guilty of gross misconduct.
4. On the facts before me, which are not in dispute, this submission appears to be correct. The arbitrator, according to the founding affidavit, had an “intense discussion" with the third respondent during a forty minute break taken during the arbitration proceedings.
5. At no time during this break did the arbitrator have any discussion with the applicant's representatives and there was no indication why the second the arbitrator entered into these discussions.
6. An application was brought for his recusal but the first respondent dismissed the application without providing adequate reasons.
The arbitrator also made certain statements in his award which tend to support to the applicant's complaint of perceived bias.
7. The following are examples thereof and I quote from the award on page 60 of the record:
"The explanation by the applicant's representative in that the respondent was very rude and even threatened him during ... is to my mind, more probable than not. It came out clear during the arbitration hearing in my presence again, albeit hearsay."
I quote further:
"The charges of insolence and deliberate reduction of production are far-fetched in this instance. Let alone the respondent's failure to state what were the grounds for the dismissal in the in house hearing."
8. This is factually incorrect simply because there is a record of the disciplinary hearing where such allegations were put forward.
9. These and other statements to which I am not inclined to quote in this judgment, demonstrated the second respondent's attitude to the matter.
10. In the circumstances the arbitration award should be set aside and referred to the CCMA to be arbitrated by a different commissioner.
11. I make the following order:
1. The award made by the second respondent is set aside and the dispute is referred to the CCMA for arbitration before a different commissioner.
____
E. Revelas
[COMMENT1]BEGIN DEUR 'N "HEADER" TE MAAK
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