Sonke obo Pedro v Commission for Conciliation. Mediation and Arbitration and Others (C814/2005) [2007] ZALCCT 8 (7 March 2007)

Sonke obo Pedro v Commission for Conciliation. Mediation and Arbitration and Others (C814/2005) [2007] ZALCCT 8 (7 March 2007)

The Labour Court found that the arbitration proceedings before the Commissioner were procedurally unfair due to the incomplete translation of material Afrikaans evidence into English, which created uncertainty as to whether the Commissioner fully understood or properly considered all relevant testimony. The...

Source-derived case information.

Citation
[2007] ZALCCT 8
Parties
Applicant: Sikhula Sonke obo Willem Pedro; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner Gail McEwan; Respondent: Fairfield Boerdery
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
7 March 2007
Case Number
C814/2005
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award of the second respondent is reviewed and set aside. The dispute is referred back to the CCMA for re-arbitration before a different Commissioner. No order as to costs.
Judges
Deon Nel
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Procedural Fairness, Interpretation Services, Disciplinary Procedure
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Procedural Fairness Interpretation Services Disciplinary Procedure

Source-derived case record

Summary, issues, holding and outcome

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Parties

Sikhula Sonke obo Willem Pedro

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner Gail McEwan

Respondent

Fairfield Boerdery

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the Commissioner failed to properly apply her mind to the evidence presented at arbitration.
  2. 2 Whether the lack of complete interpretation from Afrikaans to English resulted in a procedurally unfair hearing.
  3. 3 Whether the Commissioner committed reviewable irregularities in the conduct of the arbitration proceedings.

Ratio Decidendi

The Labour Court found that the arbitration proceedings before the Commissioner were procedurally unfair due to the incomplete translation of material Afrikaans evidence into English, which created uncertainty as to whether the Commissioner fully understood or properly considered all relevant testimony. The Commissioner failed to address significant contradictions in the evidence, did not provide adequate reasons for accepting the employer's version over the applicant's, and improperly restricted cross-examination by prohibiting leading questions. The conduct of the employer's representative was also not properly regulated, further undermining the fairness of the hearing. These cumulative...

Court Disposition

The arbitration award of the second respondent is reviewed and set aside. The dispute is referred back to the CCMA for re-arbitration before a different Commissioner. No order as to costs.

Orders

  • The second respondent's award dated 8 October 2005 with case number WE9968/05 is reviewed and set aside.
  • The dispute is referred back to the first respondent to be arbitrated by a Commissioner other than the second respondent.