Telkom SA Limited v Commission for Conciliation,Mediation and Arbitration and Others (P623/02) [2003] ZALC 47 (6 May 2003)

Telkom SA Limited v Commission for Conciliation,Mediation and Arbitration and Others (P623/02) [2003] ZALC 47 (6 May 2003)

The court found that the applicant failed to provide a complete and sufficient record of the arbitration proceedings, relying instead on incomplete notes. Without a proper record, the court could not assess whether the Commissioner's findings on misconduct and mitigating factors were reviewable or whether it could substitute its own decision. The authorities make clear that a Commissioner has discretion to interfere with the penalty imposed by an employer, and the CCMA is not a mere rubberstamp. The applicant, having persisted with the review on a defective record, must bear the costs. The matter is referred back to the CCMA for rehearing before a different Commissioner.

Citation
[2003] ZALC 47
Parties
Applicant: Telkom SA Limited; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner J A van der Walt; Respondent: Andile Cassel Gosani
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
6 May 2003
Case Number
P623/02
Procedural Posture
Review Application / Judgment
Outcome
Application to set aside the award is granted; matter referred back to the CCMA for rehearing before a different Commissioner; applicant to pay third respondent's costs.
Judges
D Pillay
Legal Topics
Review of Arbitration Award, Onus of Record, Penalty Interference, Condonation of Late Filing
Labour Law Civil Procedure Review of Arbitration Award Onus of Record Penalty Interference Condonation of Late Filing

Case Brief

Summary, issues, holding and outcome

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Parties

Telkom SA Limited

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner J A van der Walt

Respondent

Andile Cassel Gosani

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitration award of the Commissioner should be set aside due to an incomplete record.
  2. 2 Whether the court can substitute its own decision for that of the Commissioner in the absence of a full record.
  3. 3 Whether the Commissioner was entitled to interfere with the penalty imposed by the employer.

Ratio Decidendi

The court found that the applicant failed to provide a complete and sufficient record of the arbitration proceedings, relying instead on incomplete notes. Without a proper record, the court could not assess whether the Commissioner's findings on misconduct and mitigating factors were reviewable or whether it could substitute its own decision. The authorities make clear that a Commissioner has discretion to interfere with the penalty imposed by an employer, and the CCMA is not a mere rubberstamp. The applicant, having persisted with the review on a defective record, must bear the costs. The matter is referred back to the CCMA for rehearing before a different Commissioner.

Court Disposition

Application to set aside the award is granted; matter referred back to the CCMA for rehearing before a different Commissioner; applicant to pay third respondent's costs.

Orders

  • The application for condonation of the late filing of the applicant's heads is granted, with no order as to costs.
  • The application to set aside the award is granted.