Tom v Commission for Conciliation, Mediation and Arbitration and Others (P15/13) [2014] ZALCPE 11 (6 June 2014)

Tom v Commission for Conciliation, Mediation and Arbitration and Others (P15/13) [2014] ZALCPE 11 (6 June 2014)

The court found that the commissioner failed to address a material issue by not affording both parties an opportunity to lead evidence on the employer's handling of the applicant's prior unauthorised absences. This omission was significant because the employer had previously condoned such absences and had not warned the applicant that future misconduct would result in dismissal. The applicant, being unrepresented, could not have known the importance of progressive discipline in influencing the outcome. The commissioner's failure to deal with this issue impacted the substantive merits of the case and rendered the award unreasonable. Consequently, the arbitration award was reviewed and set...

Citation
[2014] ZALCPE 11
Parties
Applicant: Simphiwo Tom; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner Theodorus Potgieter N.O; Respondent: Nelson Mandela Metropolitan University
Court
Labour Court Port Elizabeth
Jurisdiction
South Africa
Judgment Date
6 June 2014
Case Number
P15/13
Procedural Posture
Review Application / Judgment
Outcome
Arbitration award reviewed and set aside; matter remitted for arbitration de novo before a different commissioner.
Judges
Lallie
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Progressive Discipline, Procedural Fairness
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Progressive Discipline Procedural Fairness

Case Brief

Summary, issues, holding and outcome

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Parties

Simphiwo Tom

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner Theodorus Potgieter N.O

Respondent

Nelson Mandela Metropolitan University

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the commissioner committed a gross irregularity by failing to assist an unrepresented litigant with a material issue affecting the reasonableness of the award.
  2. 2 Whether the commissioner failed to consider relevant evidence regarding the employer's application of progressive discipline.
  3. 3 Whether the dismissal for unauthorised absence was substantively and procedurally fair.

Ratio Decidendi

The court found that the commissioner failed to address a material issue by not affording both parties an opportunity to lead evidence on the employer's handling of the applicant's prior unauthorised absences. This omission was significant because the employer had previously condoned such absences and had not warned the applicant that future misconduct would result in dismissal. The applicant, being unrepresented, could not have known the importance of progressive discipline in influencing the outcome. The commissioner's failure to deal with this issue impacted the substantive merits of the case and rendered the award unreasonable. Consequently, the arbitration award was reviewed and set...

Court Disposition

Arbitration award reviewed and set aside; matter remitted for arbitration de novo before a different commissioner.

Orders

  • The arbitration award issued by the second respondent under case number ECPE4479-12 and dated 10 December 2012 is reviewed and set aside.
  • The matter is remitted to the first respondent to be arbitrated de novo by a commissioner other than the second respondent.