Tsotetsi v Commission for Conciliation Mediation and Arbitration and Others (JR 730/08) [2011] ZALCJHB 149 (28 September 2011)

Tsotetsi v Commission for Conciliation Mediation and Arbitration and Others (JR 730/08) [2011] ZALCJHB 149 (28 September 2011)

The court found that the commissioner did in fact hear the matter afresh, with both parties leading evidence and making submissions. The applicant was represented by a legal practitioner, and the commissioner based his award on the evidence presented, not on the previous award. The references to the prior award during proceedings were not objected to by the applicant and did not indicate bias. The commissioner evaluated the evidence, particularly regarding the applicant's resignation, and reasonably preferred the employer's version. The applicant failed to discharge the onus of proving constructive dismissal. The grounds of appeal were substantially the same as those raised in the review...

Citation
[2011] ZALCJHB 149
Parties
Applicant: Tsotetsi, S A; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Raffee, M (N.O.); Respondent: Multimed
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
28 September 2011
Case Number
JR 730/08
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Review Application
Outcome
Application for leave to appeal dismissed.
Judges
Lagrange
Legal Topics
Constructive Dismissal, Review of Arbitration Award, Bias of Commissioner, Evaluation of Evidence
Labour Law Constructive Dismissal Review of Arbitration Award Bias of Commissioner Evaluation of Evidence

Case Brief

Summary, issues, holding and outcome

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Parties

Tsotetsi, S A

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Raffee, M (N.O.)

Respondent

Multimed

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Review Application

Legal Issues

  1. 1 Whether the commissioner failed to consider the matter afresh after referral back to the CCMA.
  2. 2 Whether the commissioner was biased in conducting the arbitration.
  3. 3 Whether the commissioner properly evaluated the evidence presented.

Ratio Decidendi

The court found that the commissioner did in fact hear the matter afresh, with both parties leading evidence and making submissions. The applicant was represented by a legal practitioner, and the commissioner based his award on the evidence presented, not on the previous award. The references to the prior award during proceedings were not objected to by the applicant and did not indicate bias. The commissioner evaluated the evidence, particularly regarding the applicant's resignation, and reasonably preferred the employer's version. The applicant failed to discharge the onus of proving constructive dismissal. The grounds of appeal were substantially the same as those raised in the review...

Court Disposition

Application for leave to appeal dismissed.

Orders

  • The application for leave to appeal is dismissed.
  • No order is made as to costs.