Department of Home Affairs v General Public Service Sectoral Bargaining Council and Others (JR2134/15) [2017] ZALCJHB 400; (2018) 39 ILJ 248 (LC) (17 October 2017)

Department of Home Affairs v General Public Service Sectoral Bargaining Council and Others (JR2134/15) [2017] ZALCJHB 400; (2018) 39 ILJ 248 (LC) (17 October 2017)

The commissioner committed a gross irregularity by refusing the department's request to lead oral evidence and by determining the dispute solely on written submissions and documents, without a stated case or agreement on the status of documents. This deprived the department of its right to a procedurally fair hearing, as required by section 145 of the LRA and the constitutional right to lawful and fair administrative action. The agreement reached between the parties did not extend to the status of documents as evidence, and the commissioner failed to ensure the dispute was fully and fairly determined. The defect in the proceedings is so fundamental that it warrants the setting aside of...

Citation
[2017] ZALCJHB 400
Parties
Applicant: Department of Home Affairs; Respondent: General Public Service Sectoral Bargaining Council; Respondent: Martin Sambo N.O.; Respondent: N H Moremi & 30 Others
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
17 October 2017
Case Number
JR2134/15
Procedural Posture
Review Application / Judgment on Review and Condonation
Outcome
Review application granted; arbitration award set aside; dispute referred for fresh arbitration before a different commissioner; condonation for late filing granted; no order as to costs.
Judges
Myburgh, AJ
Legal Topics
Unfair Labour Practice, Promotion Dispute, Condonation for Late Filing, Procedural Fairness, Arbitration Review
Labour Law Civil Procedure Unfair Labour Practice Promotion Dispute Condonation for Late Filing Procedural Fairness Arbitration Review

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Parties

Department of Home Affairs

Applicant

General Public Service Sectoral Bargaining Council

Respondent

Martin Sambo N.O.

Respondent

N H Moremi & 30 Others

Respondent

Procedural Posture

Review Application / Judgment on Review and Condonation

Legal Issues

  1. 1 Whether the commissioner committed a reviewable irregularity by refusing oral evidence and determining the dispute on documents and heads of argument only.
  2. 2 Whether the absence of a stated case or agreement on the status of documents rendered the arbitration procedurally unfair.
  3. 3 Whether condonation for the late filing of the review application should be granted.

Ratio Decidendi

The commissioner committed a gross irregularity by refusing the department's request to lead oral evidence and by determining the dispute solely on written submissions and documents, without a stated case or agreement on the status of documents. This deprived the department of its right to a procedurally fair hearing, as required by section 145 of the LRA and the constitutional right to lawful and fair administrative action. The agreement reached between the parties did not extend to the status of documents as evidence, and the commissioner failed to ensure the dispute was fully and fairly determined. The defect in the proceedings is so fundamental that it warrants the setting aside of...

Court Disposition

Review application granted; arbitration award set aside; dispute referred for fresh arbitration before a different commissioner; condonation for late filing granted; no order as to costs.

Orders

  • Condonation for the late launching of the review application is granted.
  • The arbitration award issued by the second respondent is reviewed and set aside.