Urban Africa Security CC v Nkadimeng and Others (JR 2291/09) [2013] ZALCJHB 106 (15 March 2013)

Urban Africa Security CC v Nkadimeng and Others (JR 2291/09) [2013] ZALCJHB 106 (15 March 2013)

The Labour Court found that the Commissioner committed a gross irregularity by failing to consider the material facts and misconstruing the nature of the enquiry. The Commissioner focused on the issue of apology rather than the substantive misconduct for which the employee was dismissed. As no evidence was led on the breakdown of the trust relationship or justification for the sanction, the court could not substitute the CCMA's finding with one of substantive fairness. The proper course was to remit the issue of sanction to the CCMA before a different commissioner for adjudication. The late filing of affidavits by both parties was condoned.

Citation
[2013] ZALCJHB 106
Parties
Applicant: Urban Africa Security CC; Respondent: Commissioner Donald Kgalake Nkadimeng; Respondent: The Commission for Conciliation, Mediation and Arbitration; Respondent: SATAWU obo Kenneth Ngobeni
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
15 March 2013
Case Number
JR 2291/09
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Arbitration award reviewed and set aside; matter remitted to CCMA before a different commissioner; condonation granted for late filing of affidavits; no order as to costs.
Judges
Chavoos
Legal Topics
Unfair Dismissal, Arbitration Review, Condonation of Late Filing, Procedural Irregularity
Labour Law Unfair Dismissal Arbitration Review Condonation of Late Filing Procedural Irregularity

Case Brief

Summary, issues, holding and outcome

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Parties

Urban Africa Security CC

Applicant

Commissioner Donald Kgalake Nkadimeng

Respondent

The Commission for Conciliation, Mediation and Arbitration

Respondent

SATAWU obo Kenneth Ngobeni

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the Commissioner committed a gross irregularity by failing to consider material facts in the arbitration proceedings.
  2. 2 Whether the arbitration award should be reviewed and set aside due to procedural misdirection.
  3. 3 Whether the issue of sanction should be remitted to the CCMA for proper adjudication.

Ratio Decidendi

The Labour Court found that the Commissioner committed a gross irregularity by failing to consider the material facts and misconstruing the nature of the enquiry. The Commissioner focused on the issue of apology rather than the substantive misconduct for which the employee was dismissed. As no evidence was led on the breakdown of the trust relationship or justification for the sanction, the court could not substitute the CCMA's finding with one of substantive fairness. The proper course was to remit the issue of sanction to the CCMA before a different commissioner for adjudication. The late filing of affidavits by both parties was condoned.

Court Disposition

Arbitration award reviewed and set aside; matter remitted to CCMA before a different commissioner; condonation granted for late filing of affidavits; no order as to costs.

Orders

  • The late filing of the Third Respondent’s answering affidavit is condoned.
  • The late filing of the Applicant’s supplementary affidavit is condoned.