Van Aswegen v Commission for Conciliation Mediation And Arbitration and Others (JR249/02) [2003] ZALCJHB 18 (27 May 2003)

Van Aswegen v Commission for Conciliation Mediation And Arbitration and Others (JR249/02) [2003] ZALCJHB 18 (27 May 2003)

The court held that the commissioner erred in limiting compensation to six months. Since neither party was responsible for the delay and both substantive and procedural unfairness were found, the applicant was entitled to compensation for the entire period from dismissal to the conclusion of arbitration, which was...

Source-derived case information.

Citation
[2003] ZALCJHB 18
Parties
Applicant: Darryn Van Aswegen; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Buti Zwane NO; Respondent: Telemessage (Pty) Limited
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
27 May 2003
Case Number
JR249/02
Procedural Posture
Review Application / Judgment
Outcome
The review application succeeds. The compensation order is corrected to award the applicant remuneration for eleven months and fourteen days. Condonation for late filing is granted. Costs are awarded against the third respondent.
Judges
Francis
Legal Topics
Compensation for Unfair Dismissal, Review of Arbitration Award, Condonation of Late Filing
Labour Law Civil Procedure Compensation for Unfair Dismissal Review of Arbitration Award Condonation of Late Filing

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Summary, issues, holding and outcome

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Parties

Darryn Van Aswegen

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Buti Zwane NO

Respondent

Telemessage (Pty) Limited

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the commissioner misdirected himself in awarding only six months' compensation despite finding both substantive and procedural unfairness.
  2. 2 Whether the applicant was entitled to compensation for the full period between dismissal and conclusion of arbitration.
  3. 3 Whether condonation for late filing of the replying affidavit should be granted.

Ratio Decidendi

The court held that the commissioner erred in limiting compensation to six months. Since neither party was responsible for the delay and both substantive and procedural unfairness were found, the applicant was entitled to compensation for the entire period from dismissal to the conclusion of arbitration, which was eleven months and fourteen days. The commissioner was obliged to award remuneration equivalent to that period, subject to the statutory twelve-month cap. The court corrected the award to reflect the full period and granted condonation for the late filing of the replying affidavit.

Court Disposition

The review application succeeds. The compensation order is corrected to award the applicant remuneration for eleven months and fourteen days. Condonation for late filing is granted. Costs are awarded against the third respondent.

Orders

  • The compensation order in the arbitration award dated 21 January 2002 under case number GA127301 is reviewed and corrected.
  • The third respondent is directed to pay the applicant the sum of R110,476.55, being the equivalent of eleven months and fourteen days' remuneration.