Wade Walker (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1870/14) [2017] ZALCJHB 296; (2017) 38 ILJ 2842 (LC) (8 August 2017)

Wade Walker (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1870/14) [2017] ZALCJHB 296; (2017) 38 ILJ 2842 (LC) (8 August 2017)

The commissioner committed a gross irregularity by refusing the company's application for a postponement without properly considering the balance of prejudice, especially where the employee agreed to the postponement and the company was unprepared due to lack of notice. The commissioner failed to address the substance of the application and acted procedurally unfairly, misconceived the nature of the enquiry, and acted unreasonably. The award was therefore reviewable and must be set aside.

Citation
[2017] ZALCJHB 296
Parties
Applicant: Wade Walker (Pty) Ltd; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Nicholus Sono N.O.; Respondent: Clement Masite
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
8 August 2017
Case Number
JR1870/14
Procedural Posture
Review Application / Judgment on Review of CCMA Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The dispute is referred back to the CCMA for a fresh hearing before a different commissioner. No order as to costs.
Judges
Myburgh, AJ
Legal Topics
Postponement of Arbitration, Procedural Fairness, Reviewable Irregularity, Balance of Prejudice, Gross Irregularity
Labour Law Administrative Law Postponement of Arbitration Procedural Fairness Reviewable Irregularity Balance of Prejudice Gross Irregularity

Case Brief

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Parties

Wade Walker (Pty) Ltd

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Nicholus Sono N.O.

Respondent

Clement Masite

Respondent

Procedural Posture

Review Application / Judgment on Review of CCMA Arbitration Award

Legal Issues

  1. 1 Did the commissioner commit a reviewable irregularity by refusing the company's application for a postponement of the CCMA arbitration?
  2. 2 Was the refusal of the postponement procedurally unfair and unreasonable?
  3. 3 Did the commissioner fail to properly assess the balance of prejudice between the parties?

Ratio Decidendi

The commissioner committed a gross irregularity by refusing the company's application for a postponement without properly considering the balance of prejudice, especially where the employee agreed to the postponement and the company was unprepared due to lack of notice. The commissioner failed to address the substance of the application and acted procedurally unfairly, misconceived the nature of the enquiry, and acted unreasonably. The award was therefore reviewable and must be set aside.

Court Disposition

The arbitration award is reviewed and set aside. The dispute is referred back to the CCMA for a fresh hearing before a different commissioner. No order as to costs.

Orders

  • The second respondent's award is reviewed and set aside.
  • The dispute arising from the third respondent's dismissal is referred back to the first respondent for a fresh hearing by a commissioner other than the second respondent.