Windvogel v Commission for Conciliation Mediation and Arbitration and Others (PR200/20) [2022] ZALCPE 23 (19 August 2022)

Windvogel v Commission for Conciliation Mediation and Arbitration and Others (PR200/20) [2022] ZALCPE 23 (19 August 2022)

The court found that the commissioner committed a gross irregularity by redefining the dispute and allowing the third respondent legal representation without a proper application, contrary to Rule 25 of the CCMA Rules and the prior ruling of commissioner Du toit. This conduct breached the duty to conduct the arbitration fairly as required by section 138 of the LRA and denied the applicant a fair hearing. The commissioner lacked authority to overrule the previous ruling, and his actions vitiated the award. The award was therefore reviewed and set aside, and the matter remitted for arbitration de novo before a different commissioner.

Citation
[2022] ZALCPE 23
Parties
Applicant: Lettie Windvogel; Respondent: The Commission for Conciliation Mediation and Arbitration; Respondent: Commissioner F Sauls N.O.; Respondent: Thomas Ferreira t/a Pietlam BK
Court
Labour Court Port Elizabeth
Jurisdiction
South Africa
Judgment Date
19 August 2022
Case Number
PR200/20
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The matter is remitted for arbitration de novo before a different commissioner. No order as to costs.
Judges
Lallie
Legal Topics
Unfair Dismissal, Arbitration Review, Legal Representation, Gross Irregularity, Procedural Fairness
Labour Law Civil Procedure Unfair Dismissal Arbitration Review Legal Representation Gross Irregularity Procedural Fairness

Case Brief

Summary, issues, holding and outcome

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Parties

Lettie Windvogel

Applicant

The Commission for Conciliation Mediation and Arbitration

Respondent

Commissioner F Sauls N.O.

Respondent

Thomas Ferreira t/a Pietlam BK

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the commissioner misconceived the enquiry into the fairness of the applicant's dismissal.
  2. 2 Whether the commissioner erred in allowing legal representation for the third respondent without proper application.
  3. 3 Whether the commissioner's conduct constituted a gross irregularity justifying review and setting aside of the award.

Ratio Decidendi

The court found that the commissioner committed a gross irregularity by redefining the dispute and allowing the third respondent legal representation without a proper application, contrary to Rule 25 of the CCMA Rules and the prior ruling of commissioner Du toit. This conduct breached the duty to conduct the arbitration fairly as required by section 138 of the LRA and denied the applicant a fair hearing. The commissioner lacked authority to overrule the previous ruling, and his actions vitiated the award. The award was therefore reviewed and set aside, and the matter remitted for arbitration de novo before a different commissioner.

Court Disposition

The arbitration award is reviewed and set aside. The matter is remitted for arbitration de novo before a different commissioner. No order as to costs.

Orders

  • The arbitration award issued by the second respondent under case number ECPE8720-19 dated 29 October 2020 is reviewed and set aside.
  • The matter is remitted to the first respondent to be arbitrated de novo by a commissioner other than the second respondent.