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2002
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[2002] ZALCJHB 25
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Rowans Construction v Commission for Conciliation Mediation And Arbitration and Others (JR229/01) [2002] ZALCJHB 25 (3 August 2002)
[COMMENT1]
Sneller
Verbatim/MLS
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR 229/01
2002-08-03
In
the matter between
ROWANS
CONSTRUCTION Applicant
and
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION 1
ST
Respondent
MATEE D,
NO 2
nd
Respondent
LOGGENBERG A
M 3
RD
Respondent
J
U D G M E N T
EX
TEMPORE
REVELAS
J
:
1.
This is an unopposed application for review of an arbitration award
in terms of which the third respondent was reinstated in
the employ
of the applicant who had previously dismissed the third respondent
for alleged misconduct.
2.
A dispute for an alleged unfair dismissal was referred to the
Commission for Conciliation, Mediation and Arbitration, (“the
CCMA”), where the first respondent, the arbitrator, held the
dismissal to be unfair on the basis that the third respondent
committed no misconduct whatsoever.
3.
The grounds upon which the applicant submits that the award should be
interfered with on review is that the arbitrator who conducted
the
arbitration proceedings under the auspices of the CCMA had made
himself guilty of gross misconduct.
4.
On the facts before me, which are not in dispute, this submission
appears to be correct. The arbitrator, according
to the
founding affidavit, had an “intense discussion" with the
third respondent during a forty minute break taken during
the
arbitration proceedings.
5.
At no time during this break did the arbitrator have any discussion
with the applicant's representatives and there was no indication
why
the second the arbitrator entered into these discussions.
6.
An application was brought for his recusal but the first respondent
dismissed the application without providing adequate reasons.
The arbitrator also made certain statements in his award which tend
to support to the applicant's complaint of perceived bias.
7.
The following are examples thereof and I quote from the award on page
60 of the record:
"
The explanation
by the applicant's representative in that the respondent was very
rude and even threatened him during ...
is to my mind, more
probable than not. It came out clear during the
arbitration hearing in my presence again, albeit
hearsay
."
I
quote further:
"
The charges of
insolence and deliberate reduction of production are far-fetched in
this instance. Let alone the respondent's
failure to
state what were the grounds for the dismissal in the in house
hearing
."
8.
This is factually incorrect simply because there is a record of the
disciplinary hearing where such allegations were put forward.
9.
These and other statements to which I am not inclined to quote in
this judgment, demonstrated the second respondent's attitude
to the
matter.
10.
In the circumstances the arbitration award should be set aside and
referred to the CCMA to be arbitrated by a different commissioner.
11.
I make the following order:
1. The
award made by the second respondent is set aside and the dispute is
referred to the CCMA for arbitration
before a different commissioner.
________________
E.
Revelas
[COMMENT1]
BEGIN
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