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[2015] ZALCJHB 315
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Labournet Central (Pty) Ltd v Jansen Van Vuuren NO and Others (JR1312/11) [2015] ZALCJHB 315 (15 September 2015)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Case
No: JR1312/11
DATE:
15 SEPTEMBER 2015
LABOURNET
CENTRAL (PTY)
LTD
...................................................................................
Applicant
And
COMMISSIONER
G S JANSEN VAN VUUREN,
N.O
............................................
First
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
......................................................................
Second
Respondent
NIEL
MAYS
.................................................................................................................
Third
Respondent
Heard:
03 July 2014
Delivered:
15 September 2015
Summary:
Application for review in terms of s. 145 of the LRA; Applicant
inter
alia
contending that the
Commissioner was bias; Commissioner evidently impartial; Excepts from
the record revealing unwarranted interference,
questioning and
remarks sustaining the apprehension of bias; Applicant not afforded a
fair hearing; Award set aside on this basis
alone; Application
granted with no order as to costs.
JUDGMENT
VOYI
AJ
Introduction
[1]
The
Applicant seeks to review and set aside an arbitration award issued
by the First Respondent (hereinafter “
the
Commissioner
”)
on 24 May 2011 under case number GATW13012-10. The application for
review is launched in terms of the provisions of s 145
of the Labour
Relations Act.
[1]
[2]
The
application was launched on 05 July 2011
[2]
and
it is opposed only by the Third Respondent.
Background
[3]
The Applicant is Labournet Central (Pty)
Ltd, a company providing
inter alia
industrial relations products and services to its client on a
retainer basis. It employed the Third Respondent (hereinafter “
Mr
Mays
”) as its sales consultant
for the Pretoria branch of the business.
[4]
Mr Mays was employed with effect from 1
November 2009. His basic salary was a fixed amount of R10 000.00. As
a sales consultant,
he had an agreed monthly sales target of R10
000.00. He was also entitled to earn commission over and above the
basic salary, provided
that he exceeded 50% of his target.
[5]
For the first month of his employment, it
being November 2009, Mr Mays was not expected to achieve any target.
During this time,
he was expected to take some time in learning about
the Applicant’s products and services. It was in December 2009
that he
was expected to commence attaining some target, albeit at a
reduced amount.
[6]
For the month of December 2009, the target
he had to meet was an amount of R3 000.00. This gradually increased
and in January 2010,
he was expected to reach R5 000.00 on sales. The
agreed monthly sales target of R10 000.00 only took effect on the
month of February
2010. From then onwards, he was expected to meet
his fixed monthly sales target of R10 000.00.
[7]
As for his actual performance as against
the set target, Mr Mays managed to attain his fixed monthly sales
target
only
for the months of April 2010 and May 2010. On February 2010, he only
attained R3 950.00 on sales. For March 2010, he reached
R8 440.00 on his actual sales.
[8]
In April 2010, Mr Mays exceeded his target
by 19%, attaining actual sales to the amount of R11 900.00. The month
of May 2010 was
even better, he having attained R13 000.00 on his
sales.
[9]
It was from June 2010 onwards that Mr Mays
began to perform poorly. It is common cause that Mr Mays’
performance from June
2010 until the date he was dismissed was below
the expected standard. For June 2010, he only attained
R1 275.00 on his
sales target. The sales target was also not met
for July 2010, with Mr Mays only reaching R3 725.00 on his set
monthly sales
target of R10 000.00.
[10]
On 3 August 2010, one Ms Gillian Barnes
(“
Ms Barnes
”),
who was the Applicant’s Branch Manager for the Pretoria Branch
of the business, addressed an electronic mail to
Mr Mays wherein she
requested that he sends his commitments (on sales) by close of
business the following day. On 4 August 2010,
Mr Mays responded by
attaching a list of possible sales for August 2010. In his response,
Mr Mays stated that he can unfortunately
not commit to any of the
figures as they are all just possible sales.
[11]
For the month of August 2010, Mr Mays did
not achieve any sales up and until after the 20
th
of that month. On the latter date, an informal discussion regarding
his performance was held. Present were Mr Mays and Ms Barnes.
[12]
What was discussed at the aforesaid
informal session was recorded by Ms Barnes in an electronic mail
dated 23 August 2013, addressed
to Mr Mays. Therein, Ms Barnes
detailed what was discussed and what she and Mr Mays each submitted
on the issue of the latter’s
poor performance. In her
electronic mail, Ms Barnes closed off by recording that if there was
anything Mr Mays needed, he
must feel free to come and discuss same
with her at any point in time.
[13]
For the month of August 2010, Mr Mays only
attained sales to the amount of R1500.00. This resulted in the
Applicant issuing Mr Mays
with a notice to attend a poor work
performance counselling session to be held on 9 September 2010. The
notice was issued on 07
September 2010. The subject matter for
discussion was Mr Mays’ failure to meet the required sales
target of R10 000.00
per month, for the past 3 months, namely
June, July and August 2010.
[14]
On 9 September 2010, the poor work
performance counselling session was convened. Present were again Mr
Mays and Ms Barnes. The actually
achieved sales for the previous
months were canvassed and Mr Mays made submissions on his poor work
performance and his ability
to perform his duties. Ms Barnes also
made her own submissions.
[15]
Towards the end of the aforesaid formal
poor work performance session, Mr Mays was given the month of
September 2010 as a ‘review
period’ respecting his
performance. Of importance, Mr Mays was placed on final terms
in that it was conveyed to him
by Ms Barnes that should he fail to
meet the required target of R10 000.00 for the month of
September 2010, his services may
be terminated due to poor work
performance.
[16]
The issues discussed at the poor work
performance counselling session of 9 September 2010 were recorded in
a document dated 13 September
2010, which Ms Barnes labelled as a
‘judgment’. Ms Barnes also took contemporaneous
handwritten notes of what was discussed.
[17]
For the month of September 2010, which was
the ‘review period’, Mr Mays only attained sales in the
amounts of R1600.00
(on the Skills and Equity product) and R2420.00
(on the IR product). All in all, Mr Mays archived R4 020.00 as
against the
set monthly sales target of R10 000.00. This
resulted in a poor work performance hearing being convened by the
Applicant.
[18]
The formal poor work performance hearing
was held on 7 October 2010 and it was concluded on 11 October 2010.
[19]
The hearing was chaired by one Mr Frederick
Joubert (“
Mr Joubert
”),
who was the then Divisional Executive of the Applicant and in charge
of
inter alia
the Pretoria branch of the business.
[20]
At the aforesaid hearing, all issued
pertaining to Mr Mays’ poor work performance were deliberated
upon. In the end, Mr Joubert
came to the conclusion that Mr Mays
should be relieved from his duties. Based on this recommendation, the
Applicant terminated
Mr Mays’ services.
[21]
Following his dismissal, Mr Mays lodged an
unfair dismissal dispute with the Second Respondent (hereinafter “
the
CCMA
”), which dispute culminated
in the issuing of the arbitration award under review. I now turn to
the arbitration proceedings
presided over by the Commissioner as well
as the primary basis for the application for review.
The arbitration
proceedings and the review application
[22]
The arbitration hearing over the fairness
of Mr Mays’ dismissal was initially enrolled for 14 March 2011
before the Commissioner.
After the latter refused the Applicant’s
request for legal representation, the arbitration proceedings were
adjourned. The
matter was then re-enrolled for 4 May 2011.
[23]
At arbitration, the Applicant was
represented by Mr Sean Snyman, in his capacity as one of the
directors and shareholder of the
Applicant. Mr Mays represented
himself. The Applicant called only two witnesses to testify on its
behalf, they being Ms Barnes
and Mr Joubert. Mr Mays, on the other
hand, testified in support of his case and did not call any
witnesses.
[24]
Before the Commissioner, documentary
evidence was presented by the parties and this related, in the main,
to the sequence of events
and the performance of Mr Mays as alluded
to in the background facts stated above.
[25]
At the end of arbitration hearing, the
parties were afforded an opportunity to submit written closing
submissions in support of
their respective cases. The arbitration
award under review was, thereafter, issued.
[26]
Being dissatisfied with the award, the
Applicant launched the present motion proceedings wherein it seeks to
set aside the Commissioner’s
arbitration award.
[27]
In the founding affidavit in support of
application for review, the Applicant assails the Commissioner’s
award on various
grounds. One of these grounds advances a case of a
reasonable apprehension of bias on the part of the Commissioner. It
is
also contended that the Commissioner exceeded his powers in
certain respects. It is, furthermore, submitted that the
Commissioner’s
decision, on the merits, is one that no
reasonable decision maker could have reached.
[28]
In view of the fact that the presence of
partiality in arbitration proceedings is capable of vitiating the
entire proceedings and
their outcome, it seems to me that the correct
approach is to deal, at the outset, with the review ground that the
Commissioner
conducted himself in a manner that gave rise to an
apprehension of bias. On this score, the Applicant contends as
follows at paragraph
7.1 of its founding affidavit:
“
From
the outset, it is submitted that the manner in which [the
Commissioner] conducted the arbitration was completely unacceptable,
amounted to misconduct in the conduct of the proceedings, and in fact
indicated bias against the [A]pplicant. This will be apparent
from
the record of the proceedings, once discovered. However, and at this
stage, an example of such misconduct included [the Commissioner]
in
fact cross-examining the [A]pplicant’s witnesses and in
particular confronting Joubert in an aggressive and confrontational
manner. In particular, and what was nothing else other than
confrontational cross-examination of Joubert, [the Commissioner] kept
suggesting to Joubert, who was the author of the minute of 7 October
2010, what he (Joubert) in the view of [the Commissioner]
meant when
he wrote the minute, despite Joubert being adamant that he was the
author of the minute and what he meant in writing
it. The fact is
that [the Commissioner] did not afford the [A]pplicant a fair and
impartial hearing. This is clearly a gross and
reviewable
irregularity and specific legal argument in this regard will be
submitted to the above Honourable Court at the hearing
of this
matter
.”
[29]
Further in the founding affidavit and at
paragraph 7.14 thereof, the Applicant avers the following:
“
From
the above, it is clear that [the Commissioner] in fact went out of
his way to make a finding in favour of [Mr Mays] and justify
the
same, by relying on evidence not in evidence, by relying on evidence
he should not rely on, and excluding crucial evidence.
This is
unacceptable and deprived the [A]pplicant of a fair hearing. In fact,
the conduct of [the Commissioner], and the manner
in which he behaved
towards the [A]pplicant, created a reasonable expectation of bias.”
[30]
Elsewhere
in its founding affidavit,
[3]
the
Applicant contends that the Commissioner failed to comply with the
provisions of the LRA, “…
pertaining
to the conducting of fair and proper arbitration proceedings
...”
[31]
The
Applicant concludes on this particular accusation by contending that
the Commissioner “…
failed
to afford [it] a fair and proper hearing in the circumstances and
failed to properly conduct the arbitration proceedings
in the
circumstances
.”
[4]
What the
transcript reveals
[32]
The Applicant’s indictment on the
conduct of the Commissioner can properly be assessed with reference
to the record of the
arbitration proceedings, especially the
transcript of the said proceedings. In the Applicant’s heads of
argument in support
of the review application, specific references
are made to certain passages from the transcript.
[33]
In assessing the Applicant’s
complaint of partiality, I deemed it appropriate to consider the
entire transcript in context
as opposed to merely referring to
certain passages thereof. What follows below is selected instances of
what I, particularly, noted
from the transcript in relation to the
Commissioner’s conduct. It is worth mentioning that there are
other instances which
would have simply inundated this judgment if I
were to restate them.
[34]
First
, the
Commissioner, in my view, took a rather odd interest in the
Applicant’s business. The Commissioner himself confessed
to the
irrelevancy of his enquiries in this regard. When Ms Barnes, the
Applicant’s first witness, was asked to explain and
also
illustrate something on the Applicant’s IR Product, the
Commissioner abruptly interrupted the examination-in-chief.
This is what the transcript reveals at page 17 thereof:
“
COMMISSIONER
It’s, it’s, it is, it is a
month, it is actually a, wow, let me just, a monthly sales, is it, is
it, is there, what
did they, what was the value of the retainer paid
by the client?
GILLIAN
BARNES
: Um, well it varies, but his
target was R10 000.00 a month
COMMISSIONER
Oh was the, the total value of retainers
GILLIAN
BARNES
: Yes, yes
COMMISSIONER
Oh, okay let me just make a note of that.
RESPONDENT
REPRESENTATIVE
: All right
(Interrupted by the Commissioner)
COMMISSIONER
Let me just, I am just, I am just interested,
interesting to me now, maybe not even relevant here but what kind of
retainers are
you talking about? I mean payment wise?”
[35]
Of importance at this juncture is the
Commissioner’s own remark that the issue he was enquiring about
was not even relevant.
The exclamation in the first sentence of the
above quoted passage is, to me, also telling. The peculiarity about
the Commissioner’s
curiosity will become evident later on in
this judgment.
[36]
Second
,
the Commissioner lashed at the Applicant’s second witness
(being Mr Joubert) in the following unacceptable manner:
“
COMMISSIONER
No wait a minute you know what you must don’t be so tensed up
and in a hurry.”
[5]
[37]
Third
, as
Mr Joubert, the Applicant’s second witness, was presenting his
evidence-in-chief, the Commissioner jumped into the arena
and
commenced with what, to me, amounted to unwarranted and aggressive
cross-examination of the witness. At some points during
this
cross-examination by the Commissioner, Mr Joubert would not even be
given an opportunity to expand on his answers. This particular
cross-examination commences at page 95 of the transcript and proceeds
up to page 101 thereof. During this cross-examination, the
following
selected remarks are made by the Commissioner:
·
“
COMMISSIONER
Ten days is that reasonable?”
[6]
·
“
COMMISSIONER
No let’s just look at the context within which I’m asking
these questions.”
[7]
·
“
COMMISSIONER
Or
hasn’t been put before me as yet but from thereon ten days to
get to 10000 is that reasonable in your opinion?”
[8]
·
“
COMMISSIONER
But
that exactly the point I’m making if he was given if he was
confronted on the 1
st
day of the month.”
[9]
·
“
COMMISSIONER
But
you wait until the 20
th
.
FREDERICK
JOUBERT:
Commissioner you know
I’ve.
COMMISSIONER
That’s
the point I’m trying to make.”
[10]
·
“
COMMISSIONER
Ja I cautioned you that’s not
dispute that’s not dispute but, but, but now you are
(inaudible) is you starting to, to,
to, to, to, to, to um, um, um get
into a position to take formal action to get rid of this employee
right.
FREDERICK
JOUBERT
: Well.
COMMISSIONER
No
that’s what it leads up ultimately now, now, why not at least
give him a full month to say to him look you know what you
run away
with it in the past but in the next month if you don’t get to
R100000 which is your agreed target.”
[11]
·
“
COMMISSIONER
Now I’m asking my questioning
FREDERICK
JOUBERT
: Yes
COMMISSIONER
And I’m giving you and opportunity to explain your reasoning.
FREDERICK
JOUBERT
: Fine
COMMISSIONER
Because you fired the man.”
[12]
·
“
COMMISSIONER
Mr. don’t, don’t dodge me you’ve been a good
witness up to now but you starting to evade now I must warn you.
FREDERICK
JOUBERT
: I.
COMMISSIONER
I’m
not talking about your general management capabilities I’m
talking about this particular individual and your decision
to
terminate his career with your company and you chaired the
hearing.”
[13]
·
“
COMMISSIONER
Okay good well thank you very much for that, that perfect illustrates
the point that I’m trying to make.”
[14]
·
“
COMMISSIONER
Okay but now why did you not take that into consideration when you,
when you fired this man.”
[15]
[38]
Forth
, the
Commissioner bluntly rejected Mr Joubert’s earnest explanation
of what he wrote in his minutes of the poor work performance
hearing
of 7 October 2010. In this regard, the transcript reveals the
following:
·
“
FREDERICK JOUBERT
:
Commissioner I’m referring to the month of September in that
paragraph
COMMISSIONER
How can that be.
FREDERICK
JOUBERT
That’s why I’m
saying it’s a month.
COMMISSIONER
Read
that sentence please.”
[16]
·
“
COMMISSIONER
No there is no type error you know that….”
[17]
·
“
COMMISSIONER
Ja that will take some doing I’ll leave it to your
representative to argue that.”
[18]
·
“
COMMISSIONER
That will take some doing.”
[19]
·
“
COMMISSIONER
A type O a type O doesn’t go that far I’m sorry but let
me just make a note I’ll be with you just now.”
[20]
[39]
Over and above the above passages, there
are other instances of unwarranted remarks and cross-questioning by
the Commissioner. To
me the acme of them all is when the Commissioner
passes the following remarks during the cross-examination of Mr
Joubert:
“
COMMISSIONER
I enjoy playing with you guys because you suppose to be the labour
law experts.
RESPONDENT
REPRESENTATIVE
: Laughing I’m
saying nothing.
COMMISSIONER
Ja
you better look over the other way also.”
[21]
[40]
Whilst Mr Mays was cross-examining the
Applicant’s Mr Joubert, the Commissioner took over this task
and proceeded with a line
of questioning that amounted to no less
than a more robust cross-examination. The Commissioner went on with
this to a point of
patronising the Applicant’s witness. The
transcript, on this score, reveals the following:
“
COMMISSIONER
But you an extra ordinary person.
FREDRICK
JOUBERT
: Commissioner I need there
some of the whole some of the.
COMMISSIONER
You are an extremely brilliant person.
FREDRICK
JOUBERT
: There is some of that
part.
COMMISSIONER
Am I right?
FREDRICK
JOUBERT
: Commissioner there is
some.
COMMISSIONER
You top of the notch do you agree or not?”
[22]
[41]
At
some point, the Commissioner indicated that he was going to switch
off the tape recording for a moment, although it is not clear
from
the transcript if this indeed occurred.
[23]
Over
and above, I reiterate that there are other instances of the
Commissioner conducting himself in a manner that was unwarranted.
He
even allowed an issue of consistency, which was not part of the
agreed issues in dispute, to be canvassed. In this connection,
he lashed at the Applicant’s witness with a question on why Mr
Mays was singled out. The transcript reveals the following:
“
COMMISSIONER
Listen can just answer me was he singled out or.”
[24]
[42]
When Mr Mays was presenting his evidence,
the Commissioner came across as being rather helpful to the detriment
of the Applicant.
At some point, he brought an issue to Mr Mays’
attention as follows:
“
COMMISSIONER
Did you not earlier also said say that you were unemployed and that
you would have accepted any target.”
[25]
[43]
This considerate approach was glaringly
absent in respect to the Applicant’s witnesses, who were met
with a rather hostile
and confrontational attitude by the
Commissioner. The manner in which the Commissioner conducted himself
and, more importantly,
the ultimate outcome he reached in his award
resulted in the Applicant being convinced that he was, somewhat,
bias.
Evaluation
[44]
Under s 145(1) of the LRA, any party to a
dispute who alleges a
defect
in any arbitration proceedings under the auspices of the CCMA is
entitled to apply to this Court for an order setting aside the
arbitration award.
[45]
A
defect
in the arbitration proceedings is defined, under s 145(2)(a) of the
LRA, to mean
inter alia
that the commissioner “…
committed
misconduct in relation to the duties of the commissioner as an
arbitrator
.”
[46]
Where
a commissioner fails to conduct the arbitration proceedings in an
impartial manner or where he deprives a party of a fair
hearing, that
amounts to misconduct in relation to the duties of the commissioner
as contemplated by s 145(2)(a)(i) of the LRA.
[26]
[47]
It
has been held before that an aggressive cross-examination of a
witness by a commissioner can constitute a reviewable
irregularity.
[27]
The
some of the occurrences in the present matter are analogous to those
in
County
Fair Foods (Pty) Ltd v Theron NO & Others
,
[28]
where
the following was observed:
“
[14]
On the basis of the transcript of the proceedings before the first
respondent in this case I am entirely satisfied that the
first
respondent questioned at least two of the applicant's witnesses,
namely Erasmus and Hobden, in a manner which essentially
amounted to
cross-examination. For instance, the first respondent put to Erasmus
propositions of his (the first respondent's) own
making, interrupted
Erasmus's answers, challenged Erasmus on the consistency of his
answers with his previous evidence (when there
was in fact no real
inconsistency), reminded Erasmus that he was under oath (thereby
impliedly indicating that he doubted his credibility),
and made
'submissions' regarding the reasonable construction of his evidence.
On one particular issue where it is certainly arguable
that Erasmus's
evidence was not inconsistent the first respondent engaged vigorously
with Erasmus and in a manner which would
undoubtedly have created the
impression that he was prejudging the case against the interests of
the applicant. On reading certain
passages of the record one would
certainly form the view, without being informed otherwise, that the
first respondent was not in
fact the arbitrator but the
representative of the third respondent.
[15] In regard to
the evidence of Hobden the first respondent similarly engages in an
interchange with him apparently to clarify
an issue but in such a
manner so as to challenge his credibility. The manner of the
questioning is such that it appears to cross
the line between seeking
clarification and challenging the witness's version which is an
unacceptable position for an impartial
arbiter to adopt.”
[48]
In
County Fair
Foods (Pty) Ltd v Theron NO & Others
(
supra
),
this Court went on to conclude as follows:
“
In
all the circumstances I am satisfied that the behaviour of the first
respondent, certainly insofar as the evidence of Erasmus
and Hobden
is concerned, oversteps the boundaries of fair procedure in the
conduct of arbitration proceedings. I am satisfied that
his descent
into the arena gives rise to a reasonable apprehension on the part of
the applicant that he was not impartial.
On the basis of the
authority set out above it is clear that this is a reviewable defect.
If it does not amount to misconduct then
it certainly amounts to a
gross irregularity in the conduct of the proceedings.”
[29]
[49]
The
provisions of s 138(1) of the LRA, which grant a CCMA commissioner to
adopt an inquisitorial approach to the conduct of arbitration
proceedings, are in no way a
carte
blanche
entitling a commissioner to do as he may please in the conduct of
such proceedings.
[30]
[50]
In this matter, I have no hesitation in
coming to the conclusion that the Commissioner committed obvious
misconduct in relation
to his duties as an arbitrator. The passages
quoted herein above directly from the transcript speak for
themselves.
[51]
The Commissioner, without any compunction,
descended into the arena to transparently advocate Mr Mays’
case. This inevitably
sustains the Applicant’s quarrel that it
was denied a fair hearing. All things considered, the Commissioner’s
conduct
does justify the Applicant’s apprehension of bias. On
the facts of this case, I find that such an apprehension is
reasonable
under the circumstances.
[52]
As stated herein before, failure to afford
a party a fair and an impartial hearing would amount to misconduct in
relation to the
duties of a commissioner as an arbitrator within the
meaning of s 145(2)(a)(i) of LRA. Such defect is enough to set aside
an arbitration
award.
[53]
A commissioner’s failure to afford a
party a fair and an impartial hearing has the effect of contaminating
the entire proceedings
and the quality of the evidence presented.
Under such circumstances, the appropriate remedy is the remittal of
the matter back
to the body under whose auspices the proceedings were
held for arbitration
de novo
before a different commissioner.
[54]
In view of the fact that I am upholding the
Applicant’s challenge to the arbitration award on the ground
for review pertaining
to bias, it becomes unnecessary to entertain
the other grounds for review. Perhaps in passing one may mention an
instance where
the Commissioner remarked as follows:
“
COMMISSIONER
Okay can we just stop that now that’s all hearsay evidence I
will disregard all that.”
[31]
[55]
In
this passage, the Commissioner categorically stated that evidence
from Ms Barnes about the content of her discussions with one
employee
of the Applicant was hearsay evidence and he will disregard same. I
must point out that there is no absolute bar to the
admission of
hearsay evidence at arbitration as the Commissioner seeks to suggest
in the passage quoted above.
[32]
The
Commissioner’s ruling in this regard may very well amount to
some gross irregularity in the conduct of the arbitration
proceedings
but I make no finding on this score.
[56]
In this matter, I am satisfied that the
Commissioner’s arbitration award cannot stand. It falls to be
set aside. The arbitration
award itself demonstrates that the
Commissioner’s complete lack of impartiality did not desert him
as its traces can also
be gleaned from his findings and reasoning in
the award he issued. Reference in the award is made to (i) findings
that are described
as ‘astounding and incomprehensible’,
(ii) a witness ‘going through the motions’, (iii) ‘(idle)
promises’,
(iv) ‘smokescreen’, (v) ‘futile
exercise’, etc; all of which expressions and terms are used in
rejecting
the Applicant’s version of events and the evidence
tendered.
[57]
In the circumstances, the Applicant’s
application for the review and setting aside of the Commissioner’s
arbitration
award succeeds. As for costs, I am of the considered view
that no adverse costs order is warranted against the opposing party.
The fault here lies with the Commissioner. Mr Mays was understandably
defending an award that was in his favour. There is,
accordingly, no justification for condemning him in costs. There
shall, therefore, be no order as to costs in this matter.
Order
[58]
In the premises, I make the following
order:
i.
The arbitration award issued by
Commissioner GS Jansen Van Vuuren on 24 May 2011 under case number
GATW13012-10 is reviewed and
set aside.
ii.
The matter is remitted back to the CCMA for
arbitration
de novo
before a different commissioner.
iii.
There is no order as to costs.
VOYI AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant: Mr S Snyman of Snyman Attorneys
On
behalf of the Third Respondent: Advocate F le Roux, instructed by
Francois Le Roux Attorneys
[1]
Act
No. 66 of 1995 as amended (“the LRA”).
[2]
The
award was, according to the Applicant, served on it on 03 June 2011.
[3]
At
para 7.28.1
[4]
At
para 7.28.6
[5]
At
page 92 of the
Transcript
;
lines 1 and 2.
[6]
Transcript
;
page 96, line 2.
[7]
Ibid
,
line 6.
[8]
Ibid
,
lines 19 and 20.
[9]
Ibid
,
lines 23 and 24.
[10]
Transcript
;
page 96, lines 11 to 13.
[11]
Transcript
;
page 97, lines 17 to 23.
[12]
Transcript
;
page 99, lines 10 to 14.
[13]
Transcript
;
page 100, lines 6 to 11.
[14]
Transcript
;
page 102, line 13 and 14.
[15]
Ibid
,
lines 22 and 23.
[16]
Transcript
;
page 105, lines 14 to 18.
[17]
Transcript
;
page 106, line 1.
[18]
Transcript
;
page 107, lines 10 and 11.
[19]
Ibid
,
line 13.
[20]
Ibid
,
lines 18 and 19.
[21]
Transcript
;
page 110, lines 11 and 14.
[22]
Transcript
;
page 114, lines 3 to 9.
[23]
See:
Transcript
;
page 119, lines 19 and 20.
[24]
Transcript
;
page 117, line 5.
[25]
Transcript
;
page 134, lines 12 and 13.
[26]
Raswiswi
v Commission for Conciliation, Mediation & Arbitration &
Others
(2011) 32
ILJ
2186 (LC).
[27]
Chabalala
v Metal & Engineering Industries Bargaining Council & Others
(2014)
35
ILJ
1546 (LC).
[28]
(2000)
21
ILJ
2649 (LC).
[29]
At
para 18.
[30]
See:
County
Fair Foods (Pty) Ltd v Theron NO & Others
(
supra
)
at para’s 7 to 10.
[31]
Transcript
;
page 43, lines 20 and 21.
[32]
See
:
The
Foschini Group v Maidi & Others
(2010) 31
ILJ
1787 (LAC) at para 35;
Public
Servants Association of South Africa v Minister of Department of
Home Affairs & Others
[2013]
3 BLLR 237
(LAC) at para 19.