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[2015] ZALCCT 55
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Mayisela v Commission for Conciliation Mediation And Arbitration and Others (C967/2014) [2015] ZALCCT 55 (5 August 2015)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
Reportable
Case
Number C967/2014
In
the matter between:
VINCENT
NKULULEKO
MAYISELA
Applicant
and
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND
ARBITRATION
First Respondent
THEODORUS
POTGIETER
Second Respondent
LEGAL
AID SOUTH
AFRICA
Third Respondent
Date
heard: 19 March 2015
Delivered:
5 August 2015
JUDGMENT
RABKIN-NAICKER
J
[1]
This is an opposed application to review an arbitration award under
case number NC1084-14, which was handed down on the 8 October
2014.
In terms of the award the dismissal of the applicant was found to be
both procedurally and substantively fair.
[2]
The applicant was employed by the third respondent (the Legal Aid
Board) as its Justice Centre Executive at the time of his
dismissal.
The second respondent (the Commissioner) summarises the main charges
against him in paragraph 12 of the Award of as
follows:
“
a)
gross insubordination, b) gross insolence; c)attack on the honour
dignity or good name of the ROE; d)threats and intimidation
made via
e-mail to the ROE; e) disruption of employer’s operations and
activities; f) conduct resulting in or potentially
damaging to the
reputation of Legal Aid SA and/or bringing the name of Legal Aid SA
into disrepute; g) irregular absence from office
without proper
leave, permission/notification; and h) transgression of the rules,
regulations, policies and procedures of Legal
Aid SA.”
[3]
The Commissioner records the following at paragraph 16 of his Award:
“
It
is not necessary for me to summarize the evidence tendered by the
parties as the evidence tendered is also captured in the documentary
evidence contained in the bundles in the form of e-mails, notices and
minutes of meetings regarding re-instating Mr Hole at the
Regional
Court, which were read into the record and the respective witnesses
examined on.”
[4]
This abrogation of his duties as a Commissioner is made even more
extraordinary if regard is had to the fact that there is a
transcript
of the oral evidence at arbitration which is well in excess of a
thousand pages. The Commissioner has disregarded the
relevant
guidelines issued by the CCMA for misconduct arbitrations which duly
include the need to summarise and analyse the oral
and documentary
evidence
[1]
.
The result of this failure by the Commissioner is that the court
cannot begin to properly perform its duties as a reviewing court.
[5]
In a review application under section 145 of the LRA, the court must
ask the following questions: (1) In terms of his or her
duty to deal
with the matter with the minimum of legal formalities, did the
process employed by the commissioner give the parties
a full
opportunity to have their say? (2) Did the commissioner identify the
dispute he or she was required to arbitrate? (3) Did
the commissioner
understand the nature of the dispute he or she was required to
arbitrate? (4) Did the commissioner deal with the
substantial merits
of the dispute? (5) Is the commissioner's decision one that another
decision maker could reasonably have arrived
at based on the
evidence?
[2]
[6]
However, with no summary of the evidence and no analysis of the
evidence based on same contained in the award, a reviewing court
simply cannot answer the questions listed by the Labour Appeal Court
above. Much of the grounds of review in this matter deal with
the
Commissioner’s alleged failure to apply his mind to the
evidence before him. In these circumstances however, the court
cannot
assess if there have been errors of fact made by him and if so
whether these led to an unreasonable result.
[3]
[7]
Unfortunately for the parties, I have no alternative but to remit
this matter to be heard anew. To do otherwise would be to
blur the
critical distinction between an appeal and a review and
in effect
decide the matter on the merits
de novo
on the basis of the
record before me. The parties have put much time, effort and
resources into presenting their cases before the
court and I regret
that the matter could not be dealt with in the normal way.
[8] I therefore make the following
order:
1.
The award under case number NC1084-14 is hereby reviewed and set
aside.
2.
The dispute is remitted to first respondent to be heard by a
commissioner other than second respondent.
3.
The Registrar is directed to forward this judgment for the attention
of the Senior Convening Commissioner of the CCMA, Northern
Cape.
4.
There is no order as to costs.
________________________
H. Rabkin-Naicker
Judge of the Labour
Court
Appearances
:
For
the Applicant: In person
For
the Third Respondent: Advocate Suzanna Harvey instructed by
Legal Aid South Africa
[1]
23
GN 602 of GG 34573 of 2 September 2011.
[2]
Gold Fields
Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation,
Mediation & Arbitration & others (2014)
35 ILJ 943 (LAC) at
paragraph 20.
[3]
see
Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus
Curiae) (2013) 34 ILJ 2795 (SCA) at paragraph 25