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[2025] ZALCCT 30
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Nombewu v Commission for Conciliation, Mediation and Arbitration and Others (C564/2022) [2025] ZALCCT 30 (15 May 2025)
FLYNOTES:
LABOUR
– CCMA –
Legal
representation –
Applicant
had been employed on succession of three-month contracts –
Arbitrator seized with determining if applicant
was dismissed –
Arbitrator had no power to exclude applicant’s attorney from
proceedings – Arbitrator failed
to provide applicant with
even barest minimum assistance – Helping hand principle to
ensure that issues in dispute
are properly ventilated –
Applicant denied a fair hearing – Award reviewed and set
aside.
THE LABOUR COURT OF
SOUTH AFRICA
AT CAPE TOWN
Of interest to other
judges
case
no: C 564/2022
In
the matter between:
MALIBONGWE
NOMBEWU
Applicant
and
COMMISSION FOR
CONCILIATION,
First Respondent
MEDIATION AND
ARBITRATION
ALLIE RYKLIEF
N.O Second
Respondent
PIONEER FOODS (PTY)
LTD
Third Respondent
Heard
:
30
April 2025
Delivered
: 15
May 2025
Summary:
(Review
– Arbitrator excluding legal representation in arbitration
proceedings to determine whether a dismissal took place
–
Arbitrator also not offering the slightest assistance to the employee
– Employee denied a fair hearing – award
set aside and
matter remitted)
JUDGMENT
LAGRANGE, J
Nature
of the application
[1]
This is an opposed review application. The applicant, Mr M Nombewu
(‘Nombewu’) seeks to set aside a jurisdictional
ruling by
the second respondent (‘the arbitrator’), who found that
he had not been dismissed by his employer, the third
respondent
(‘Pioneer’).
[2]
Apart from the review application, there was also an application to
condone the late filing of the review, which was seven
days late.
The condonation
application
[3]
Although the condonation application was formally opposed, Pioneer
did not attempt to persuade the court during argument
that
condonation ought not to be granted. There being no demonstrable
prejudice to Pioneer from what was a very short delay and
given that
it has prospects of success I see no reason to refuse condonation.
The review application
Factual background
[4]
Nombewu had been employed by Pioneer, a temporary employment service
business on a succession of three month contracts
from 1 November
2019 to 31 January 2022. None of the contacts suggested that they
would be automatically renewed when they expired.
The termination of
the contract occurred either at the end of the three month period or
terminate on “
the task/project reason for contract”
,
whichever occurred first. The operative clause 2.1 is badly
worded, but it seems the intention was that if the work in which
the
employee was engaged came to an end, then the contract would
terminate then.
[5]
According to Pioneer, Nombewu’s contract was not renewed on
account of the job he was doing coming to an end.
Nombewu
believed he was going to be made permanent as conveyed to him by a
manager and some of his colleagues had recently been
permanently
employed in October 2021. Pioneer advised him to seek alternative
employment at Adcorp Blue, another temporary employment
service, but
he did not pursue that option.
[6]
At the arbitration hearing, Nombewu was represented by his attorney,
but the arbitrator refused to entertain an application
for legal
representation. Pioneer was represented by Pioneer does not deny that
the arbitrator refused to entertain an application
for legal
representation being made, but argues that because a formal
application was not actually made for legal representation
there is
nothing before the court to consider on review relating to the issue
of legal representation. Pioneer was represented
at the hearing by an
HR manager of the company who admitted to ‘attending’
previous CCMA arbitrations but denied she
was any better equipped to
handle the issues than Nombewu.
The merits of the review
application
[7]
Nombewu raised four grounds of review. It is only necessary to
consider two of them.
[8]
Nombewu argues that the arbitrator’s failure to allow legal
representation is reviewable, because an employee is
not barred from
having legal representation where the issue in dispute is whether a
dismissal has taken place. On this line of
reasoning, it was not even
necessary for an application for legal representation to be made.
Moreover, Nombewu was prejudiced by
being denied legal
representation.
[9]
The second ground of review under consideration is that the
arbitrator failed to assist the applicant in presenting his
case, in
circumstances where he should have which also deprived him of a fair
hearing.
[10]
Apart from arguing that there was no formal written application for
the arbitrator to consider, Pioneer contends that
it was a simple
issue to determine whether Nombewu was dismissed or his employment
ended by mutual agreement, when his last three
month contract
expired.
[11]
Essentially, what was
before the arbitrator, was to determine the basis on which Nombewu
believed the termination of his service
amounted to a dismissal,
whether it was because he was contending there was other work because
new persons were hired a couple
of months before he was dismissed and
that there was no reason not to renew his contract or, alternatively
that he had been promised
permanent employment. The arbitrator did
not make the slightest effort to assist Nombewu in clarifying which
parts of the definition
of dismissal under s the nature of his claim
under s 186(1)(b) of the Labour Relations Act, 66 of 1995 (‘the
LRA’)
he was relying on, if indeed he was even aware of that
provision. When he was given an opportunity to make closing
submissions,
Nombewu simply said he wanted his job back. The
arbitrator did not explain to him that he must motivate why he was
dismissed based
on the evidence presented, and not merely repeat the
relief he wanted. He did not even ask him if he wished to respond to
the employer’s
closing submissions. One is left with the
overall impression that the arbitrator was in somewhat of a rush to
conclude the hearing.
An important aspect of the ‘helping hand’
principle, to ensure that the issues in dispute are properly
ventilated
[1]
. I am satisfied
that the arbitrator failed to provide Nombewu even the barest minimum
assistance he should have. Nombewu’s
legal
representative, would have been able to present his case in a more
coherent way and deal with the evidence more thoroughly
than Nombewu
was capable of.
[12]
As to the failure to permit legal representation, the arbitrator was
seized with determining if Nombewu was dismissed.
He had no reason to
assume he was seized with a matter concerning dismissal for
misconduct or incapacity. Only in such disputes
is the right to legal
representation normally not allowed under CCMA Rule 25(1)(c), subject
to exceptions. Accordingly, the arbitrator
had no power to exclude
Nombewu’s attorney from the proceedings.
[13]
On the basis of what is set out above, I am satisfied that the
arbitrator’s conduct in excluding Nombewu’s
attorney from
the proceedings and then not giving Nombewu the basic assistance
required to ensure the proper ventilation of the
issues, Nombewu was
denied a fair hearing. Quite apart from that it, he exceeded
his powers in excluding Nombewu’s
attorney. Accordingly,
there are very good reasons for setting the award aside.
[14]
Pioneer urged the court not to remit the matter if the award was set
aside. It was argued that all the evidence the court
needed was in
the record. I disagree. Because the arbitrator failed to ensure that
the issues in Nombewu’s case were properly
ventilated, the
court cannot be confident that all the relevant evidence that could
have been led was led and all the relevant
questions that could have
been posed by his attorney were asked. For the court to decide the
matter on the record, would simply
compound the prejudice Nombewu
already suffered.
[15]
Mindful of the fact that the court might be compelled to remit the
case, the parties were urged to make an effort to
settle the matter
before judgment was handed down and were granted a few days to
explore a settlement. Regrettably, notwithstanding
the legal
expertise at the parties disposal, they evidently did not settle the
matter, and the dispute must be prolonged.
Order
1.
The late filing of the Applicant’s review
application is condoned.
2.
The arbitration award of the Second Respondent
dated 27 September 2022 issued under case number WECT 3948-22 is
reviewed and set
aside.
3. The Applicant’s
unfair dismissal dispute is remitted back to the First Respondent for
a hearing
de novo
before a commissioner other than the Second
Respondent, at which the parties may be represented by legal
practitioners.
4.
The
de novo
hearing
must be set down for hearing within 45 calendar days of this order.
5.
No order is made as to costs.
R Lagrange
Judge
of the Labour Court of South Africa
.
Appearances:
For the Applicant:
Z Parker from Parker Attorneys
For the Respondent:
J Whyte from Norton Rose Fulbright South Africa Inc.
[1]
See
Nkomati
Joint Venture v Commission for Conciliation, Mediation &
Arbitration & others
(2019)
40
ILJ
819
(LAC), viz:
“
[18]
… The purpose of the helping hand principle is to prevent a
procedural defect by ensuring that there is a full ventilation
of
the dispute and a fair trial of the issues. A commissioner commits a
reviewable irregularity not only when the outcome of
an award is
unreasonable but also where the nature of the enquiry has been
misconceived, which may happen when the issues are
not ventilated by
proper lines of enquiry.”