Arbitrator Fails to Allow Oral Evidence, Award Reviewed

2024/10

An employee of a security company failed to respond to a client’s panic signal and was dismissed after a disciplinary hearing. The CCMA ruled the dismissal procedurally unfair and ordered his reinstatement with backpay. Due to gross irregularities in the CCMA hearing, the Labour Court reviewed and set aside this award for a fresh CCMA hearing before a different commissioner.

Bidvest Proteas Coin (Pty) Ltd v PTAWU and Others (JR666/2022) [2023] ZALCJHB 59 (13 March 2023)

Summary

In a case heard before the Labour Court in February 2023, the applicant, a security company, requested that a CCMA award be reviewed. Among the respondents were the former employee, the CCMA and the CCMA commissioner who had awarded the employee with reinstatement and back-pay for unfair dismissal.

The employee was dismissed after a disciplinary hearing, which was conducted after the employee failed to respond to a panic signal from a client. The company charged the employee with dereliction of duty, dishonesty and bringing his employer’s name into disrepute. He was subsequently found guilty of all these charges and dismissed. He then approached the CCMA with the claim that his dismissal had been unfair and the CCMA commissioner agreed with him.

The company referred the case to the Labour Court and raised several grounds for review of this award. They pointed out that the commissioner had placed a heavier burden of proof on the employer in the unfair dismissal case, was unwilling to hear oral evidence, and failed to consider the damage done to the relationship between the recently dismissed employee and the employer who had been required to reinstate him in his position with back-pay.

The review test requires establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner, or arrived at an unreasonable result. One issue before the Court was the form in which the arbitration hearing was conducted.

The role of a CCMA commissioner is to expedite the hearing without unnecessary technicalities or legal intricacies, while at the same time not rushing ahead to complete the hearing in a manner that denies either party the opportunity to have all their evidence considered. Disallowing oral evidence resulted in the arbitrator not having all the evidence needed to make a reasonable decision regarding the procedural fairness of the dismissal.

The arbitrator was led by this resulting lack of evidence to assert that there was no investigation into the misconduct, that there was no explanation of the charges, and that no disciplinary hearing had been convened – which he would have known was incorrect if he had allowed oral evidence from the ex-employer and their representative.

The Labour Court decided that the case needed to be reviewed, purely on the basis that during the arbitration, the parties were not able to fairly present their evidence.

The award was reviewed and set aside, and the case referred back to the CCMA for a fresh hearing before a different commissioner. No order was made as to costs.

This article does not constitute legal advice. For an informed opinion and/or assistance with a labour-related matter, you are encouraged to arrange a formal consultation with the author.

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