Arbitrator Irregularities – Award Reviewed

2024/10

A CCMA arbitrator issued an award of unfair dismissal without correctly assessing the situation. He allowed unacceptable evidence and intervened in an inappropriate way during the hearing. The Labour Court reviewed the award and it was set aside.

South African National Blood Service v NEHAWU obo Mathobisa and Others (JR 654/2021) [2023] ZALCJHB 58 (16 March 2023)

Summary

The applicant, the South African National Blood Service, sought to review and set aside an arbitration award that was issued by a CCMA arbitrator in March 2021. In his award, the arbitrator found that the first respondent, an employee, had been unfairly dismissed and that she should be reinstated with retrospective effect.

The employee was dismissed on 11 August 2020 after a disciplinary hearing when she was found to have committed an act of gross negligence. The arbitrator’s award was based on his view that the dismissal was too harsh and inconsistent with the disciplinary code of the respondent and, therefore, substantively unfair.

The incident, which resulted in the employee’s dismissal, involved her stacking a lab crate in an area designated for other things, and this resulted in the refrigerator accidentally being switched off. Products in the fridge went out of temperature control and the organisation suffered losses.

Other employees had received written warnings for not responding to mobile messages requesting that they check the temperature of the fridge.

The applicant in this case raised several grounds for review, including that the arbitrator failed to consider the consistency of the employee’s dismissal with the treatment of other employees involved in similar incidents, the arbitrator committed a material error of law, the arbitrator ignored material evidence, and the arbitrator ignored the employee’s own evidence.

In the award, the commissioner held as follows:

“I have considered the submissions and arguments of both parties in arriving at my decision. It is my view that the dismissal of the applicant was too harsh and inconsistent with the disciplinary code of the respondent. The submission of the chairperson of the hearing, i.e., that the disciplinary code of the respondent is just a guideline is unacceptable considering that she has used the same discipline required to correct the issue final warnings to the colleagues of the applicant. The chairperson in contradicting her and outcome of the hearing submitted that she dismissed the applicant because she did not show remorse which was very untrue and misleading to the commission. I therefore find, dismissal was substantive really unfair because while the applicant had caused the switch to trip and the fridge to lose its temperature the respondent should have treated the applicant the same as her colleagues who were given a final written warning for the same or worse charges as the applicant. In terms of the Labour Relations Act and Code of good practice, the respondent has the right to dismiss the employees however the employees have a right not to be unfairly dismissed. In this case, it is my view that the respondent does apply discipline wrongly and unfairly by targeting the applicant.

In the light of the above, I have found that the dismissal of the applicant on the balance of probabilities to be substantively unfair.”

The disciplinary code indeed provided for a penalty of a final written warning for acts of gross negligence, but the arbitrator’s rigid and inflexible application of the code was inconsistent with its nature, the Court held. The issue of inconsistency and the evidence presented at the arbitration hearing, which shows that the charges brought against the applicant were different from those brought against her colleagues, tended to substantiate the request for review.

The Court also found that the arbitrator had committed gross irregularities by relying on evidence that was introduced unfairly and by intervening inappropriately during the hearing.

The Court concluded that the dismissal was substantively fair and set aside the arbitration award.

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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