- October 20, 2022
- |Concise Law Reports (CLR), Labour Law
LABOUR LAW – SETTING ASIDE OF ARBITRATION AWARD AND REFERRING MATTER BACK FOR DE NOVO ARBITRATION HEARING
The appellant appealed against an arbitration award made on 14 March 2022 in terms of which the arbitrator upheld a point in limine that the appellant waived his right to be heard by not attending his disciplinary hearing and holding that the appellant’s dismissal was ‘not in violation of the law’, whereas no evidence was led.
At the hearing in the Labour Court, both parties agreed, but for different reasons, that the matter should be referred back to the Labour Commissioner. The bone of contention was what should be made of the fact that the appellant did not attend his disciplinary hearing, as the process went on in his absence and he was dismissed.
COLEMAN J dealt with the appeal and stated that:
[3] It is not advisable for a party subjected to disciplinary proceedings to simply not attend because he/she objects to an aspect of the proceedings. The best approach is to attend and raise the issues there. However, the arbitrator in this matter elected to hear the point in limine based on appellant’s election not to attend without any evidentiary base and to make findings on the merits of appellant’s dismissal. In my view that is a misdirection. The point in limine should have been treated like a special plea in a civil action and be adjudicated in the context of the bigger picture of the matter with an evidentiary basis. I do not make any finding on the merits of the arbitrator’s decision because I do not want to fetter the discretion of the new arbitrator.
As a result, the arbitrator’s award was set aside in its entirety and the matter was referred back to the Labour Commissioner for a de novo arbitration hearing before another arbitrator.
Awene v Business and Intellectual Property Authority NALCMD 61 20 October 2022