Automated Summary
Key Facts
The National Union of Mineworkers and Phillip Maraba (applicants) sought review of an arbitration award dismissing Maraba's claim against Draset. Maraba was employed by Draset as a bracket assembler from May 1999 and was suspended on 17 February 2010. He was dismissed after a disciplinary enquiry on 23 February 2010, charged with refusal to obey a reasonable instruction and gross insubordination. The applicants argued the dismissal was procedurally unfair due to lack of union consultation, duplicated charges, and unreasonable instructions. The arbitrator failed to address these issues, leading the court to set aside the award and refer the matter back for a new arbitration.
Issues
- The applicant argued that the disciplinary hearing was procedurally unfair because the union was not consulted and he was not allowed to be represented by a union official, as required by the company's disciplinary code.
- The applicant challenged the validity of the dismissal, asserting that the instruction to call the shop steward was not work-related and thus could not justify termination.
- The applicant contended that the charges of refusal to obey a reasonable instruction and gross insubordination were duplicated, as they essentially described the same misconduct.
- The applicant alleged the chairman of the disciplinary enquiry was biased, which undermined the fairness of the process and the arbitrator's ability to impartially assess the case.
- The applicant pointed out that the disciplinary code did not contain a rule supporting the charges against him, indicating procedural non-compliance by the employer.
- The applicant maintained that the instruction to call the shop steward was not work-related and therefore unreasonable, which could not support a finding of insubordination.
Holdings
- The court found that the second respondent (arbitrator) committed reviewable irregularities by failing to address key issues, including the legitimacy of the instruction given to the applicant, the duplication of charges, and the procedural fairness of the dismissal. The award was set aside due to the arbitrator's failure to consider the applicant's evidence and the disciplinary code.
- The matter was referred back to the Commission for a de novo arbitration before a different commissioner, as the original award was deemed reviewable and required reconsideration with proper legal analysis.
Remedies
- The court reviewed and set aside the arbitration award under case number GAJB 8719/10.
- The matter is referred back to the first respondent for arbitration de novo before a Commissioner other than the second respondent.
Legal Principles
The court held that the arbitration award was reviewable because the arbitrator failed to address key issues raised by the applicant, including the duplication of charges and the procedural fairness of the disciplinary process. The award was set aside and referred back for a new hearing, as the arbitrator unjustifiably relied on the employer's submissions without considering the applicant's defences or the disciplinary code.
Judge Name
D H Gush
Passage Text
- [18] Considering the second respondent's award, apart from its brevity, there are a number of concerns which manifest themselves. These are: (a) Firstly and most importantly the second respondent appears to justify the dismissal of the applicant's application on the spurious grounds that the applicant had not 'challenge[d] the company version'. There can be no doubt from the record that the applicant's version was at all times patently clear to all parties to the arbitration.
- [18] ... (b) Secondly, as regards the second respondent's somewhat pejorative reference to the applicant's 'brief testimony' there could be no doubt, regard being had to the record, as to the nature and basis of the applicant's challenge to the fairness of his dismissal.
- [19] ... the second respondent to have unjustifiably relied upon and accepted the third respondent's submission that the applicant had not challenged the third respondent's evidence. In so doing the second respondent and failed to consider or deal with those issues which on the third respondent's own submissions he was required to.