Automated Summary
Key Facts
The Labour Court reviewed and set aside an arbitration award by the CCMA commissioner, which had found Avril Elizabeth Home's dismissal of Julia Mvumvu (Fourth Respondent) for alleged theft to be unfair. The court held that the commissioner incorrectly applied a strict test of certainty instead of the balance of probabilities standard for misconduct, and also applied an inapplicable criminal justice model of procedural fairness by requiring the chairperson of the disciplinary hearing to be independent of the complainant. The case was referred back to the CCMA for re-hearing.
Issues
- Whether the chairperson's position as a subordinate of the complainant created a valid perception of bias, affecting the procedural fairness of the disciplinary hearing.
- Whether the commissioner applied the correct test of balance of probabilities in determining the existence of misconduct, instead of a stricter standard that required no doubt as to the employee's guilt.
Holdings
- The court found that the commissioner applied an incorrect standard of procedural fairness by invoking the criminal justice model's bias rules, which are not contemplated by the Labour Relations Act or the Code of Good Practice. This resulted in an unjustified perception of bias and contributed to the award's invalidation.
- The court held that the commissioner committed a material error of law by failing to apply the balance of probabilities test to determine the existence of misconduct, instead using a stricter standard requiring no doubt about the employee's guilt. This error rendered the arbitration award reviewable and set aside.
Remedies
- The Labour Court reviewed and set aside the arbitration award made by the Second Respondent.
- The matter was referred back to the CCMA for a re-hearing before another commissioner.
- The Third and Fourth Respondents were ordered to pay the costs of the proceedings.
Legal Principles
- The court held that the commissioner erred in applying a stricter standard than the balance of probabilities to determine misconduct. The correct test under the Labour Relations Act requires assessing whether the employee's guilt is established on a balance of probabilities, not by requiring the absence of doubt or the sole reasonable inference.
- The court reviewed the commissioner's award for material errors of law. It found two such errors: (1) applying the wrong standard of proof for misconduct and (2) imposing procedural fairness requirements not contemplated by the Labour Relations Act or its Code of Good Practice. These errors justified setting aside the award under section 145 of the LRA.
- The commissioner's conclusion about procedural unfairness relied on the criminal justice model's rules regarding bias (subordinate chairperson), which the court found incompatible with the Labour Relations Act's codified procedural fairness standards in Schedule 8. The Act does not require the same formal anti-bias rules as criminal proceedings.
Precedent Name
- NUMSA and others v Bader Bop (Pty) Ltd and another
- Moolman Brothers v Gaylard NO & others
- Foschini Group (Pty) Ltd v CCMA and others
- Mlaba v Masonite (Africa) Ltd and Others
- Hira and Another v Booyson and Another
- Potgietersrus Platinum Ltd v CCMA & others
- MEC: Dept of Finance, Economic Affairs and Tourism, Northern Province v Mahumani
- NEHAWU v University of Cape Town & others
- Markhams (a division of Foschini Retail Group (Pty) Ltd v Matji NO & others
- OK Bazaars (A division of Shoprite Checkers) v Commissioner for Conciliation, Mediation and Arbitration & others
- National Commissioner of SA Police Service v Potterill NO and Others
- Rustenburg Platinum Mines Ltd v CCMA and others
Cited Statute
- Constitution of the Republic of South Africa, 1996
- International Labour Organisation Convention 158
- Labour Relations Act, 66 of 1995
Judge Name
Andre Van Niekerk
Passage Text
- In the present matter, there was no legal basis for the application of the rule against bias that the commissioner applied. In the formulation and application of a rule against bias, the commissioner clearly applied the criminal justice model of procedural fairness, and the standards associated with it.
- While he purported to apply the balance of probabilities test, the commissioner in fact applied a different test, namely as to whether any doubt existed as to the employee's guilt, or whether the only reasonable inference to be drawn was that proffered by the Applicant.
- These shortcomings disclose material errors of law, and the commissioner's award stands to be reviewed and set aside on that basis.