Labour Court Main Division

Labour Act, 2007 – Labour law – Appeal against an award of arbitrator – Appeal in terms of section 89 (1)(a) of Act 11 of 2007 – Whether dismissal was substantively unfair – Appeal upheld.

Labour law – Appeal against arbitration award – Test for breaching a suspension condition, and that of bringing the company’s name into disrepute – Rule 20 of the Labour Court Rules – Insubordination – Substantive fairness – Fiduciary duty owed to the employer.

Statute – Interpretation – Word ‘days’ in s 89(2) Labour Act 11 of 2007 and Conciliation and Arbitration r 23(2) not defined therein – Section 4 Interpretation of Laws Proclamation 37 of 1920 applies.

Statute – Interpretation – Section  89(2) Labour Act 11 of 2007 – Award being served – Service of award and word ‘serve’ not defined in Act – Section 129 of the Act – Service of documents – Section 129(2) of the Act does not apply to service of award – Conciliation and Arbitration r 21(1) read with r 1(1) and 6 apply – Arbitrator must serve award on parties under Conciliation and Arbitration r 6 – Conciliation and Arbitration r 6(3)(a) – Service on company – Irregular service of ruling on applicant company by email – Not a complete failure of service – Substantial compliance with rule – In this instance interpretation of word ‘must’ therein directory and permissive requiring substantial compliance with rule – Appeal noted timeously.

Practice – Labour Court r 17(1) – Different types of appeal – Labour Court r 17(1)(c) – Appeal against arbitration tribunal award – Labour Court r 17(3) applies together with Conciliation and Arbitration r 23 – Labour Court r 17(2) does not apply – Labour Court r 17(3) does not require grounds of appeal to be set out in Form 11 for appeal against award – Labour Court r 17(2) requiring grounds of appeal in Form 11 for other types of appeal distinguished – applicant’s Form 11 not defective.

Condonation – Late prosecution and reinstatement of appeal – Labour Court r 15 – Must show good cause – Two requirements restated – Principles and factors restated – Balancing exercise.

Rescission application – s 88(a) Labour Act 11 of 2007 – principles of High Court r 103(1)(a) apply to s 88(1) – an applicant need not show good cause – such judgment or order should be rescinded without further enquiry – court entitled to have regard not only to record of proceedings of court concerned but also facts set out in affidavit – order granted erroneously where no proper service.

Labour Law – Arbitral award – Application to review and set aside the award in terms of s 89(4) and (5) and (10) of the Labour Act 11 of 2007 – The Labour Act provides grounds for review which the applicant must prove in order to succeed. Grounds of review which are not set out in the notice of motion are not available to applicant during the hearing – Recusal applications must be brought before the specific adjudicator and not third parties – Waiver of the right to cross-examine a witness.

Labour Law – Arbitration award – Section 89(1)(a) of the Labour Act 11 of 2007 – A party to a dispute may appeal to the Labour Court against an arbitrator’s award made under s 86 on inter alia any question of law alone.

Labour Law – Arbitration Award – Award for monetary compensation – Calculation of – Whether evidence was led to enable the arbitrator to make a monetary compensation award.

Labour Law – Arbitration Award – Appeal to Labour Court – Interference by this court can only take place where no reasonable court could have come to the conclusion that the arbitrator has come to or no evidence was led – Compensation award for lost salary made in the absence of evidence, and in the absence of agreement between the parties on the monthly income – Award perversely made, and a valid question of law is to be determined on appeal.

Labour Law – Appeal from arbitrator’s award based on generic grounds of appeal.