Steenkamp J in Mashego v Cellier NO (SAA) (JR2721/13) [2015] ZALCJHB 415 (26 November 2015) at paras [1] and [2].
This case should never have served before the Labour Court. The fact that it was escalated to this level goes against the grain of the spirit, purpose and object of the Labour Relations Act 66 of 1995. The applicant was dismissed for misconduct. He wants that dispute arbitrated in the way that the LRA envisaged – in a simple, cheap and quick manner. But two and a half years and thousands of Rands of legal fees later, he is nowhere close to achieving that goal.
The reason for this unsatisfactory state of affairs is, in a nutshell, that his trade union representative suggested in an initial arbitration that he was dismissed because of his trade union membership. The employee has since made it clear that that is not his cause of action. He accepts that he was dismissed for misconduct – the reason given by his employer, SAA. But because of that remark, the commissioner hearing the arbitration decided that the CCMA did not have jurisdiction. He struck it from the roll. When the employee tried to re-enrol the unfair dismissal dispute for arbitration, the commissioner ruled that it was res judicata. The employee – now having had to obtain legal representation – applied to have that ruling reviewed and set aside.