In refusing the employer’s application for leave to appeal against the earlier judgment [2016 ILJ 1230] the LC mentioned that a finding was made that an error of law was committed in awarding compensation instead of the primary remedy of reinstatement.

‘As such, it is also (my underlining) a decision that a reasonable arbitrator could not have reached.  I therefore did not apply a reasonableness test to the exercise of a discretion by the Commissioner.  I rather found that in law, he was simply not entitled to exercise a discretion to award compensation, based on the Applicant’s conduct during the arbitration proceedings’.

S v Xstrata Coal SA (JR2189/13) [2016] ZALCJHB 300 (4 May 2016) per S Hardie AJ.

Note: Upheld on appeal by the Labour Appeal Court.