K v CCMA (Absa Bank) (JR 2475 / 2010) [2015] ZALCJHB 45 [2015] JOL 32888 (LC) (20 February 2015)

LC summary:

CCMA arbitration proceedings – review of proceedings, decisions and awards of arbitrators – test for review – section 145 of LRA – requires the arbitrator to rationally and reasonably consider the evidence as a whole and arrive at reasonable outcome – determinations of arbitrator compared with evidence on record – arbitrator’s decision not irregular and constitutes a reasonable outcome – award upheld.  Evidence – consideration of contradictions – principles stated – consequences to credibility.  Misconduct – sexual harassment committed by employee – probabilities support conclusion of such misconduct.

Arbitration proceedings – allegations of misconduct and bias on the part of the arbitrator – provisions of section 138 considered – conduct of arbitrator proper – no misconduct or bias shown.  Practice and procedure – conclusion of arbitrator on substance sustainable – award upheld – review application dismissed.

Heard:  16 October 2014   Delivered:       20 February 2015

Sean Snyman AJ

Introduction

“[1] This matter concerns an application by the applicant to review and set aside an arbitration award of the second respondent in his capacity as a commissioner of the CCMA (the first respondent). This application has been brought in terms of Section 145 of the Labour Relations Act (‘the LRA’).

[2] The applicant was dismissed by the third respondent for misconduct relating to sexual harassment. The applicant then pursued his dismissal as an unfair dismissal dispute to the first respondent. The matter came before the second respondent for arbitration on 18 August 2010, and in an award dated 26 August 2010, the second respondent determined that the dismissal of the applicant was substantively fair and dismissed his dispute referral to the first respondent.

The applicant was dissatisfied with this finding of substantive fairness by the second respondent and brought the current review application to the Labour Court on 29 September 2010.”