The Labour Court reviewed and set aside a CCMA arbitration award after finding that the Commissioner committed a gross irregularity during the arbitration proceedings. Despite this, the Court substituted the award with a finding that the employee’s dismissal was both procedurally and substantively fair, concluding that remitting the matter to the CCMA would serve no purpose because the dismissal was lawful.
In SONY ARISTOS MUYULENU V GLOBAL TELESALES (PTY) LTD [2025] ZALCCT (C342/2024) the employee had been employed by Global Telesales (Pty) Ltd since August 2009.
He was a citizen of the Democratic Republic of Congo who had been granted refugee status in South Africa. His refugee status expired on 5 July 2023, leaving him without legal authorisation to work in the country.
The employer convened an incapacity hearing and dismissed him on 25 July 2023 because it could no longer lawfully employ him.
The dismissal letter advised that he would be free to apply for any available vacancies once he obtained documentation authorising him to work in South Africa.
The employee referred an unfair dismissal dispute to the CCMA. The Commissioner found that the dismissal was procedurally and substantively fair.
Dissatisfied with the outcome, the employee approached the Labour Court to review and set aside the arbitration award.
The Labour Court first considered whether the Commissioner had reached a decision that no reasonable arbitrator could have made.
It held that the employee’s continued employment would have been unlawful under section 38(1) of the Immigration Act because he no longer possessed a valid immigration status permitting employment.
As a result, the Commissioner had correctly found that the dismissal was substantively fair.
However, the Court found that the manner in which the Commissioner conducted the arbitration was unacceptable.
The Commissioner repeatedly interrupted the self-represented employee, curtailed his cross-examination, argued with him, made inappropriate remarks about his language skills and immigration status, and generally failed to ensure that he received a fair hearing.
The Court held that this conduct amounted to a patent gross irregularity in the conduct of the arbitration proceedings.
Ordinarily, such a finding would result in the matter being remitted to the CCMA for a fresh hearing.
The Court declined to do so because the undisputed facts established that the employer could not legally continue employing the applicant once his refugee status had expired.
A further arbitration could therefore only produce the same result and would unnecessarily prolong the dispute.
The Labour Court replaced the arbitration award with one declaring the dismissal both procedurally and substantively fair. No order as to costs was made.
>creditparsans<In this weekly column, labour lawyer Jonathan Goldberg, chair of Global Business Solutions, looks at various aspects of labour law
