In the case of NUM OBO MPETE AND OTHERS V MATYOLO AND ANOTHER (JR 755/2019) [2023] ZALCJHB 62 (14 MARCH 2023) the employees were dismissed in December 2017 for participating in an unprotected strike. The employees referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The dispute remained unresolved after conciliation, and a certificate of outcome was issued.

The parties elected to avoid the Labour Court (LC) route and they agreed to a private arbitration process. The issue to be decided was directly linked to the question of whether the employees were involved in an unprotected or illegal strike or protest and if so, whether their dismissal was fair.

On 3 March 2019, the arbitrator issued an award wherein he found that the dismissal of the employees was procedurally and substantively fair. The arbitration award was the subject of review.

However, by agreeing to refer their dispute to private arbitration, the parties limited interference by the LC to the grounds of procedural irregularities as set out in section 33(1) of the Arbitration Act. The consequence of agreeing to refer the matter to private arbitration was that the parties waived the right to rely on any further ground of review be it ‘common law’ or otherwise. The grounds of review as set out in section 33(1) of the Arbitration Act could only be extended by agreement between the parties.

The employees raised two main grounds for review. They stated that the arbitrator exceeded his powers when he assumed powers that he did not have when he found that the employees were on strike.

In considering the issue of whether the employees were involved in the unprotected or illegal strike and making findings on this aspect, the LC found that the arbitrator had decided an issue he had been mandated by the parties to decide. As a result, the arbitrator did not exceed his powers and there was no merit in this ground for review.

The other main complaint in this application was that the arbitrator committed misconduct in the exercise of his powers.

The employees’ case was that the arbitrator committed misconduct by finding that there was a strike without establishing if all the elements of a strike were proven, he ignored evidence and found the employees guilty of misconduct when there was no evidence to support such a finding.

The LC concluded that it was evident from the arbitration award that the arbitrator recorded the issues he was required to decide, that he provided a summary of the evidence presented by the parties and their witnesses, that he analysed the evidence and found that the employees made themselves guilty of the allegations leveled against them and he considered the fairness of the dismissal of the employees by reference to Item 6 of Schedule 8: the Code of Good Practice: Dismissal.

The review application was dismissed. There was no order as to costs.

Jonathan Goldberg