Summary: The employer, a construction entity and its managing director, charged the employee with poor work performance; gross negligence; disobeying and refusing of official instructions; and dishonesty He was subjected to a disciplinary hearing He was – – found guilty except for the charge of dishonesty The chairperson recommended – dismissal which was accepted by the employers. He filed a complaint with the Office of the Labour Commissioner. At the arbitration hearing, the chairperson of the internal disciplinary hearing testified on behalf of the employers. The arbitrator concluded that the dismissal of the employee was both substantive and procedural unfair. The employers as appellants appealed against the for an order that the arbitrator’s award award was set aside. The grounds of appeal were inter alia that the arbitrator made perverse findings to which no reasonable arbitrator, considering the same facts would have arrived. The court dismissed the appeal and upheld the findings. arbitrator’s The court held, with regard to substantive fairness, that the evidence of the chairperson of the internal disciplinary hearing constituted in admissible hearsay evidence. Court held further with regard to procedural fairness, that the employee was given only – to prepare for the disciplinary hearing, which was insufficient and thus two days’ notice amounted to procedurally unfairness. Held further That the ostensible independent chairperson, have had previous – connections with the employer as a of the employer in labour matters; ‘representative’ that a result such relationship induced an apprehension of bias in the mind of a reasonable person. Furthermore, it was irregular for the chairperson of the internal disciplinary hearing to testify at the arbitration hearing, against one of the parties who had
Summary: The employer, a construction entity and its managing director, charged the employee with poor work performance; gross negligence; disobeying and refusing of official instructions; and dishonesty – He was subjected to a disciplinary hearing – He was found guilty except for the charge of dishonesty – The chairperson recommended dismissal which was accepted by the employers. He filed a complaint with the Office of the Labour Commissioner. At the arbitration hearing, the chairperson of the internal disciplinary hearing testified on behalf of the employers. The arbitrator concluded that the dismissal of the employee was both substantive and procedural unfair. The employers as appellants appealed against the arbitrator’s award for an order that the award was set aside. The grounds of appeal were inter alia that the arbitrator made perverse findings to which no reasonable arbitrator, considering the same facts would have arrived. The court dismissed the appeal and upheld the arbitrator’s findings. The court held, with regard to substantive fairness, that the evidence of the chairperson of the internal disciplinary hearing constituted in admissible hearsay evidence. Court held further – with regard to procedural fairness, that the employee was given only two days’ notice to prepare for the disciplinary hearing, which was insufficient and thus amounted to procedurally unfairness. Held further – That the ostensible independent chairperson, have had previous connections with the employer as a ‘representative’ of the employer in labour matters; that a result such relationship induced an apprehension of bias in the mind of a reasonable person. Furthermore, it was irregular for the chairperson of the internal disciplinary hearing to testify at the arbitration hearing, against one of the parties who had
ID%20Building%20Construction%20CC%20v%20Tangeni%20(HC-MD-LAB-APP-AAA-2017-00013)%20[2018]%20NALCMD%2013%20(21%20June%202018).docx