Is it enough that the commissioner dropped off to sleep during evidence to get your CCMA award reviewed and set aside? This judgment by Steenkamp J caught my eye, Gordon v JP Morgan Equities SA (Pty) Ltd and others [2017] JOL 38130 (LC). 

Deanne Gordon was employed as an equity strategist and after her father became ill – she resigned.
She had been with the Bank for over 20 years with a clean record. Gordon’s resignation was accepted and she was put on three months’ garden leave.

During this period, she emailed some company documents to her husband’s home email address. The Bank responded quickly and summarily dismissed her, alleging the documents were confidential and proprietary to JP Morgan.

There is no shortage of review judgments but this one is of interest for the following reasons:

• Notwithstanding the finding that the CCMA commissioner nodded off during evidence, this did not necessarily constitute a reviewable irregularity. The judge found that the commissioner missed only a small portion of the witness’ cross-examination and so this in itself did not deny the employee a fair hearing.
• The Bank filed a confirmatory affidavit explaining the reasons why the documents emailed were confidential, and not ‘public information’. This was done a month after the Bank’s answering affidavit had been filed and on the day the employee’s replying affidavit was deposed to. The confirmatory affidavit sought to introduce new evidence not covered in the arbitration. The employee successfully applied for the Bank’s confirmatory affidavit to be struck out.
• On the facts, the documents emailed were found to not be confidential nor proprietary to JP Morgan and the Judge accordingly found that the dismissal was substantively unfair.
• The employee’s attorney had said at the start of the arbitration that she was not seeking compensation – just to clear her name. When the judge was deciding on compensation – he confirmed that the court will not readily interfere with the arbitrator’s decision on compensation.

Reviews take too long to get to court. Gordon was dismissed in September 2013. The matter was heard on 4 and 5 May 2017 and very efficiently, judgment was handed down on 6 June 2017.

All that time, Gordon had this cloud over her head. She was awarded costs, so at least that will assist with recouping the legal fees for the past 4 years.

For a neat list of judgments where the commissioner’s conduct during the arbitration has resulted in a successful review – see Reviews in the Labour Court by Anton Myburgh SC and Craig Bosch, chapter 14 Errors in the conduct of proceedings. The book provides excellent guidance for labour practitioners and is a must-have manual for all labour lawyers, advocates, judges, CCMA commissioners, bargaining council arbitrators, unions, HR/IR practitioners, in-house counsel, lecturers and post-graduate students It is available at the LexisNexis Bookstore.

Written by Kate Staude – New Content Manager, LexisNexis South Africa