- CCMA commissioner found to have committed gross irregularity.
- Labour Court set aside the award but confirmed the dismissal was fair.
- Refugee worker’s expired status meant employment was legally impossible.
The Cape Town Labour Court set aside an arbitration award after finding that a CCMA commissioner committed a serious irregularity in how the proceedings were handled.
Acting Judge H Nieuwoudt said the commissioner’s treatment of Sony Aristos Muyulenu, a Congolese refugee who lost his job when his refugee status expired, was so flawed that it denied him a fair hearing.
At the arbitration, the commissioner interrupted Muyulenu’s questions, challenged his skills, and even claimed all South Africans could speak French. The commissioner also accused him of being flippant. The court said this went beyond proper case management and was misconduct, giving Muyulenu reason to feel he was not treated fairly.
Dismissal still found fair
While the commissioner’s conduct was condemned, the court stressed that Muyulenu’s dismissal in July 2023 was substantively and procedurally fair. His employment with Global Telesales (Pty) Ltd, trading as Lufthansa Intouch, could not legally continue once his refugee status lapsed, as Section 38(1) of the Immigration Act prohibits employing a foreign national without valid documentation.
The company had called an incapacity hearing before dismissal and even offered him the chance to reapply once his legal status was regularised. These steps satisfied the requirements of fairness, the court found.
Substitution instead of remittal
Because of the commissioner’s serious irregularity, the Labour Court had to decide whether to send the case back for a new arbitration or make its own decision. The court chose to decide the matter itself, saying the law was clearly not in the applicant’s favor and another arbitration would not help. It replaced the previous award with its own finding that the dismissal was fair in both substance and procedure.
The judgment highlights the need to balance employees’ rights to a fair hearing with the legal limits on employment when immigration status ends. It also reminds commissioners that their actions in hearings must support, not weaken, the fairness required by the Labour Relations Act.
Conviction.co.za
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