Guidelines Formulated By The Labour Court In Order To Ensure Compliance With The Audi Alteram Partem Rule When An Arbitrator Wishes To Rely On Portions Of A Transcript Or Record Of An Internal Disciplinary Enquiry Where The Parties Agreed That Such Record Or Transcript Correctly Purports What It Wishes To Portray

Labour Edge

In the scenario where the parties agreed that the transcript or record of an internal disciplinary enquiry correctly purports what it wishes to portray and the relevant arbitrator is contemplating utilising certain portions of such transcript, what guidelines must be complied with in order to ensure compliance with the audi alteram partem rule?

The article sets out the approach adopted to the above question by the labour court in Hillside Aluminium (Pty) Ltd v Moses Mathuse and Others.[1]

 


 

In Hillside Aluminium (Pty) Ltd v Moses Mathuse and Others,[1] the following approach was adopted:

  1. the audi alteram partem rule requires that the parties and their representatives be given an opportunity to be heard regarding every matter and every piece of evidence the arbitrator may take into account;
  2. if there is non-compliance with the audi alteram partem rule, the parties are indeed denied a fair hearing; and
  3. where an arbitrator is considering factors that were not canvassed in evidence, he or she is required to alert the parties of this fact and invite them or afford them the opportunity to lead evidence or make submissions pertaining to these factors intended to be considered.

[1]          Supra

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.