Ngaka Andrian Lesala v Metal and Engineering Industries Bargaining Council and Others

The applicant was dismissed on 20 December 2019 after being found guilty at a disciplinary hearing of gross misconduct for allegedly falsely accusing a senior manager of racism and of gross insubordination. An unfair dismissal dispute concerning the first charge was arbitrated before the Metal and Engineering Industries Bargaining Council. At arbitration, the employer relied on the evidence of a single witness, Mr Nicky Louw, who was also the complainant. Mr Louw was unavailable on the final arbitration date as he travelled to Namibia, and his attempted participation via Zoom was marred by severe connectivity problems. As a result, there was no effective cross-examination of Mr Louw. The commissioner undertook to rule on the admissibility and treatment of the untested evidence but failed to do so, ultimately finding the dismissal procedurally and substantively fair. The applicant, self-represented, brought a review application to the Labour Court.

The arbitration award dated 13 July 2021 was reviewed and set aside, and the dispute was remitted to the Metal and Engineering Industries Bargaining Council for a hearing de novo before a commissioner other than the second respondent. No order as to costs was made.

The case underscores the fundamental importance of effective cross-examination in arbitration proceedings, particularly where the employer relies on a single witness who is also the complainant. It reinforces that commissioners must expressly deal with untested or curtailed evidence and that failure to do so constitutes a gross irregularity justifying review.