Auto Pedigree, Division of Motus Group v Dispute Resolution Centre (MIBCO) and Others

The third respondent (Mogashoa) was employed by the applicant (Auto Pedigree) as a branch manager until dismissed for misconduct. He was found guilty of three charges involving gross insubordination, gross negligence, and dishonesty. The third respondent failed to attend his internal disciplinary hearing on 27 October 2021, claiming ill health and submitting a medical certificate. The applicant required him to attend virtually to explain his illness, which he failed to do. The disciplinary hearing proceeded in his absence, and he was found guilty and dismissed. The third respondent had also requested documents for the hearing but did not receive them. The commissioner found the dismissal substantively fair but procedurally unfair, awarding compensation of one and half months' salary. The applicant brought a review application to set aside the award. The third respondent filed a notice of opposition on 17 November 2023, many months late, seeking condonation and bringing his own review application.

• Whether the arbitration award was so unreasonable that no reasonable decision maker could have reached it (Sidumo test)
• Whether condonation should be granted for the third respondent's late opposition filed many months after the supplementary affidavit
• Whether condonation should be granted for the third respondent's late review application filed more than one year after the award
• Whether the commissioner reasonably found procedural unfairness where the disciplinary hearing proceeded in the third respondent's absence when he claimed illness
• Whether the commissioner reasonably found procedural unfairness where the third respondent was not provided with requested documents prior to the disciplinary hearing

The review application was dismissed. The arbitration award finding substantive fairness but procedural unfairness was upheld. The third respondent's applications for condonation (for late opposition and late review) were dismissed.

An arbitration award will only be set aside on review if it is so unreasonable that no reasonable decision maker could have reached it (Sidumo test). In review proceedings, the focus is on whether the outcome is unreasonable, not merely whether the reasoning is flawed. Condonation for late filing will be refused where the delay is extremely lengthy and the explanation inadequate - lack of funds alone, without more, is insufficient, particularly where the party is a senior employee who has not explained efforts to secure funding or inability to proceed unrepresented. Where a commissioner finds procedural unfairness on multiple independent grounds, the failure of the reviewing party to address one of those grounds is fatal to the review, as that alternative basis for the finding stands unrebutted and cannot be said to be unreasonable.

The court noted that arbitration processes and awards constitute administrative action under section 33(1) of the Constitution, which requires all administrative action to be lawful, reasonable, and procedurally fair. The court also observed that the third respondent was not a blue-collar worker but a branch manager of a large corporate entity, implying he should have had greater capacity to manage his own legal affairs. The court commented that if the commissioner had indeed failed to consider that the hearing was virtual, this would 'likely have been problematic', though ultimately not fatal to the award due to the outcome-based nature of review proceedings.

This case illustrates the application of the Sidumo reasonableness test in reviewing arbitration awards under the LRA. It demonstrates the court's strict approach to condonation applications where delays are lengthy and explanations inadequate, particularly emphasizing that lack of funds alone is insufficient justification. The case also reinforces that review proceedings are outcome-based rather than reasoning-based, and that commissioners' findings on procedural fairness will be upheld where they fall within the bounds of reasonableness, especially where there are multiple independent grounds supporting the finding.