NEHAWU obo Kerr Hoho v Commission for Conciliation, Mediation and Arbitration and Others

Mr Kerr Hoho, employed as a researcher by the Eastern Cape Legislature, was dismissed for misconduct relating to disruptive behaviour and abuse of email communications. His dismissal was upheld by a CCMA commissioner (Mama). On review, the Labour Court (Van Niekerk J) found that while misconduct was proven, the commissioner applied the wrong test in determining sanction and set aside the award, remitting the matter to the same commissioner to determine a fair sanction on the existing record. When the matter returned to the CCMA, commissioner Mama had resigned and the case was heard by a different commissioner (Van Zydam), with the consent of the parties, and fresh evidence on sanction was led. The substitute commissioner again found dismissal fair. A subsequent review to the Labour Court was dismissed, leading to the present appeal.

The appeal was upheld. The Labour Court judgment and the arbitration award of commissioner Van Zydam were set aside. The original order of Van Niekerk J was reinstated, with directions that it be complied with within specified time periods or, if impracticable, that an application be brought to vary the order. No order as to costs was made.

The case underscores the binding nature of court remittal orders in labour disputes and clarifies that neither party consent nor administrative convenience can justify deviation from such orders. It affirms principles of legality and procedural discipline in CCMA proceedings following judicial review.