Department of Home Affairs v General Public Services Sectoral Bargaining Council and Others

The Third Respondent employee, Mr M.A. Nesengani, was employed by the Department of Home Affairs as a Control Immigration Officer at the Lindela Holding Facility. He was dismissed in April 2015 following allegations of sexual harassment made by Ms LYR Perez, a foreign detainee. Ms Perez gave inconsistent statements and was not fluent in English; her statement was interpreted and recorded by a friend who did not testify. Ms Perez was deported shortly after the disciplinary hearing and did not testify at arbitration. The General Public Services Sectoral Bargaining Council arbitrated the dispute, admitted the disciplinary record as hearsay, and found the dismissal substantively unfair, ordering reinstatement with retrospective back pay. The Department brought a late review application to the Labour Court, seeking condonation and to set aside the arbitration award, alleging irregularities in the treatment of hearsay evidence and failure to consider material evidence.

Condonation for the late filing of the review application was granted. The review application was dismissed. The arbitration award of reinstatement with retrospective back pay remained intact. No punitive costs order was made.

The case reaffirms the Sidumo reasonableness test in labour review proceedings and underscores the Labour Court’s reluctance to interfere with arbitration awards absent clear reviewable irregularities. It illustrates the flexible, interests-of-justice approach to condonation applications, even where procedural defects exist, and clarifies that commissioners may admit and weigh hearsay evidence appropriately, especially where witnesses are unavailable. The judgment also cautions litigants against disguising appeals as reviews.