Abrahams v Commission for Conciliation, Mediation and Arbitration (CCMA) and Others; Freedom Park v Abrahams and Others (JR268/13; JR516/13) [2015] ZALCJHB 457 (19 February 2015)

Abrahams v Commission for Conciliation, Mediation and Arbitration (CCMA) and Others; Freedom Park v Abrahams and Others (JR268/13; JR516/13) [2015] ZALCJHB 457 (19 February 2015)

The court found that the Commissioner could not reasonably have concluded that the employee had a disclosable interest in Under Pressure Agency based solely on a friendship with Giselle Baillie. The relevant policies did not extend the duty of disclosure to friendships, and the evidence did not establish any private or business interest requiring disclosure. The charge of gross dishonesty was not sustained, as there was no duty to disclose and the employee had previously disclosed his prior involvement with Giselle Baillie CC. The charges relating to wasteful expenditure were not established, as the non-performance was attributable to the employer's failings, and the employee acted...

Citation
[2015] ZALCJHB 457
Parties
Applicant: M.R. Abrahams; Respondent: Commission for Conciliation, Mediation and Arbitration (CCMA); Respondent: Khomotjo Matji N.O.; Respondent: Freedom Park
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
19 February 2015
Case Number
JR268/13; JR516/13
Procedural Posture
Review Application / Judgment After Hearing of Two Interrelated Review Applications
Outcome
The employee's review application is granted; the Commissioner's award is reviewed and set aside, and substituted with a finding of not guilty on all charges. The employer's review application is dismissed.
Judges
Beaton AJ
Legal Topics
Pre Dismissal Arbitration, Duty of Disclosure, Wasteful Expenditure, Disciplinary Code, Review of Arbitration Award
Labour Law Civil Procedure Pre Dismissal Arbitration Duty of Disclosure Wasteful Expenditure Disciplinary Code Review of Arbitration Award

Case Brief

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Parties

M.R. Abrahams

Applicant

Commission for Conciliation, Mediation and Arbitration (CCMA)

Respondent

Khomotjo Matji N.O.

Respondent

Freedom Park

Respondent

Procedural Posture

Review Application / Judgment After Hearing of Two Interrelated Review Applications

Legal Issues

  1. 1 Whether the employee had a disclosable interest in Under Pressure Agency by virtue of his friendship with Giselle Baillie.
  2. 2 Whether the Commissioner reasonably found the employee guilty of misconduct for failure to disclose an interest.
  3. 3 Whether the evidence established gross dishonesty or manipulation of the tender process.

Ratio Decidendi

The court found that the Commissioner could not reasonably have concluded that the employee had a disclosable interest in Under Pressure Agency based solely on a friendship with Giselle Baillie. The relevant policies did not extend the duty of disclosure to friendships, and the evidence did not establish any private or business interest requiring disclosure. The charge of gross dishonesty was not sustained, as there was no duty to disclose and the employee had previously disclosed his prior involvement with Giselle Baillie CC. The charges relating to wasteful expenditure were not established, as the non-performance was attributable to the employer's failings, and the employee acted...

Court Disposition

The employee's review application is granted; the Commissioner's award is reviewed and set aside, and substituted with a finding of not guilty on all charges. The employer's review application is dismissed.

Orders

  • The pre-dismissal arbitration award by Commissioner Khomotjo Matji under case no GATW9229-12 of First Respondent, dated 24 December 2012, is reviewed and set aside.
  • The award is substituted with one that the Applicant is not guilty of any of the charges brought against him by Third Respondent and the dismissal effected in the award is set aside.