Absa Bank Limited v Ngwane NO and Others (D1149/14) [2016] ZALCD 21 (11 October 2016)

Absa Bank Limited v Ngwane NO and Others (D1149/14) [2016] ZALCD 21 (11 October 2016)

The court held that the commissioner did not act unreasonably in finding Chetty's dismissal substantively unfair. The evidence did not establish that Chetty deliberately refused to obey a reasonable instruction; rather, he failed to comply with the rule out of habit and immediately conceded his error. The commissioner reasonably preferred Chetty's version regarding the disposal of his cellphone, finding it was an act of contrition rather than aggression or insubordination. The court found that the probabilities and credibility assessments were intertwined and that the commissioner was entitled to rely on his observations of Chetty's demeanour. The exclusion of similar fact evidence was...

Citation
[2016] ZALCD 21
Parties
Applicant: Absa Bank Limited; Respondent: Jabulani Ngwane NO; Respondent: The CCMA; Respondent: Ivan Chetty
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
11 October 2016
Case Number
D1149/14
Procedural Posture
Review Application / Judgment on Review of CCMA Arbitration Award
Outcome
Application dismissed with costs.
Judges
Whitcher
Legal Topics
Unfair Dismissal, Progressive Discipline, Similar Fact Evidence, Reinstatement, Section 193 Lra, Credibility Assessment
Labour Law Unfair Dismissal Progressive Discipline Similar Fact Evidence Reinstatement Section 193 Lra Credibility Assessment

Case Brief

Summary, issues, holding and outcome

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Parties

Absa Bank Limited

Applicant

Jabulani Ngwane NO

Respondent

The CCMA

Respondent

Ivan Chetty

Respondent

Procedural Posture

Review Application / Judgment on Review of CCMA Arbitration Award

Legal Issues

  1. 1 Whether the commissioner unreasonably found Chetty's dismissal substantively unfair.
  2. 2 Whether possession of a cellphone in a prohibited area constituted a refusal to obey a reasonable instruction warranting dismissal.
  3. 3 Whether Chetty's conduct in throwing his cellphone into a bin was aggressive and insubordinate.

Ratio Decidendi

The court held that the commissioner did not act unreasonably in finding Chetty's dismissal substantively unfair. The evidence did not establish that Chetty deliberately refused to obey a reasonable instruction; rather, he failed to comply with the rule out of habit and immediately conceded his error. The commissioner reasonably preferred Chetty's version regarding the disposal of his cellphone, finding it was an act of contrition rather than aggression or insubordination. The court found that the probabilities and credibility assessments were intertwined and that the commissioner was entitled to rely on his observations of Chetty's demeanour. The exclusion of similar fact evidence was...

Court Disposition

Application dismissed with costs.

Orders

  • The application for review is dismissed.
  • The applicant is ordered to pay the costs of the application.