Absa Bank Ltd v CCMA and Others (JR1619/13) [2015] ZALCJHB 286 (8 September 2015)

Absa Bank Ltd v CCMA and Others (JR1619/13) [2015] ZALCJHB 286 (8 September 2015)

The court found that the arbitrator's decision to substitute dismissal with reinstatement and a warning was not one that a reasonable commissioner could have made. The employee's misrepresentation regarding the spouse's signature was a blatant breach of fiduciary duty and trust, amounting to gross dishonesty. The...

Source-derived case information.

Citation
[2015] ZALCJHB 286
Parties
Applicant: Absa Bank Ltd; Respondent: CCMA; Respondent: Commissioner Josias Sello Maake; Respondent: Miranda Ngwenya
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
8 September 2015
Case Number
JR1619/13
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Arbitration award set aside; dismissal of employee found substantively and procedurally fair; no order as to costs.
Judges
Steenkamp
Legal Topics
Unfair Dismissal, Gross Negligence, Misrepresentation, Fiduciary Duty, Sanction of Dismissal
Labour Law Civil Procedure Unfair Dismissal Gross Negligence Misrepresentation Fiduciary Duty Sanction of Dismissal

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Parties

Absa Bank Ltd

Applicant

CCMA

Respondent

Commissioner Josias Sello Maake

Respondent

Miranda Ngwenya

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator's decision to substitute dismissal with reinstatement and a warning was reasonable in light of proven misconduct.
  2. 2 Whether the employee's conduct constituted gross negligence and misrepresentation justifying dismissal.
  3. 3 Whether the employment relationship had irretrievably broken down due to the employee's actions.

Ratio Decidendi

The court found that the arbitrator's decision to substitute dismissal with reinstatement and a warning was not one that a reasonable commissioner could have made. The employee's misrepresentation regarding the spouse's signature was a blatant breach of fiduciary duty and trust, amounting to gross dishonesty. The employment relationship had irretrievably broken down, and the bank's decision to dismiss was fair and justified. The award was set aside and replaced with a finding that the dismissal was substantively and procedurally fair.

Court Disposition

Arbitration award set aside; dismissal of employee found substantively and procedurally fair; no order as to costs.

Orders

  • The arbitration award by the second respondent under case number LP 9033-12 of 6 August 2013 is reviewed and set aside.
  • The award is substituted with an award that the dismissal of the employee, Ms Miranda Ngwenya, was substantively and procedurally fair.