Absa Brokers (Pty) Limited v Moshoana NO and Others (JA45/03) [2005] ZALAC 3; (2005) 26 ILJ 1652 (LAC); [2005] 10 BLLR 939 (LAC) (26 May 2005)

Absa Brokers (Pty) Limited v Moshoana NO and Others (JA45/03) [2005] ZALAC 3; (2005) 26 ILJ 1652 (LAC); [2005] 10 BLLR 939 (LAC) (26 May 2005)

The court found that the appellant's case throughout the disciplinary, arbitration, and review proceedings was not based on any alleged false declaration in clause 16, but rather on the answer given in clause 14 and the alleged failure to explain the consequences of a replacement policy. The evidence established that the employee answered clause 14 in the negative on the client's instruction, as the client was undecided about cancelling the old policy. There was no obligation on the employee to provide the explanation contemplated in clause 14 when the client had not decided to cancel the old policy. The appellant failed to discharge the onus of proving a fair reason for dismissal. The...

Citation
[2005] ZALAC 3
Parties
Appellant: Absa Brokers (Pty) Limited; Respondent: G N Moshoana N.O.; Respondent: The Commission for Conciliation, Mediation and Arbitration; Respondent: J P Van Staden
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
26 May 2005
Case Number
JA45/03
Procedural Posture
Civil Appeal / Appeal From Labour Court Judgment Dismissing Review Application
Outcome
Appeal dismissed with costs.
Judges
Zondo, Pillay, Nkabinde
Legal Topics
Unfair Dismissal, Compensation Award, Disciplinary Procedure, Onus of Proof, Replacement Policy, Cross Examination Rule
Labour Law Civil Procedure Unfair Dismissal Compensation Award Disciplinary Procedure Onus of Proof Replacement Policy Cross Examination Rule

Case Brief

Summary, issues, holding and outcome

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Parties

Absa Brokers (Pty) Limited

Appellant

G N Moshoana N.O.

Respondent

The Commission for Conciliation, Mediation and Arbitration

Respondent

J P Van Staden

Respondent

Procedural Posture

Civil Appeal / Appeal From Labour Court Judgment Dismissing Review Application

Legal Issues

  1. 1 Whether the dismissal of the employee was substantively fair.
  2. 2 Whether the commissioner misconstrued the evidence and failed to appreciate the extent of the employee's contravention of LOA rules.
  3. 3 Whether the compensation awarded was excessive or unjustifiable.

Ratio Decidendi

The court found that the appellant's case throughout the disciplinary, arbitration, and review proceedings was not based on any alleged false declaration in clause 16, but rather on the answer given in clause 14 and the alleged failure to explain the consequences of a replacement policy. The evidence established that the employee answered clause 14 in the negative on the client's instruction, as the client was undecided about cancelling the old policy. There was no obligation on the employee to provide the explanation contemplated in clause 14 when the client had not decided to cancel the old policy. The appellant failed to discharge the onus of proving a fair reason for dismissal. The...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.