ADCAN Marine v Commission for Conciliation, Mediation and Arbitration and Others (D352/06) [2009] ZALC 45 (19 March 2009)

ADCAN Marine v Commission for Conciliation, Mediation and Arbitration and Others (D352/06) [2009] ZALC 45 (19 March 2009)

The court found that the applicant failed to establish a prima facie case of misconduct against the employee regarding the missing cheese. The evidence presented did not eliminate other reasonable possibilities, such as the involvement of the assistant, the security guard, or others who had access to the truck. The commissioner was justified in accepting that the assistant could not be ruled out as responsible for the disappearance of the cheese. The applicant relied on circumstantial evidence but did not discharge its evidentiary burden. The commissioner acted within his powers under section 138 of the Labour Relations Act and applied the correct legal principles. The decision to...

Citation
[2009] ZALC 45
Parties
Applicant: ADCAN Marine; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner Paul Shabangu N.O.; Respondent: Vusi Goodhope Thetwayo
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
19 March 2009
Case Number
D352/06
Procedural Posture
Review Application / Judgment
Outcome
Application for review and setting aside of the arbitration award is dismissed with costs.
Judges
molahlehi
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Circumstantial Evidence, Reasonable Decision Maker
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Circumstantial Evidence Reasonable Decision Maker

Case Brief

Summary, issues, holding and outcome

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Parties

ADCAN Marine

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner Paul Shabangu N.O.

Respondent

Vusi Goodhope Thetwayo

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitration award reinstating the employee and granting back pay was reviewable on grounds of gross irregularity or misconduct by the commissioner.
  2. 2 Whether the commissioner correctly applied the law regarding circumstantial evidence and the balance of probabilities in finding the dismissal unfair.
  3. 3 Whether the applicant discharged its evidentiary burden to prove misconduct by the employee.

Ratio Decidendi

The court found that the applicant failed to establish a prima facie case of misconduct against the employee regarding the missing cheese. The evidence presented did not eliminate other reasonable possibilities, such as the involvement of the assistant, the security guard, or others who had access to the truck. The commissioner was justified in accepting that the assistant could not be ruled out as responsible for the disappearance of the cheese. The applicant relied on circumstantial evidence but did not discharge its evidentiary burden. The commissioner acted within his powers under section 138 of the Labour Relations Act and applied the correct legal principles. The decision to...

Court Disposition

Application for review and setting aside of the arbitration award is dismissed with costs.

Orders

  • The application to review and set aside the arbitration award under case number KNRB345-06 dated 2 June 2006 is dismissed.
  • The applicant is ordered to pay the costs of the proceedings.