Baba v General Public Service Sectoral Bargaining Council and Others (C1125/2010) [2011] ZALCCT 43 (2 June 2011)

Baba v General Public Service Sectoral Bargaining Council and Others (C1125/2010) [2011] ZALCCT 43 (2 June 2011)

The court found that the arbitrator failed to exercise her discretion judicially when she awarded compensation instead of reinstatement. The arbitrator did not consider the specific facts of the case or require evidence from the employer to prove that reinstatement was not reasonably practicable or intolerable. The delay in resolving the dispute was not caused by the applicant, and the period of delay was not comparable to the circumstances in Republican Press. The court held that section 193(2) of the Labour Relations Act mandates reinstatement unless the employer proves exceptions, which was not done. Therefore, the compensation award was set aside and replaced with an order for...

Citation
[2011] ZALCCT 43
Parties
Applicant: Leslie Baba; Respondent: General Public Service Sectoral Bargaining Council; Respondent: Madeleine Loyson N.O.; Respondent: Department of Home Affairs
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
2 June 2011
Case Number
C1125/2010
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Review application upheld; arbitration award of compensation set aside and replaced with reinstatement from date of dismissal.
Judges
Francis
Legal Topics
Unfair Dismissal, Reinstatement, Compensation, Section 193 Labour Relations Act, Arbitration Review
Labour Law Unfair Dismissal Reinstatement Compensation Section 193 Labour Relations Act Arbitration Review

Case Brief

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Parties

Leslie Baba

Applicant

General Public Service Sectoral Bargaining Council

Respondent

Madeleine Loyson N.O.

Respondent

Department of Home Affairs

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator erred in awarding compensation instead of reinstatement for an unfair dismissal.
  2. 2 Whether the arbitrator properly applied section 193(2) of the Labour Relations Act when determining relief.
  3. 3 Whether the delay in prosecuting the dispute justified compensation rather than reinstatement.

Ratio Decidendi

The court found that the arbitrator failed to exercise her discretion judicially when she awarded compensation instead of reinstatement. The arbitrator did not consider the specific facts of the case or require evidence from the employer to prove that reinstatement was not reasonably practicable or intolerable. The delay in resolving the dispute was not caused by the applicant, and the period of delay was not comparable to the circumstances in Republican Press. The court held that section 193(2) of the Labour Relations Act mandates reinstatement unless the employer proves exceptions, which was not done. Therefore, the compensation award was set aside and replaced with an order for...

Court Disposition

Review application upheld; arbitration award of compensation set aside and replaced with reinstatement from date of dismissal.

Orders

  • Paragraphs 7.2 and 7.3 of the arbitration award dated 5 October 2010 under case number PSGA 1240.07/08 are reviewed and set aside and replaced with an order that the respondent is to reinstate the applicant from 31 January 2008.
  • The third respondent is to pay the applicant's costs.