BBD Management Services (Pty) Ltd v Zwane N.O and Others (JR1855/20) [2023] ZALCJHB 7 (13 January 2023)

BBD Management Services (Pty) Ltd v Zwane N.O and Others (JR1855/20) [2023] ZALCJHB 7 (13 January 2023)

The court found that the commissioner’s award was reasonable and fell within the band of decisions a reasonable decision-maker could make. The employer failed to comply with Schedule 8, items 10 and 11 of the Code of Good Practice, as there was no proper investigation into the extent of the third respondent’s...

Source-derived case information.

Citation
[2023] ZALCJHB 7
Parties
Applicant: BBD Management Services (Pty) Ltd; Respondent: Themba Zwane N.O.; Respondent: Commission for Conciliation, Mediation and Arbitration, Johannesburg (CCMA); Respondent: Vuyiswa Portia Xorile
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
13 January 2023
Case Number
JR1855/20
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Review application dismissed with costs.
Judges
Swartz
Legal Topics
Unfair Dismissal, Incapacity Due to Ill Health, Code of Good Practice, Review Test, Compensation for Unfair Dismissal
Labour Law Civil Procedure Unfair Dismissal Incapacity Due to Ill Health Code of Good Practice Review Test Compensation for Unfair Dismissal

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Parties

BBD Management Services (Pty) Ltd

Applicant

Themba Zwane N.O.

Respondent

Commission for Conciliation, Mediation and Arbitration, Johannesburg (CCMA)

Respondent

Vuyiswa Portia Xorile

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the CCMA commissioner’s arbitration award finding the dismissal substantively unfair was reasonable.
  2. 2 Whether the employer complied with Schedule 8, items 10 and 11 of the Code of Good Practice regarding incapacity due to ill health.
  3. 3 Whether the commissioner exceeded his powers or acted unreasonably in accepting certain evidence and questioning witnesses.

Ratio Decidendi

The court found that the commissioner’s award was reasonable and fell within the band of decisions a reasonable decision-maker could make. The employer failed to comply with Schedule 8, items 10 and 11 of the Code of Good Practice, as there was no proper investigation into the extent of the third respondent’s incapacity or consideration of alternatives to dismissal. The employer convened the incapacity hearing while the third respondent was on sick leave, which was unfair. The commissioner’s acceptance of medical evidence and questioning of witnesses did not exceed his powers. The procedural and substantive aspects of fairness in incapacity dismissals are intertwined, and the employer’s...

Court Disposition

Review application dismissed with costs.

Orders

  • The review application is dismissed with costs.