Belo & Kies Construction (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2333/2015) [2019] ZALCJHB 2 (9 January 2019)

Belo & Kies Construction (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2333/2015) [2019] ZALCJHB 2 (9 January 2019)

The court found that the arbitrator lost sight of the central issues to be decided, namely whether the employee was guilty of misconduct for failing to submit monthly cost reports as instructed, resulting in financial loss to the applicant. The arbitrator's findings on procedural and substantive fairness were not supported by the evidence, and she misdirected herself by considering irrelevant factors such as the timing of the project handover and the employee's hospitalisation. The evidence showed that the employee failed to submit cost reports over an extended period, despite direct instructions, and that this failure caused financial harm. The arbitrator's conclusion did not fall within...

Citation
[2019] ZALCJHB 2
Parties
Applicant: Belo & Kies Construction (Pty) Ltd; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Queendy Gungubele N.O.; Respondent: Thabang Robert Madonsela
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
9 January 2019
Case Number
JR2333/2015
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The dismissal of the employee is declared substantively and procedurally fair. No order as to costs.
Judges
Prinsloo
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Procedural Fairness, Substantive Fairness, Compensation, Progressive Discipline
Labour Law Unfair Dismissal Review of Arbitration Award Procedural Fairness Substantive Fairness Compensation Progressive Discipline

Case Brief

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Parties

Belo & Kies Construction (Pty) Ltd

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Queendy Gungubele N.O.

Respondent

Thabang Robert Madonsela

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator's finding that the employee's dismissal was substantively and procedurally unfair was reasonable.
  2. 2 Whether the evidence supported the arbitrator's conclusions regarding procedural and substantive fairness.
  3. 3 Whether the dismissal of the employee was fair in light of the misconduct and the evidence presented.

Ratio Decidendi

The court found that the arbitrator lost sight of the central issues to be decided, namely whether the employee was guilty of misconduct for failing to submit monthly cost reports as instructed, resulting in financial loss to the applicant. The arbitrator's findings on procedural and substantive fairness were not supported by the evidence, and she misdirected herself by considering irrelevant factors such as the timing of the project handover and the employee's hospitalisation. The evidence showed that the employee failed to submit cost reports over an extended period, despite direct instructions, and that this failure caused financial harm. The arbitrator's conclusion did not fall within...

Court Disposition

The arbitration award is reviewed and set aside. The dismissal of the employee is declared substantively and procedurally fair. No order as to costs.

Orders

  • The arbitration award issued by the Second Respondent on 20 October 2015 under case number GAJB 17155-15 is reviewed and set aside.
  • The arbitration award is substituted with an order that the Third Respondent's dismissal was substantively and procedurally fair.