Berco Express v SATAWU obo Motopi and Others (JR2123/03) [2005] ZALC 79; (2006) 27 ILJ 793 (LC) (8 June 2005)

Berco Express v SATAWU obo Motopi and Others (JR2123/03) [2005] ZALC 79; (2006) 27 ILJ 793 (LC) (8 June 2005)

The court found that the arbitrator misdirected herself by awarding both retrospective reinstatement and compensation, contrary to section 193 of the Labour Relations Act, which does not permit both remedies simultaneously. The arbitrator also exceeded her powers by conducting her own investigation and confusing poor performance with misconduct. The criticism of the disciplinary process was unwarranted, and the arbitrator demonstrated bias in favour of the employee. However, the applicant failed to provide sufficient detail regarding the requirements of the POD section and did little to explain what was expected of Motopi. As a result, the award was set aside, but the court declined to...

Citation
[2005] ZALC 79
Parties
Applicant: Berco Express; Respondent: SATAWU obo D Motopi; Respondent: National Bargaining Council for the Road Freight Industry; Respondent: Mapalo Tsatsimpe N.O.
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
8 June 2005
Case Number
JR2123/03
Procedural Posture
Review Application / Labour Court Review of Arbitration Award
Outcome
Award set aside; matter referred back for arbitration by a different arbitrator; no order as to costs.
Judges
E Revelas
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Compensation and Reinstatement, Procedural Fairness, Poor Performance, Disciplinary Procedure
Labour Law Unfair Dismissal Review of Arbitration Award Compensation and Reinstatement Procedural Fairness Poor Performance Disciplinary Procedure

Case Brief

Summary, issues, holding and outcome

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Parties

Berco Express

Applicant

SATAWU obo D Motopi

Respondent

National Bargaining Council for the Road Freight Industry

Respondent

Mapalo Tsatsimpe N.O.

Respondent

Procedural Posture

Review Application / Labour Court Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator misdirected herself by granting both retrospective reinstatement and compensation to the employee.
  2. 2 Whether the disciplinary and counselling procedures followed by the applicant were fair and in accordance with the Labour Relations Act.
  3. 3 Whether the arbitrator exceeded her powers and confused poor performance with misconduct.

Ratio Decidendi

The court found that the arbitrator misdirected herself by awarding both retrospective reinstatement and compensation, contrary to section 193 of the Labour Relations Act, which does not permit both remedies simultaneously. The arbitrator also exceeded her powers by conducting her own investigation and confusing poor performance with misconduct. The criticism of the disciplinary process was unwarranted, and the arbitrator demonstrated bias in favour of the employee. However, the applicant failed to provide sufficient detail regarding the requirements of the POD section and did little to explain what was expected of Motopi. As a result, the award was set aside, but the court declined to...

Court Disposition

Award set aside; matter referred back for arbitration by a different arbitrator; no order as to costs.

Orders

  • The arbitration award is set aside.
  • The matter is referred back to the National Bargaining Council for the Road Freight Industry for arbitration by a different arbitrator.