Big Five Recruitment v Shear and Another (J668/00) [2001] ZALC 94 (28 June 2001)

Big Five Recruitment v Shear and Another (J668/00) [2001] ZALC 94 (28 June 2001)

The court found that the applicant made a genuine and repeated offer of reinstatement to the third respondent immediately after the alleged dismissal. The third respondent's refusal to accept the offer was motivated by her pursuit of compensation rather than any reasonable apprehension of unfair treatment. The arbitrator failed to consider whether substantial redress had been offered and unreasonably refused, and did not apply the relevant legal principles regarding compensation for unfair dismissal. The award of compensation was not justified in law or on the facts, and the arbitration award was set aside.

Citation
[2001] ZALC 94
Parties
Applicant: Big Five Recruitment; Respondent: Shear Larry; Respondent: CCMA
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
28 June 2001
Case Number
J668/00
Procedural Posture
Review Application / Judgment
Outcome
Arbitration award set aside; third respondent ordered to pay applicant's costs.
Judges
E. Revelas
Legal Topics
Unfair Dismissal, Compensation Award, Reinstatement Offer, Procedural Fairness
Labour Law Unfair Dismissal Compensation Award Reinstatement Offer Procedural Fairness

Case Brief

Summary, issues, holding and outcome

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Parties

Big Five Recruitment

Applicant

Shear Larry

Respondent

CCMA

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the third respondent was unfairly dismissed by the applicant.
  2. 2 Whether the third respondent unreasonably refused an offer of reinstatement made in good faith and close proximity to the dismissal.
  3. 3 Whether the arbitrator correctly awarded compensation to the third respondent despite the reinstatement offer.

Ratio Decidendi

The court found that the applicant made a genuine and repeated offer of reinstatement to the third respondent immediately after the alleged dismissal. The third respondent's refusal to accept the offer was motivated by her pursuit of compensation rather than any reasonable apprehension of unfair treatment. The arbitrator failed to consider whether substantial redress had been offered and unreasonably refused, and did not apply the relevant legal principles regarding compensation for unfair dismissal. The award of compensation was not justified in law or on the facts, and the arbitration award was set aside.

Court Disposition

Arbitration award set aside; third respondent ordered to pay applicant's costs.

Orders

  • The arbitration award issued under case number GA48154 dated 9 December 1999 is reviewed and set aside.
  • The third respondent is to pay the applicant's costs.