Broadreach (Pty) Ltd v Bennet NO and Others (C659/2018) [2021] ZALCCT 24 (18 January 2021)

Broadreach (Pty) Ltd v Bennet NO and Others (C659/2018) [2021] ZALCCT 24 (18 January 2021)

The court found that the third respondent was aware that her leave had been revoked and nevertheless proceeded with her absence, as evidenced by her email correspondence and the advice given by her legal representative. The Commissioner failed to properly consider whether the third respondent had knowledge of the withdrawal of authorization and her insubordination. The finding that the dismissal was substantively unfair was unreasonable in light of the evidence. The court held that the dismissal was substantively fair and substituted the arbitration award accordingly.

Citation
[2021] ZALCCT 24
Parties
Applicant: Broadreach (Pty) Ltd; Respondent: Bennet C.M. N.O.; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: Sutasha Dooki
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
18 January 2021
Case Number
C659/2018
Procedural Posture
Review Application / Judgment on Opposed Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The dismissal of Sutasha Dookhi is declared substantively fair. No order as to costs.
Judges
H. Rabkin-Naicker
Legal Topics
Unfair Dismissal, Unauthorised Absence, Substantive Fairness, Review of Arbitration Award
Labour Law Civil Procedure Unfair Dismissal Unauthorised Absence Substantive Fairness Review of Arbitration Award

Case Brief

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Parties

Broadreach (Pty) Ltd

Applicant

Bennet C.M. N.O.

Respondent

Commission for Conciliation Mediation and Arbitration

Respondent

Sutasha Dooki

Respondent

Procedural Posture

Review Application / Judgment on Opposed Review of Arbitration Award

Legal Issues

  1. 1 Whether the third respondent's dismissal for unauthorized leave was substantively unfair.
  2. 2 Whether the Commissioner correctly evaluated the evidence regarding the withdrawal of leave and the third respondent's knowledge thereof.
  3. 3 Whether the arbitration award should be reviewed and substituted.

Ratio Decidendi

The court found that the third respondent was aware that her leave had been revoked and nevertheless proceeded with her absence, as evidenced by her email correspondence and the advice given by her legal representative. The Commissioner failed to properly consider whether the third respondent had knowledge of the withdrawal of authorization and her insubordination. The finding that the dismissal was substantively unfair was unreasonable in light of the evidence. The court held that the dismissal was substantively fair and substituted the arbitration award accordingly.

Court Disposition

The arbitration award is reviewed and set aside. The dismissal of Sutasha Dookhi is declared substantively fair. No order as to costs.

Orders

  • The Award under Case Number WECT-381-18 is reviewed and set aside and substituted as follows: The dismissal of Sutasha Dookhi was substantively fair.
  • There is no order as to costs.