Buscor (PTY) Ltd v Ntimbana and Others (JA104/2021) [2022] ZALAC 121; (2023) 44 ILJ 125 (LAC); [2023] 3 BLLR 202 (LAC) (29 November 2022)

Buscor (PTY) Ltd v Ntimbana and Others (JA104/2021) [2022] ZALAC 121; (2023) 44 ILJ 125 (LAC); [2023] 3 BLLR 202 (LAC) (29 November 2022)

The Labour Appeal Court held that Buscor failed to discharge its onus of proving that the individual employees committed an act of dishonesty by giving false testimony in the unfair labour practice arbitration. The mere fact that the employees did not succeed in their unfair labour practice claim does not automatically render their testimony dishonest. The absence of the record of evidence from the prior arbitration meant that neither the arbitrator nor the reviewing court could properly assess whether the employees' testimony was false or dishonest. The Bargaining Council had jurisdiction to determine the unfair dismissal dispute, as the nature of the dispute was misconduct, not an...

Citation
[2022] ZALAC 121
Parties
Appellant: Buscor (PTY) Ltd; Respondent: Ntimbana, TNO (as Arbitrator); Respondent: The South African Road Passenger Bargaining Council; Respondent: NUMSA obo RD Mashego & 1 Other
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
29 November 2022
Case Number
JA104/2021
Procedural Posture
Civil Appeal / Appeal From Labour Court Judgment and Order
Outcome
Appeal dismissed. The award reinstating the employees with back pay stands. No order as to costs.
Judges
Sutherland JA, Coppin JA, Kathree-Setiloane AJA
Legal Topics
Unfair Dismissal, Dishonesty in Testimony, Arbitration Review, Onus of Proof, Procedural Fairness, Jurisdiction of Bargaining Council
Labour Law Unfair Dismissal Dishonesty in Testimony Arbitration Review Onus of Proof Procedural Fairness Jurisdiction of Bargaining Council

Case Brief

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Parties

Buscor (PTY) Ltd

Appellant

Ntimbana, TNO (as Arbitrator)

Respondent

The South African Road Passenger Bargaining Council

Respondent

NUMSA obo RD Mashego & 1 Other

Respondent

Procedural Posture

Civil Appeal / Appeal From Labour Court Judgment and Order

Legal Issues

  1. 1 Whether the dismissal of employees for allegedly giving false testimony at an arbitration hearing was substantively and procedurally fair.
  2. 2 Whether the Bargaining Council had jurisdiction to determine the unfair dismissal dispute.
  3. 3 Whether the absence of the record of evidence from the prior arbitration precluded a finding of dishonesty.

Ratio Decidendi

The Labour Appeal Court held that Buscor failed to discharge its onus of proving that the individual employees committed an act of dishonesty by giving false testimony in the unfair labour practice arbitration. The mere fact that the employees did not succeed in their unfair labour practice claim does not automatically render their testimony dishonest. The absence of the record of evidence from the prior arbitration meant that neither the arbitrator nor the reviewing court could properly assess whether the employees' testimony was false or dishonest. The Bargaining Council had jurisdiction to determine the unfair dismissal dispute, as the nature of the dispute was misconduct, not an...

Court Disposition

Appeal dismissed. The award reinstating the employees with back pay stands. No order as to costs.

Orders

  • The appeal is dismissed with no order as to costs.