Cailan Trading CC t/a Plexus Samsung v Sehunane NO and Others (JR2858/12) [2013] ZALCJHB 156 (11 July 2013)
The court found that the arbitrator failed to consider essential objective evidence, such as the height of the cable, the employee, and the spindle, which was necessary to determine whether the instruction to tie the cable was reasonable and whether the employee's refusal was justified. As a result, the arbitrator's...
Source-derived case information.
- Citation
- [2013] ZALCJHB 156
- Parties
- Applicant: Cailan Trading CC t/a Plexus Samsung; Respondent: Matome Victor Sehunane N.O; Respondent: CCMA; Respondent: Sunny Cecil Motloung
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JR2858/12
- Procedural Posture
- Review Application / Judgment
- Outcome
- The arbitration award is set aside and the dispute is remitted for fresh arbitration before a different arbitrator.
- Judges
- T J Bruinders
- Legal Topics
- Unfair Dismissal, Arbitration Review, Reasonable Instruction, Remittal of Dispute
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cailan Trading CC t/a Plexus Samsung
Applicant
Matome Victor Sehunane N.O
Respondent
CCMA
Respondent
Sunny Cecil Motloung
Respondent
Procedural Posture
Review Application / Judgment
Legal Issues
- 1 Whether the arbitrator's award finding the dismissal unfair was reasonable.
- 2 Whether the arbitrator properly considered objective evidence regarding the employee's ability to comply with the instruction.
- 3 Whether the dispute should be remitted for fresh arbitration.
Ratio Decidendi
The court found that the arbitrator failed to consider essential objective evidence, such as the height of the cable, the employee, and the spindle, which was necessary to determine whether the instruction to tie the cable was reasonable and whether the employee's refusal was justified. As a result, the arbitrator's award was unreasonable. However, the court was not satisfied that the dismissal was fair and therefore remitted the dispute to the CCMA for fresh arbitration before a different arbitrator.
Court Disposition
The arbitration award is set aside and the dispute is remitted for fresh arbitration before a different arbitrator.
Orders
- The arbitration award issued under case number GEAK 5291 is set aside.
- The unfair dismissal dispute referred to the CCMA by the third respondent is remitted for arbitration by an arbitrator other than the first respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGEMENT
Not reportable
Case no: JR 2858/12
In the matter between:
Cailan Trading CC t/a Plexus Samsung .........................................................Applicant
and
Matome Victor Sehunane N.O ...............................................................1st Respondent
C C M A ...................................................................................................2nd Respondent
Sunny Cecil Motloung ............................................................................3rd Respondent
Heard: 9 July 2013
Delivered: 11 July 2013
_____
JUDGMENT
BRUINDERS AJ
The employer seeks to review and set aside an arbitration award issued by a CCMA arbitrator dated 24 October 2012 under case number GEAK 5291. Under the award the employee’s dismissal was found to be unfair and he was awarded compensation. The application is unopposed. The main ground of review is that no reasonable arbitrator could reasonably have made this award. I agree. But I am not inclined to find that the dismissal was fair.
The reason for the dismissal was that the employee had failed to comply with a reasonable instruction. He was instructed to tie a cable. His version was that he was not tall enough. It is common cause that there was no ladder. The employer’s version
is that there was a spindle he could use to reach the cable. The arbitrator accepted the version of the employee without recourse to the objective evidence. It should have been established by the arbitrator how high the cable was, how tall the employee was and what the height of the spindle was. These simple facts would have enabled him to decide whether the refusal to comply with the instruction was reasonable in the circumstances. That was no done.
Consequently the order that I make is that the dispute should be remitted to another arbitrator of the CCMA to decide the employee’s dismissal dispute. The order I make is the following:
(a) The arbitration award issued under case number GEAK 5291 is set aside.
(b) The unfair dismissal dispute referred to the CCMA by the third respondent is remitted for arbitration by an arbitrator other than the first respondent.
(c) There is no costs order.
T J Bruinders
Acing Judge of the Labour Court