Capitec Bank Limited v CCMA and Others (D860/2017) [2018] ZALCD 26 (28 November 2018)

Capitec Bank Limited v CCMA and Others (D860/2017) [2018] ZALCD 26 (28 November 2018)

The court found that the Commissioner correctly interpreted the relevant rule and that the employee was dismissed for breaching it, not for gross negligence. The expired warnings could not be considered for progressive discipline, and the third respondent's disciplinary record was effectively clean, making her position comparable to Khan. The Commissioner’s finding of inconsistency in the application of discipline was reasonable, as other employees were given the opportunity to resign while the third respondent was not. The award reinstating the employee was within the band of reasonableness and could have been made by a reasonable commissioner.

Citation
[2018] ZALCD 26
Parties
Applicant: Capitec Bank Limited; Respondent: CCMA; Respondent: C Oaks N.O.; Respondent: Nhlapo D
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
28 November 2018
Case Number
D860/2017
Procedural Posture
Review Application / Judgment Delivered After Hearing of Review Application
Outcome
Application dismissed.
Judges
F Coetzee
Legal Topics
Inconsistent Disciplinary Action, Substantive Fairness, Progressive Discipline, Review of Arbitration Award
Labour Law Civil Procedure Inconsistent Disciplinary Action Substantive Fairness Progressive Discipline Review of Arbitration Award

Case Brief

Summary, issues, holding and outcome

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Parties

Capitec Bank Limited

Applicant

CCMA

Respondent

C Oaks N.O.

Respondent

Nhlapo D

Respondent

Procedural Posture

Review Application / Judgment Delivered After Hearing of Review Application

Legal Issues

  1. 1 Whether the arbitration award reinstating the employee was one that a reasonable commissioner could have made.
  2. 2 Whether the applicant acted inconsistently in disciplining employees for similar misconduct.
  3. 3 Whether expired warnings could be considered for progressive discipline.

Ratio Decidendi

The court found that the Commissioner correctly interpreted the relevant rule and that the employee was dismissed for breaching it, not for gross negligence. The expired warnings could not be considered for progressive discipline, and the third respondent's disciplinary record was effectively clean, making her position comparable to Khan. The Commissioner’s finding of inconsistency in the application of discipline was reasonable, as other employees were given the opportunity to resign while the third respondent was not. The award reinstating the employee was within the band of reasonableness and could have been made by a reasonable commissioner.

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.
  • There is no order as to costs.