Central University of technology v Kholoane and Others (JR2826/11) [2016] ZALCJHB 356; (2017) 38 ILJ 167 (LC) (23 September 2016)

Central University of technology v Kholoane and Others (JR2826/11) [2016] ZALCJHB 356; (2017) 38 ILJ 167 (LC) (23 September 2016)

The court held that the arbitrator was correct in considering both the employer's power to change the sanction and the fairness of the resulting dismissal. The employer's regulatory framework listed a final written warning as an alternative to dismissal for the infractions in question, and the original sanction could not be considered shockingly inappropriate. The process followed in changing the sanction was procedurally unfair, as the chairperson who heard the evidence was excluded and the employee was not given an opportunity to make representations. The arbitrator's award was found to be reasonable and consistent with constitutional and statutory principles protecting employees from...

Citation
[2016] ZALCJHB 356
Parties
Applicant: Central University of Technology; Respondent: S Kholoane; Respondent: Marina Terblanche N.O; Respondent: CCMA Free State
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
23 September 2016
Case Number
JR2826/11
Procedural Posture
Review Application / Judgment on Review of CCMA Arbitration Award
Outcome
Review application dismissed with costs.
Judges
Matyolo
Legal Topics
Unfair Dismissal, Disciplinary Code, Procedural Fairness, Substantive Fairness, Arbitration Review, Sanction Change
Labour Law Unfair Dismissal Disciplinary Code Procedural Fairness Substantive Fairness Arbitration Review Sanction Change

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 6 Party arguments 2
Sign in to unlock

Parties

Central University of Technology

Applicant

S Kholoane

Respondent

Marina Terblanche N.O

Respondent

CCMA Free State

Respondent

Procedural Posture

Review Application / Judgment on Review of CCMA Arbitration Award

Legal Issues

  1. 1 Whether the employer was entitled to unilaterally change the sanction from a final written warning to dismissal.
  2. 2 Whether the dismissal was substantively and procedurally fair.
  3. 3 Whether the arbitrator exceeded her mandate in considering the fairness of the dismissal.

Ratio Decidendi

The court held that the arbitrator was correct in considering both the employer's power to change the sanction and the fairness of the resulting dismissal. The employer's regulatory framework listed a final written warning as an alternative to dismissal for the infractions in question, and the original sanction could not be considered shockingly inappropriate. The process followed in changing the sanction was procedurally unfair, as the chairperson who heard the evidence was excluded and the employee was not given an opportunity to make representations. The arbitrator's award was found to be reasonable and consistent with constitutional and statutory principles protecting employees from...

Court Disposition

Review application dismissed with costs.

Orders

  • The review application is dismissed with costs.