Coca-Cola (Pty) Ltd v Ngwane NO and Others (D813/11) [2013] ZALCD 8; [2013] 9 BLLR 891 (LC) (7 May 2013)

Coca-Cola (Pty) Ltd v Ngwane NO and Others (D813/11) [2013] ZALCD 8; [2013] 9 BLLR 891 (LC) (7 May 2013)

The Labour Court found that the commissioner’s award of reinstatement was rationally connected to the evidence, as the applicant failed to establish that reinstatement was not reasonably practicable or that equivalent positions were unavailable. The evidence showed that the company was a large employer with ongoing...

Source-derived case information.

Citation
[2013] ZALCD 8
Parties
Applicant: Coca-Cola (Proprietary) Limited; Respondent: Jabulani Ngwane N.O.; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Enock M Ndlovu
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
7 May 2013
Case Number
D813/11
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Review application upheld in part; arbitration award amended to require repayment of severance package as a condition of reinstatement and back pay.
Judges
Chetty AJ
Legal Topics
Unfair Dismissal, Reinstatement, Severance Pay, Remedies for Unfair Dismissal, Review of Arbitration Award
Labour Law Civil Procedure Unfair Dismissal Reinstatement Severance Pay Remedies for Unfair Dismissal Review of Arbitration Award

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Summary, issues, holding and outcome

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Parties

Coca-Cola (Proprietary) Limited

Applicant

Jabulani Ngwane N.O.

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Enock M Ndlovu

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether reinstatement was a competent remedy where the employee's previous position no longer existed.
  2. 2 Whether the commissioner committed a reviewable irregularity by failing to order repayment of the severance package upon reinstatement with back pay.
  3. 3 Whether the commissioner properly considered the evidence and applicable law in awarding reinstatement and back pay.

Ratio Decidendi

The Labour Court found that the commissioner’s award of reinstatement was rationally connected to the evidence, as the applicant failed to establish that reinstatement was not reasonably practicable or that equivalent positions were unavailable. The evidence showed that the company was a large employer with ongoing opportunities, and the third respondent had not indicated any unwillingness to be reinstated. However, the commissioner committed a reviewable irregularity by failing to address the repayment of the severance package, as the third respondent would otherwise benefit from both reinstatement with back pay and retention of a substantial severance payment, which is not justified...

Court Disposition

Review application upheld in part; arbitration award amended to require repayment of severance package as a condition of reinstatement and back pay.

Orders

  • The third respondent is to be reinstated to the position held before secondment to Lionshare, or any equivalent position in status and grade.
  • The applicant is ordered to pay arrear salary to the third respondent for the period from 31 December 2010 to the date of reinstatement.