Creative Wood Design CC v Adjodha and Others (D681/07) [2011] ZALCD 48 (18 February 2011)

Creative Wood Design CC v Adjodha and Others (D681/07) [2011] ZALCD 48 (18 February 2011)

The court found that the commissioner committed a reviewable irregularity by failing to take into account all the evidence presented at arbitration, particularly the contradictory explanations given by the First Respondent regarding his absence and the disciplinary record. The commissioner did not properly assess the credibility of witnesses or the probabilities of their versions, as required by law. The court held that, had the commissioner considered all the evidence, he would have found the First Respondent's credibility to be compromised and the dismissal to be substantively fair. The court substituted the commissioner's award with its own, finding the dismissal substantively fair and...

Citation
[2011] ZALCD 48
Parties
Applicant: Creative Wood Design CC; Respondent: D. Adjodha; Respondent: M. Masipa; Respondent: Commission for Conciliation Mediation and Arbitration
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
18 February 2011
Case Number
D681/07
Procedural Posture
Review Application / Judgment
Outcome
Application for review granted; commissioner's award set aside; dismissal of First Respondent found substantively fair.
Judges
Shai
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Credibility Assessment, Onus of Proof
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Credibility Assessment Onus of Proof

Case Brief

Summary, issues, holding and outcome

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Parties

Creative Wood Design CC

Applicant

D. Adjodha

Respondent

M. Masipa

Respondent

Commission for Conciliation Mediation and Arbitration

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the commissioner failed to consider all material evidence presented at arbitration.
  2. 2 Whether the commissioner properly assessed the credibility of witnesses and the probabilities of their versions.
  3. 3 Whether the dismissal of the First Respondent was substantively fair.

Ratio Decidendi

The court found that the commissioner committed a reviewable irregularity by failing to take into account all the evidence presented at arbitration, particularly the contradictory explanations given by the First Respondent regarding his absence and the disciplinary record. The commissioner did not properly assess the credibility of witnesses or the probabilities of their versions, as required by law. The court held that, had the commissioner considered all the evidence, he would have found the First Respondent's credibility to be compromised and the dismissal to be substantively fair. The court substituted the commissioner's award with its own, finding the dismissal substantively fair and...

Court Disposition

Application for review granted; commissioner's award set aside; dismissal of First Respondent found substantively fair.

Orders

  • The award issued by the Second Respondent dated 24 September 2007 under case number KMDB 9010-07 is reviewed and set aside.
  • The dismissal of the First Respondent is substantively fair.