De Beer v Tupa 2012 (Pty) Ltd and Another (J 1547/14) [2014] ZALCJHB 247 (9 July 2014)

De Beer v Tupa 2012 (Pty) Ltd and Another (J 1547/14) [2014] ZALCJHB 247 (9 July 2014)

The court found that the agreement concluded between the applicant and the first respondent was a pre-dismissal arbitration agreement as contemplated in section 188A of the LRA. The evidence showed that the parties intended to approach the CCMA for a commissioner to preside over the disciplinary process, and references in correspondence and the initial award supported this interpretation. The first respondent's version that the agreement was for private arbitration was rejected as far-fetched and untenable. The first respondent breached the agreement by dismissing the applicant without following the agreed section 188A procedure, rendering the dismissal unlawful. The applicant established...

Citation
[2014] ZALCJHB 247
Parties
Applicant: Reyno Dawid De Beer; Respondent: Tupa 2012 (Pty) Ltd; Respondent: Mr Joseph Tsabadi
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
9 July 2014
Case Number
J1547/14
Procedural Posture
Urgent Application / Final Order After Urgent Application
Outcome
Application granted. Dismissal set aside. Applicant reinstated. Costs awarded against first respondent.
Judges
Lallie
Legal Topics
Pre Dismissal Arbitration, Section 188a Lra, Unlawful Dismissal, Costs Order, Urgent Interdict
Labour Law Civil Procedure Pre Dismissal Arbitration Section 188a Lra Unlawful Dismissal Costs Order Urgent Interdict

Case Brief

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Parties

Reyno Dawid De Beer

Applicant

Tupa 2012 (Pty) Ltd

Respondent

Mr Joseph Tsabadi

Respondent

Procedural Posture

Urgent Application / Final Order After Urgent Application

Legal Issues

  1. 1 Whether the applicant's dismissal was in breach of a pre-dismissal arbitration agreement as contemplated in section 188A of the LRA.
  2. 2 Whether the dismissal was unlawful due to non-compliance with the agreed procedure.
  3. 3 Whether the applicant is entitled to reinstatement and costs.

Ratio Decidendi

The court found that the agreement concluded between the applicant and the first respondent was a pre-dismissal arbitration agreement as contemplated in section 188A of the LRA. The evidence showed that the parties intended to approach the CCMA for a commissioner to preside over the disciplinary process, and references in correspondence and the initial award supported this interpretation. The first respondent's version that the agreement was for private arbitration was rejected as far-fetched and untenable. The first respondent breached the agreement by dismissing the applicant without following the agreed section 188A procedure, rendering the dismissal unlawful. The applicant established...

Court Disposition

Application granted. Dismissal set aside. Applicant reinstated. Costs awarded against first respondent.

Orders

  • The applicant's dismissal is in breach of the pre-dismissal arbitration agreement and unlawful.
  • The dismissal is set aside.