Devel Switchboards (Pty) Ltd v Metal And Engineering Industries Bargaining Council and Others (JR2986/2010B) [2015] ZALCJHB 254 (7 August 2015)

Devel Switchboards (Pty) Ltd v Metal And Engineering Industries Bargaining Council and Others (JR2986/2010B) [2015] ZALCJHB 254 (7 August 2015)

The court found that the Commissioner failed to consider material and undisputed evidence that Mr Chisane was involved in ongoing theft and dishonesty, not limited to a single incident. The evidence from Ms Khoza and Mr Tselchous regarding collusion and repeated theft was not challenged by Mr Chisane in...

Source-derived case information.

Citation
[2015] ZALCJHB 254
Parties
Applicant: Devel Switchboards (Pty) Ltd; Respondent: Metal and Engineering Industries Bargaining Council; Respondent: Commissioner T Nsibanyoni N.O.; Respondent: Eric Chisane
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
7 August 2015
Case Number
JR2986/2010B
Procedural Posture
Review Application / Judgment on Opposed Review Application Under S 145 of the LRA
Outcome
Review application granted; arbitration award set aside and substituted with a finding of substantively fair dismissal; no order as to costs.
Judges
L M Malan
Legal Topics
Review of Arbitration Award, Gross Dishonesty, Theft in Employment, Substantive Fairness, Dismissal, Trust Relationship
Labour Law Civil Procedure Review of Arbitration Award Gross Dishonesty Theft in Employment Substantive Fairness Dismissal Trust Relationship

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Parties

Devel Switchboards (Pty) Ltd

Applicant

Metal and Engineering Industries Bargaining Council

Respondent

Commissioner T Nsibanyoni N.O.

Respondent

Eric Chisane

Respondent

Procedural Posture

Review Application / Judgment on Opposed Review Application Under S 145 of the LRA

Legal Issues

  1. 1 Whether the Commissioner failed to consider material evidence regarding ongoing acts of theft and dishonesty by the employee.
  2. 2 Whether the arbitration award was unreasonable and reviewable under s 145 of the LRA.
  3. 3 Whether the dismissal of the employee was substantively fair given the evidence of dishonesty and theft.

Ratio Decidendi

The court found that the Commissioner failed to consider material and undisputed evidence that Mr Chisane was involved in ongoing theft and dishonesty, not limited to a single incident. The evidence from Ms Khoza and Mr Tselchous regarding collusion and repeated theft was not challenged by Mr Chisane in cross-examination. The Commissioner’s disregard of this evidence led to an unreasonable outcome. The court held that the dismissal was substantively fair, as the trust relationship was irreparably broken due to dishonesty and theft, and the award was reviewable and should be set aside.

Court Disposition

Review application granted; arbitration award set aside and substituted with a finding of substantively fair dismissal; no order as to costs.

Orders

  • The arbitration award issued by the second respondent under case number MEGA27241 on 23 September 2010 is reviewed and set aside.
  • The award is substituted with: 'The third respondent’s dismissal was substantively fair.'