Doorgesh v Commission for Conciliation, Mediation and Arbitration and Others (CA4/2014; C965/2011) [2015] ZALAC 44 (6 November 2015)

Doorgesh v Commission for Conciliation, Mediation and Arbitration and Others (CA4/2014; C965/2011) [2015] ZALAC 44 (6 November 2015)

The Labour Appeal Court held that the appellant’s acceptance of compensation did not amount to peremption of his right to review the arbitration award. The conduct was not unequivocal and did not demonstrate an intention to abandon the review, especially as the review application was launched timeously. On the merits, the Commissioner’s finding that the dismissal was substantively fair but procedurally unfair was reasonable. The evidence established that the appellant repeatedly failed to comply with reasonable and lawful instructions, amounting to insubordination. The breakdown in the employment relationship justified dismissal, and the compensation awarded for procedural unfairness was...

Citation
[2015] ZALAC 44
Parties
Appellant: Doorgesh Jhupsee Harrinarain; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Du Plessis N.O.; Respondent: SABS Commercial (Pty) Ltd
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
6 November 2015
Case Number
CA4/2014; C965/2011
Procedural Posture
Labour Appeal / Appeal From Labour Court Judgment Dismissing Review Application on Grounds of Peremption
Outcome
Appeal dismissed.
Judges
Waglay, Musi, Savage
Legal Topics
Insubordination, Peremption, Unfair Dismissal, Review of Arbitration Award, Procedural Fairness
Labour Law Insubordination Peremption Unfair Dismissal Review of Arbitration Award Procedural Fairness

Case Brief

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Parties

Doorgesh Jhupsee Harrinarain

Appellant

Commission for Conciliation, Mediation and Arbitration

Respondent

Du Plessis N.O.

Respondent

SABS Commercial (Pty) Ltd

Respondent

Procedural Posture

Labour Appeal / Appeal From Labour Court Judgment Dismissing Review Application on Grounds of Peremption

Legal Issues

  1. 1 Whether the appellant's right to review the arbitration award was perempted by his acceptance of compensation.
  2. 2 Whether the dismissal of the appellant for insubordination was substantively and procedurally fair.

Ratio Decidendi

The Labour Appeal Court held that the appellant’s acceptance of compensation did not amount to peremption of his right to review the arbitration award. The conduct was not unequivocal and did not demonstrate an intention to abandon the review, especially as the review application was launched timeously. On the merits, the Commissioner’s finding that the dismissal was substantively fair but procedurally unfair was reasonable. The evidence established that the appellant repeatedly failed to comply with reasonable and lawful instructions, amounting to insubordination. The breakdown in the employment relationship justified dismissal, and the compensation awarded for procedural unfairness was...

Court Disposition

Appeal dismissed.

Orders

  • The appeal is dismissed.
  • No order as to costs is made.