Early Bird Services v Commission For Conciliation, Mediation And Arbitration and Others (D30/03) [2008] ZALCD 2 (6 February 2008)

Early Bird Services v Commission For Conciliation, Mediation And Arbitration and Others (D30/03) [2008] ZALCD 2 (6 February 2008)

The Court found that the arbitrator's credibility finding against the employee regarding written authorisation for leave was not supported by the evidence. However, the employer's refusal to grant leave and subsequent dismissal were tainted by an improper motive to terminate the employee's services. The employer's conduct, including issuing retrenchment notices and advertising for posts that could have been filled by the employee, indicated a premeditated intention to dismiss. Even if the employee took unauthorised leave, dismissal was not justified under the circumstances. The application for review was therefore dismissed with costs.

Citation
[2008] ZALCD 2
Parties
Applicant: Early Bird Services; Respondent: Commission For Conciliation, Mediation And Arbitration; Respondent: Commissioner L.M. Epstein; Respondent: Manivasen Pillay
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
6 February 2008
Case Number
D30/03
Procedural Posture
Review Application / Judgment
Outcome
Application for review dismissed with costs.
Judges
Pillay D
Legal Topics
Unfair Dismissal, Retrenchment, Leave Authorisation, Credibility of Witnesses
Labour Law Unfair Dismissal Retrenchment Leave Authorisation Credibility of Witnesses

Case Brief

Summary, issues, holding and outcome

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Parties

Early Bird Services

Applicant

Commission For Conciliation, Mediation And Arbitration

Respondent

Commissioner L.M. Epstein

Respondent

Manivasen Pillay

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the employee's dismissal was substantively unfair.
  2. 2 Whether the employee had proper authorisation for leave.
  3. 3 Whether the employer's refusal to grant leave and subsequent dismissal were motivated by improper reasons.

Ratio Decidendi

The Court found that the arbitrator's credibility finding against the employee regarding written authorisation for leave was not supported by the evidence. However, the employer's refusal to grant leave and subsequent dismissal were tainted by an improper motive to terminate the employee's services. The employer's conduct, including issuing retrenchment notices and advertising for posts that could have been filled by the employee, indicated a premeditated intention to dismiss. Even if the employee took unauthorised leave, dismissal was not justified under the circumstances. The application for review was therefore dismissed with costs.

Court Disposition

Application for review dismissed with costs.

Orders

  • The application for review is dismissed with costs.