Edcon Ltd v Sithole (D522/04) [2007] ZALCD 7 (20 March 2007)

Edcon Ltd v Sithole (D522/04) [2007] ZALCD 7 (20 March 2007)

The court found that the applicant did change her cash card details, but the explanation provided was reasonable and the change was effected openly. The employer failed to discharge its onus to prove that the conduct resulted in a breach of trust or dishonesty. The arbitrator's acceptance of hearsay evidence did not materially affect the outcome, as the respondent's evidence was corroborated and sufficient to support the award. The employer's failure to call a key witness did not render the award reviewable, as both parties had the opportunity to do so. Accordingly, the application for review was dismissed.

Citation
[2007] ZALCD 7
Parties
Applicant: Edcon Limited; Respondent: N B Sithole
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
20 March 2007
Case Number
D522/04
Procedural Posture
Review Application / Judgment
Outcome
Application for review dismissed with costs.
Judges
Pillay D
Legal Topics
Review of Arbitration Award, Breach of Trust, Disciplinary Procedure
Labour Law Civil Procedure Review of Arbitration Award Breach of Trust Disciplinary Procedure

Case Brief

Summary, issues, holding and outcome

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Parties

Edcon Limited

Applicant

N B Sithole

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitrator committed a gross irregularity by ignoring the employee's admission of changing cash card details.
  2. 2 Whether the arbitrator's acceptance of hearsay evidence rendered the award reviewable.
  3. 3 Whether the employer discharged its onus to prove breach of trust and dishonesty.

Ratio Decidendi

The court found that the applicant did change her cash card details, but the explanation provided was reasonable and the change was effected openly. The employer failed to discharge its onus to prove that the conduct resulted in a breach of trust or dishonesty. The arbitrator's acceptance of hearsay evidence did not materially affect the outcome, as the respondent's evidence was corroborated and sufficient to support the award. The employer's failure to call a key witness did not render the award reviewable, as both parties had the opportunity to do so. Accordingly, the application for review was dismissed.

Court Disposition

Application for review dismissed with costs.

Orders

  • The application for review is dismissed with costs.