Enviroserv Waste Management (Pty) Ltd v Mosime NO and Others (JR 644/07) [2010] ZALC 52 (26 March 2010)

Enviroserv Waste Management (Pty) Ltd v Mosime NO and Others (JR 644/07) [2010] ZALC 52 (26 March 2010)

The Labour Court found that the arbitrator failed to properly consider the evidence and common cause facts regarding the existence and communication of the rule prohibiting removal of waste material. The third respondent had admitted knowledge of the rule and conceded that permission to remove waste was exceptional. The arbitrator misdirected himself by relying solely on the absence of documentary proof and by preferring the third respondent's version without adequate reasoning, despite contradictions and improbabilities. The Court held that the arbitrator's decision was unreasonable and constituted a gross irregularity. Furthermore, any procedural defects in the disciplinary enquiry were...

Citation
[2010] ZALC 52
Parties
Applicant: Enviroserv Waste Management (Pty) Ltd; Respondent: KM Mosime N.O.; Respondent: National Bargaining Council for the Road Freight Industry; Respondent: Jeffrey Zakaria Mogase
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
26 March 2010
Case Number
JR 644/07
Procedural Posture
Review Application / Labour Court Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The dismissal of the third respondent was substantively and procedurally fair.
Judges
Bhoola
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Procedural Fairness, Substantive Fairness, Disciplinary Procedure
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Procedural Fairness Substantive Fairness Disciplinary Procedure

Case Brief

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Parties

Enviroserv Waste Management (Pty) Ltd

Applicant

KM Mosime N.O.

Respondent

National Bargaining Council for the Road Freight Industry

Respondent

Jeffrey Zakaria Mogase

Respondent

Procedural Posture

Review Application / Labour Court Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator's award was reasonable and justifiable in relation to the evidence presented.
  2. 2 Whether the dismissal of the third respondent was substantively and procedurally fair.
  3. 3 Whether the rule prohibiting removal of waste material was proven and communicated to the third respondent.

Ratio Decidendi

The Labour Court found that the arbitrator failed to properly consider the evidence and common cause facts regarding the existence and communication of the rule prohibiting removal of waste material. The third respondent had admitted knowledge of the rule and conceded that permission to remove waste was exceptional. The arbitrator misdirected himself by relying solely on the absence of documentary proof and by preferring the third respondent's version without adequate reasoning, despite contradictions and improbabilities. The Court held that the arbitrator's decision was unreasonable and constituted a gross irregularity. Furthermore, any procedural defects in the disciplinary enquiry were...

Court Disposition

The arbitration award is reviewed and set aside. The dismissal of the third respondent was substantively and procedurally fair.

Orders

  • The arbitration award made by the first respondent under case number D352/JHB/1147/2005A on 23 January 2007 is reviewed and set aside.
  • The arbitration award is substituted by the order: 'The dismissal of the third respondent was substantively and procedurally fair.'