Eshowe Spar v Mkhwanazi and Others (D625/05) [2007] ZALC 192 (4 December 2007)

Eshowe Spar v Mkhwanazi and Others (D625/05) [2007] ZALC 192 (4 December 2007)

The court found that the applicant failed to provide a reasonable explanation for the delay in filing the review application, as the belief that the matter might be settled was not justified after the trade union filed an application to make the award an order of court. On the merits, the court held that the evidence did not support the dismissal for a dismissable offence, as the misconduct amounted to negligence rather than gross misconduct, and the employee stood to gain nothing from the incident. The refusal to attend or plead at the disciplinary inquiry did not amount to insubordination. The arbitrator's reasoning was valid, and the applicant failed to discharge its onus of proof....

Citation
[2007] ZALC 192
Parties
Applicant: Eshowe Spar; Respondent: E Mkhwanazi; Respondent: Charles Oakes N.O.; Respondent: Commission for Conciliation, Mediation and Arbitration
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
4 December 2007
Case Number
D625/05
Procedural Posture
Review Application / Application for Condonation and Review of Arbitration Award
Outcome
Application for condonation refused. Application for review refused. Applicant to pay costs of both applications.
Judges
Pillay D
Legal Topics
Condonation of Late Filing, Review of Arbitration Award, Dismissal for Negligence, Onus of Proof, Disciplinary Inquiry Procedure
Labour Law Civil Procedure Condonation of Late Filing Review of Arbitration Award Dismissal for Negligence Onus of Proof Disciplinary Inquiry Procedure

Case Brief

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Parties

Eshowe Spar

Applicant

E Mkhwanazi

Respondent

Charles Oakes N.O.

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Procedural Posture

Review Application / Application for Condonation and Review of Arbitration Award

Legal Issues

  1. 1 Whether the applicant's delay in filing the review application should be condoned.
  2. 2 Whether the arbitration award should be set aside on review.
  3. 3 Whether the evidence supported the dismissal of the employee for alleged misconduct.

Ratio Decidendi

The court found that the applicant failed to provide a reasonable explanation for the delay in filing the review application, as the belief that the matter might be settled was not justified after the trade union filed an application to make the award an order of court. On the merits, the court held that the evidence did not support the dismissal for a dismissable offence, as the misconduct amounted to negligence rather than gross misconduct, and the employee stood to gain nothing from the incident. The refusal to attend or plead at the disciplinary inquiry did not amount to insubordination. The arbitrator's reasoning was valid, and the applicant failed to discharge its onus of proof....

Court Disposition

Application for condonation refused. Application for review refused. Applicant to pay costs of both applications.

Orders

  • The application for condonation is refused.
  • The application for review is refused.