EThekwini Municipality v NAMTU obo Cele and Others (D309/15) [2018] ZALCD 4 (15 June 2018)

EThekwini Municipality v NAMTU obo Cele and Others (D309/15) [2018] ZALCD 4 (15 June 2018)

The court found that the arbitrator failed to properly identify and address the central dispute, namely whether the first respondent contravened the terms of her suspension and whether dismissal was an appropriate sanction. The evidence clearly established that the first respondent deliberately disregarded explicit...

Source-derived case information.

Citation
[2018] ZALCD 4
Parties
Applicant: EThekwini Municipality; Respondent: NAMTU obo Nonhlanhla Cele; Respondent: M B Masipa NO; Respondent: South African Local Government Bargaining Council
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
15 June 2018
Case Number
D309/15
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The dismissal of the first respondent is found to be fair and her application is dismissed. No order as to costs.
Judges
D H Gush
Legal Topics
Unfair Dismissal, Arbitration Review, Procedural Fairness, Sanction for Misconduct
Labour Law Unfair Dismissal Arbitration Review Procedural Fairness Sanction for Misconduct

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Summary, issues, holding and outcome

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Parties

EThekwini Municipality

Applicant

NAMTU obo Nonhlanhla Cele

Respondent

M B Masipa NO

Respondent

South African Local Government Bargaining Council

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator misdirected herself in finding the dismissal of the first respondent substantively unfair.
  2. 2 Whether the first respondent contravened the terms of her suspension and whether dismissal was an appropriate sanction.
  3. 3 Whether the arbitration award should be reviewed and set aside.

Ratio Decidendi

The court found that the arbitrator failed to properly identify and address the central dispute, namely whether the first respondent contravened the terms of her suspension and whether dismissal was an appropriate sanction. The evidence clearly established that the first respondent deliberately disregarded explicit instructions in her suspension letter, including the use and return of a municipal vehicle and entering municipal premises. The arbitrator's conclusion that the first respondent was not guilty of misconduct was unreasonable and not supported by the evidence. The court held that the award should be set aside and substituted with a finding that the dismissal was fair and the...

Court Disposition

The arbitration award is reviewed and set aside. The dismissal of the first respondent is found to be fair and her application is dismissed. No order as to costs.

Orders

  • The award of the second respondent is reviewed and set aside and substituted with an order that the dismissal of the first respondent was fair and her application is dismissed with no order as to costs.
  • There is no order as to the costs of this application.