Eviroserv Waste Management (Pty) Ltd v Mosime NO and Others (JR644/07) [2010] ZALCJHB 51 (26 March 2010)

Eviroserv Waste Management (Pty) Ltd v Mosime NO and Others (JR644/07) [2010] ZALCJHB 51 (26 March 2010)

The Labour Court found that the arbitrator failed to properly consider material evidence and the probabilities regarding the existence and communication of the rule prohibiting removal of waste, as well as the credibility of the applicant's witnesses. The arbitrator misdirected himself by substituting the charge of unauthorised possession with insubordination and failed to provide adequate reasons for preferring the third respondent's version, which was inconsistent and unsupported by the evidence. The Court held that the disciplinary and appeal hearings were procedurally fair, with the third respondent afforded representation and opportunity to present mitigation. The sanction of...

Citation
[2010] ZALCJHB 51
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 Johannesburg
Jurisdiction
South Africa
Judgment Date
26 March 2010
Case Number
JR644/07
Procedural Posture
Review Application / Labour Court Review of Arbitration Award
Outcome
Application for review granted; arbitration award set aside and substituted with a finding of substantive and procedural fairness in the dismissal.
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 committed reviewable irregularities in finding the dismissal of the third respondent substantively and procedurally unfair.
  2. 2 Whether the applicant proved the existence of a rule prohibiting removal of waste from the site.
  3. 3 Whether the third respondent was aware of and contravened company policy.

Ratio Decidendi

The Labour Court found that the arbitrator failed to properly consider material evidence and the probabilities regarding the existence and communication of the rule prohibiting removal of waste, as well as the credibility of the applicant's witnesses. The arbitrator misdirected himself by substituting the charge of unauthorised possession with insubordination and failed to provide adequate reasons for preferring the third respondent's version, which was inconsistent and unsupported by the evidence. The Court held that the disciplinary and appeal hearings were procedurally fair, with the third respondent afforded representation and opportunity to present mitigation. The sanction of...

Court Disposition

Application for review granted; arbitration award set aside and substituted with a finding of substantive and procedural fairness in the dismissal.

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.'