Fermel (Pty) Ltd v Talane NO and Others (JR2545/14) [2019] ZALCJHB 83 (4 April 2019)

Fermel (Pty) Ltd v Talane NO and Others (JR2545/14) [2019] ZALCJHB 83 (4 April 2019)

The Labour Court found that the Commissioner erred in failing to make explicit credibility findings regarding the conflicting evidence, but that this error did not render the overall conclusion unreasonable. The Applicant failed to discharge the onus of proving gross negligence by the Third Respondent, as the evidence did not support a finding of negligence in the circumstances. The Court held that the Commissioner was correct in ordering reinstatement, but erred in awarding 12 months' back-pay when the Third Respondent was only unemployed for two months after dismissal. The principle of reinstatement is to restore the employee to the position they would have been in but for the unfair...

Citation
[2019] ZALCJHB 83
Parties
Applicant: Fermel (Pty) Ltd; Respondent: Sipho Talane, N.O.; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: Nesu Maroveke
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
4 April 2019
Case Number
JR 2545/14
Procedural Posture
Review Application / Labour Court Review of CCMA Arbitration Award
Outcome
The review application succeeds in part; the finding of unfair dismissal and reinstatement is upheld, but the award of 12 months' back-pay is set aside and replaced with two months' back-pay.
Judges
G Damant
Legal Topics
Unfair Dismissal, Reinstatement, Retrospective Remuneration, Onus of Proof, Credibility Assessment
Labour Law Civil Procedure Unfair Dismissal Reinstatement Retrospective Remuneration Onus of Proof Credibility Assessment

Case Brief

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Parties

Fermel (Pty) Ltd

Applicant

Sipho Talane, N.O.

Respondent

Commission for Conciliation Mediation and Arbitration

Respondent

Nesu Maroveke

Respondent

Procedural Posture

Review Application / Labour Court Review of CCMA Arbitration Award

Legal Issues

  1. 1 Whether the Commissioner failed to properly assess conflicting evidence and credibility in the arbitration award.
  2. 2 Whether the Applicant discharged the onus of proving gross negligence by the Third Respondent.
  3. 3 Whether the award of 12 months' retrospective reinstatement was reasonable given the Third Respondent's employment history post-dismissal.

Ratio Decidendi

The Labour Court found that the Commissioner erred in failing to make explicit credibility findings regarding the conflicting evidence, but that this error did not render the overall conclusion unreasonable. The Applicant failed to discharge the onus of proving gross negligence by the Third Respondent, as the evidence did not support a finding of negligence in the circumstances. The Court held that the Commissioner was correct in ordering reinstatement, but erred in awarding 12 months' back-pay when the Third Respondent was only unemployed for two months after dismissal. The principle of reinstatement is to restore the employee to the position they would have been in but for the unfair...

Court Disposition

The review application succeeds in part; the finding of unfair dismissal and reinstatement is upheld, but the award of 12 months' back-pay is set aside and replaced with two months' back-pay.

Orders

  • The decision of the Commissioner that the dismissal of the Third Respondent was substantively unfair is upheld.
  • The decision to reinstate the Third Respondent retrospectively and award 12 months' back-pay is set aside.