Fipaza v Tsatsimpe (NO) and Others (JR243/13) [2015] ZALCJHB 124 (15 April 2015)

Fipaza v Tsatsimpe (NO) and Others (JR243/13) [2015] ZALCJHB 124 (15 April 2015)

Although the arbitrator's reasoning was flawed in finding a duty to disclose the prior dismissal, the ultimate decision not to reinstate the applicant was not unreasonable given the evidence before her. The arbitrator was entitled to consider the applicant's post-dismissal conduct, including her lack of candour in condonation proceedings and the concerns raised by the Commissioner and Pillay J. These factors, together with the seniority of the position and the need for trust, justified the refusal to reinstate. The review court found that the arbitrator's award was not one that no reasonable decision maker could reach, and thus grounds for review were not established.

Citation
[2015] ZALCJHB 124
Parties
Applicant: Nokwanda Fipaza; Respondent: Mapelo Tsatsimpe (N.O.); Respondent: CCMA; Respondent: Eskom Holdings Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
15 April 2015
Case Number
JR243/13
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The review application is dismissed.
Judges
Lagrange
Legal Topics
Unfair Dismissal, Reinstatement, Condonation, Remedy for Unfair Dismissal, Trust Relationship, Review of Arbitration Award
Labour Law Unfair Dismissal Reinstatement Condonation Remedy for Unfair Dismissal Trust Relationship Review of Arbitration Award

Case Brief

Summary, issues, holding and outcome

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Parties

Nokwanda Fipaza

Applicant

Mapelo Tsatsimpe (N.O.)

Respondent

CCMA

Respondent

Eskom Holdings Ltd

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator's refusal to reinstate the applicant was reasonable in light of previous court findings.
  2. 2 Whether the arbitrator impermissibly relied on a supposed duty to disclose a prior dismissal.
  3. 3 Whether post-dismissal conduct may be considered in determining appropriate relief.

Ratio Decidendi

Although the arbitrator's reasoning was flawed in finding a duty to disclose the prior dismissal, the ultimate decision not to reinstate the applicant was not unreasonable given the evidence before her. The arbitrator was entitled to consider the applicant's post-dismissal conduct, including her lack of candour in condonation proceedings and the concerns raised by the Commissioner and Pillay J. These factors, together with the seniority of the position and the need for trust, justified the refusal to reinstate. The review court found that the arbitrator's award was not one that no reasonable decision maker could reach, and thus grounds for review were not established.

Court Disposition

The review application is dismissed.

Orders

  • The review application is dismissed.
  • No order is made as to costs.