Food And General Workers Union v Labuschagne and Others (P155/98) [1998] ZALC 116 (20 November 1998)

Food And General Workers Union v Labuschagne and Others (P155/98) [1998] ZALC 116 (20 November 1998)

The Court found that the commissioner committed a gross irregularity by misdirecting himself on the onus of proof, effectively requiring Mr Mpendu to disprove the allegations rather than requiring the employer to prove the fairness of the dismissal. The commissioner also improperly relied on hearsay evidence, specifically the statement attributed to Mr Thabata, without the employer calling him as a witness. Although Mr Mpendu failed to comply with company rules regarding payment for empties, the defect in the arbitration process entitled the Court to interfere with the award. The Court set aside the arbitration award and ordered the reinstatement of Mr Mpendu, but declined to make the...

Citation
[1998] ZALC 116
Parties
Applicant: Food and General Workers Union; Applicant: M M Mpendu; Respondent: J Labuschagne; Respondent: The Director, the Commission for Conciliation, Mediation and Arbitration, Eastern Cape; Respondent: The Commission for Conciliation, Mediation and Arbitration, Eastern Cape; Respondent: Picardi Rebel Liquors
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
20 November 1998
Case Number
P155/98
Procedural Posture
Review Application / Judgment
Outcome
Arbitration award set aside; Mr Mpendu reinstated without retrospective effect; no order as to costs.
Judges
A A Landman
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Onus of Proof, Hearsay Evidence
Labour Law Unfair Dismissal Review of Arbitration Award Onus of Proof Hearsay Evidence

Case Brief

Summary, issues, holding and outcome

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Parties

Food and General Workers Union

Applicant

M M Mpendu

Applicant

J Labuschagne

Respondent

The Director, the Commission for Conciliation, Mediation and Arbitration, Eastern Cape

Respondent

The Commission for Conciliation, Mediation and Arbitration, Eastern Cape

Respondent

Picardi Rebel Liquors

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitration award declining reinstatement of Mr Mpendu is reviewable under section 145 of the Labour Relations Act.
  2. 2 Whether the commissioner misdirected himself regarding the onus of proof in unfair dismissal.
  3. 3 Whether the reliance on hearsay evidence was permissible and reliable.

Ratio Decidendi

The Court found that the commissioner committed a gross irregularity by misdirecting himself on the onus of proof, effectively requiring Mr Mpendu to disprove the allegations rather than requiring the employer to prove the fairness of the dismissal. The commissioner also improperly relied on hearsay evidence, specifically the statement attributed to Mr Thabata, without the employer calling him as a witness. Although Mr Mpendu failed to comply with company rules regarding payment for empties, the defect in the arbitration process entitled the Court to interfere with the award. The Court set aside the arbitration award and ordered the reinstatement of Mr Mpendu, but declined to make the...

Court Disposition

Arbitration award set aside; Mr Mpendu reinstated without retrospective effect; no order as to costs.

Orders

  • The first respondent's arbitration award is reviewed and set aside.
  • The fourth respondent, Picardi Rebel Liquors, is ordered to reinstate the second applicant, Mr Mpendu, in their employment on the same terms and conditions which prevailed on 21 November 1997.