Freshmark (Pty) Limited v SACCAWU and Others (D550/2006) [2008] ZALC 94; (2009) 30 ILJ 341 (LC) (10 July 2008)

Freshmark (Pty) Limited v SACCAWU and Others (D550/2006) [2008] ZALC 94; (2009) 30 ILJ 341 (LC) (10 July 2008)

The court found that the arbitrator erred by treating the two counts independently and failing to consider the impact of the suspicious circumstances on the trust relationship. The deviation from the route occurred on a day when extra unauthorised goods were loaded, and the conduct at the market stall was suspicious. The totality of circumstances reasonably destroyed the trust necessary for the employment relationship. The arbitrator's approach was artificial and erroneous, and no reasonable commissioner could conclude that the trust relationship was not destroyed. Therefore, dismissal was a fair sanction.

Citation
[2008] ZALC 94
Parties
Applicant: Freshmark (Pty) Limited; Respondent: SACCAWU; Respondent: Francis Seekooi; Respondent: Commission for Conciliation, Mediation & Arbitration; Respondent: Commissioner Anthony Osler
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
10 July 2008
Case Number
D550/2006
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Review succeeded; arbitration award set aside and replaced with dismissal of the application.
Judges
M Pillemer
Legal Topics
Unfair Dismissal, Trust Relationship, Dishonest Misconduct, Arbitration Review, Sanction Fairness
Labour Law Unfair Dismissal Trust Relationship Dishonest Misconduct Arbitration Review Sanction Fairness

Case Brief

Summary, issues, holding and outcome

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Parties

Freshmark (Pty) Limited

Applicant

SACCAWU

Respondent

Francis Seekooi

Respondent

Commission for Conciliation, Mediation & Arbitration

Respondent

Commissioner Anthony Osler

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the dismissal of the Second Respondent for deviation from his route was substantively fair in the context of suspicious circumstances.
  2. 2 Whether the arbitrator misdirected himself in assessing the evidence and sanction for misconduct.
  3. 3 Whether the trust relationship was reasonably destroyed by the Second Respondent's conduct.

Ratio Decidendi

The court found that the arbitrator erred by treating the two counts independently and failing to consider the impact of the suspicious circumstances on the trust relationship. The deviation from the route occurred on a day when extra unauthorised goods were loaded, and the conduct at the market stall was suspicious. The totality of circumstances reasonably destroyed the trust necessary for the employment relationship. The arbitrator's approach was artificial and erroneous, and no reasonable commissioner could conclude that the trust relationship was not destroyed. Therefore, dismissal was a fair sanction.

Court Disposition

Review succeeded; arbitration award set aside and replaced with dismissal of the application.

Orders

  • The award of the Fourth Respondent under case no 1401-06FS is reviewed and set aside and replaced with an award reading 'the application is dismissed'.
  • The First and Fourth Respondents are ordered to pay the Applicant's costs occasioned by their opposition to the review.