G4S Security Services SA (Pty) Ltd v Wabile and Others (JR1968/2010) [2012] ZALCJHB 125 (23 October 2012)

G4S Security Services SA (Pty) Ltd v Wabile and Others (JR1968/2010) [2012] ZALCJHB 125 (23 October 2012)

The court found that the dismissal of Mr Mbombo was both procedurally and substantively unfair. Procedurally, the company failed to prove that the employee received notice of the disciplinary hearing, as the telegrams were sent to an incorrect address. The appeal process did not cure the procedural defect, as it did not allow for oral evidence or cross-examination. Substantively, while Mr Mbombo breached the company rule on absenteeism by failing to communicate the duration of his absence and submit medical certificates timeously, the company failed to distinguish his case from that of another employee who received a final written warning for similar misconduct. Applying the parity...

Citation
[2012] ZALCJHB 125
Parties
Applicant: G4S Security Services SA (Pty) Ltd; Respondent: Commissioner Katlholo Wabile; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: SATAWU
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
23 October 2012
Case Number
JR1968/2010
Procedural Posture
Review Application / Judgment After Hearing of Review Application
Outcome
The review application is dismissed. The dismissal of Mr Mbombo was procedurally and substantively unfair.
Judges
Cele
Legal Topics
Unfair Dismissal, Procedural Fairness, Substantive Fairness, Parity Principle, Disciplinary Procedure
Labour Law Civil Procedure Unfair Dismissal Procedural Fairness Substantive Fairness Parity Principle Disciplinary Procedure

Case Brief

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Parties

G4S Security Services SA (Pty) Ltd

Applicant

Commissioner Katlholo Wabile

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

SATAWU

Respondent

Procedural Posture

Review Application / Judgment After Hearing of Review Application

Legal Issues

  1. 1 Whether the dismissal of Mr Mbombo was procedurally fair.
  2. 2 Whether the dismissal of Mr Mbombo was substantively fair.
  3. 3 Whether the company rule on absenteeism was correctly interpreted and applied.

Ratio Decidendi

The court found that the dismissal of Mr Mbombo was both procedurally and substantively unfair. Procedurally, the company failed to prove that the employee received notice of the disciplinary hearing, as the telegrams were sent to an incorrect address. The appeal process did not cure the procedural defect, as it did not allow for oral evidence or cross-examination. Substantively, while Mr Mbombo breached the company rule on absenteeism by failing to communicate the duration of his absence and submit medical certificates timeously, the company failed to distinguish his case from that of another employee who received a final written warning for similar misconduct. Applying the parity...

Court Disposition

The review application is dismissed. The dismissal of Mr Mbombo was procedurally and substantively unfair.

Orders

  • The applicant is to reinstate Mr Lindile Mbombo retrospectively from one year after the date of his dismissal, with effect from 6 January 2011, with no loss of benefits.
  • His earnings as on 6 January 2010 shall constitute the basis for calculation.