Giyani Spar v Commission for Conciliation, Mediation and Arbitration and Others (JR1605/13) [2017] ZALCJHB 177 (3 February 2017)

Giyani Spar v Commission for Conciliation, Mediation and Arbitration and Others (JR1605/13) [2017] ZALCJHB 177 (3 February 2017)

The court held that the commissioner erred by making a factual finding that no instruction was given to the third respondent, when the parties had agreed that the dispute concerned the reasonableness of the instruction and the appropriateness of dismissal. The commissioner’s reasons for rejecting the applicant’s evidence were not sustainable on the record. The finding fell outside the range of reasonable decisions and was therefore reviewable. However, since the commissioner did not consider the appropriateness of dismissal as a sanction, the matter was remitted to the CCMA for a different commissioner to determine the appropriate sanction for the misconduct, taking into account the...

Citation
[2017] ZALCJHB 177
Parties
Applicant: Giyani Spar; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Mr. B.E.R. Hone; Respondent: SACCAWU obo Rodney Baloyi
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
3 February 2017
Case Number
JR1605/13
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The commissioner’s finding was reviewed and set aside. The matter was remitted to the CCMA for reconsideration of the appropriate sanction by a different commissioner.
Judges
Van Niekerk
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Reasonable Instruction, Disciplinary Sanction
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Reasonable Instruction Disciplinary Sanction

Case Brief

Summary, issues, holding and outcome

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Parties

Giyani Spar

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Mr. B.E.R. Hone

Respondent

SACCAWU obo Rodney Baloyi

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the commissioner erred in finding that no reasonable instruction was given to the third respondent.
  2. 2 Whether the commissioner misdirected himself by making a finding contrary to the issues framed by the parties.
  3. 3 Whether the sanction of dismissal was appropriate for the misconduct committed.

Ratio Decidendi

The court held that the commissioner erred by making a factual finding that no instruction was given to the third respondent, when the parties had agreed that the dispute concerned the reasonableness of the instruction and the appropriateness of dismissal. The commissioner’s reasons for rejecting the applicant’s evidence were not sustainable on the record. The finding fell outside the range of reasonable decisions and was therefore reviewable. However, since the commissioner did not consider the appropriateness of dismissal as a sanction, the matter was remitted to the CCMA for a different commissioner to determine the appropriate sanction for the misconduct, taking into account the...

Court Disposition

The commissioner’s finding was reviewed and set aside. The matter was remitted to the CCMA for reconsideration of the appropriate sanction by a different commissioner.

Orders

  • The finding by the second respondent that the applicant had failed to prove that the third respondent had refused to carry out a reasonable instruction is reviewed and set aside.
  • The matter is remitted to the first respondent for consideration by a commissioner other than the second respondent of the appropriateness of dismissal as a sanction for the misconduct committed by the third respondent. The commissioner may have regard to the existing record and may require further evidence or...