Glaxo Welcome SA (Pty) Limited v Mashaba and Others (J3838/98) [1999] ZALC 101 (21 June 1999)

Glaxo Welcome SA (Pty) Limited v Mashaba and Others (J3838/98) [1999] ZALC 101 (21 June 1999)

The court found that the Commissioner’s conclusions regarding the charge of creating obstacles to the disciplinary process were not justifiable, as the evidence demonstrated that the employee was aware of the prohibition on outside representation and failed to motivate her appeal as required. The Commissioner placed undue emphasis on the formulation of the charge and failed to consider relevant documentary evidence. However, the court upheld the Commissioner’s findings on other charges, including double jeopardy regarding the questionnaire and the lack of negligence in re-hiring temporary employees, as these were supported by the evidence available at arbitration. The matter concerning...

Citation
[1999] ZALC 101
Parties
Applicant: Glaxo Welcome SA (Pty) Limited; Respondent: Mashaba, Eudocia Bongi; Respondent: G Shakoane N.O.; Respondent: Chairperson of the Governing Body of the Commission for Conciliation, Mediation and Arbitration
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
21 June 1999
Case Number
J3838/98
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Part of the arbitration award is reviewed and set aside; the matter is referred back to the CCMA for determination by a different Commissioner; costs are apportioned, with the applicant entitled to 40%.
Judges
G J Marcus
Legal Topics
Review of Arbitration Award, Procedural Fairness, Double Jeopardy, Disciplinary Code, Onus of Proof, Costs Apportionment
Labour Law Civil Procedure Review of Arbitration Award Procedural Fairness Double Jeopardy Disciplinary Code Onus of Proof Costs Apportionment

Case Brief

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Parties

Glaxo Welcome SA (Pty) Limited

Applicant

Mashaba, Eudocia Bongi

Respondent

G Shakoane N.O.

Respondent

Chairperson of the Governing Body of the Commission for Conciliation, Mediation and Arbitration

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the Commissioner failed to apply his mind to the evidence before him in the arbitration award.
  2. 2 Whether the employee was subjected to double jeopardy regarding the questionnaire charge.
  3. 3 Whether the employee was negligent in re-hiring temporary employees previously dismissed.

Ratio Decidendi

The court found that the Commissioner’s conclusions regarding the charge of creating obstacles to the disciplinary process were not justifiable, as the evidence demonstrated that the employee was aware of the prohibition on outside representation and failed to motivate her appeal as required. The Commissioner placed undue emphasis on the formulation of the charge and failed to consider relevant documentary evidence. However, the court upheld the Commissioner’s findings on other charges, including double jeopardy regarding the questionnaire and the lack of negligence in re-hiring temporary employees, as these were supported by the evidence available at arbitration. The matter concerning...

Court Disposition

Part of the arbitration award is reviewed and set aside; the matter is referred back to the CCMA for determination by a different Commissioner; costs are apportioned, with the applicant entitled to 40%.

Orders

  • That part of the second respondent’s arbitration award dealing with the charge of creating obstacles to the proper running of the disciplinary process is reviewed and set aside.
  • The matter is referred back to the Commission for Conciliation, Mediation and Arbitration for a different Commissioner to determine the dispute concerning the charge of creating obstacles to the proper running of the disciplinary process.