Hollard (Pty) Ltd v Hlatswayo NO and Others (JR1203/16; J1256/16) [2018] ZALCJHB 288 (11 September 2018)

Hollard (Pty) Ltd v Hlatswayo NO and Others (JR1203/16; J1256/16) [2018] ZALCJHB 288 (11 September 2018)

The court found that the arbitrator's conclusion that the dismissal was substantively unfair was reasonable and within the scope of his powers. The evidence showed that the third respondent had informed a manager of his illness and financial inability to obtain a medical certificate, and the employer was aware of his medical condition. The absence of a prior final warning and mitigating circumstances justified a lesser sanction than dismissal. The arbitrator's error regarding the adverse inference from Nyetela's absence as a witness was immaterial, as the applicant did not dispute the third respondent's version. However, the finding of procedural unfairness was not supported by evidence...

Citation
[2018] ZALCJHB 288
Parties
Applicant: Hollard (Pty) Ltd; Respondent: Themba Hlatshwayo (N.O.); Respondent: The Commission for Conciliation, Mediation & Arbitration; Respondent: Yassen Hassan Ebrahim
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
11 September 2018
Case Number
JR1203/16; J1256/16
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The review succeeded only on the issue of procedural fairness; the dismissal was found to be substantively unfair but procedurally fair. The amended arbitration award was made an order of court, and the applicant was ordered to pay the third respondent's costs.
Judges
Lagrange
Legal Topics
Unfair Dismissal, Procedural Fairness, Substantive Fairness, Progressive Discipline, Arbitration Review
Labour Law Civil Procedure Unfair Dismissal Procedural Fairness Substantive Fairness Progressive Discipline Arbitration Review

Case Brief

Summary, issues, holding and outcome

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Parties

Hollard (Pty) Ltd

Applicant

Themba Hlatshwayo (N.O.)

Respondent

The Commission for Conciliation, Mediation & Arbitration

Respondent

Yassen Hassan Ebrahim

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator's finding of substantive unfairness in the dismissal was reasonable.
  2. 2 Whether the dismissal of the third respondent was procedurally unfair.
  3. 3 Whether the absence of a medical certificate justified dismissal for absenteeism.

Ratio Decidendi

The court found that the arbitrator's conclusion that the dismissal was substantively unfair was reasonable and within the scope of his powers. The evidence showed that the third respondent had informed a manager of his illness and financial inability to obtain a medical certificate, and the employer was aware of his medical condition. The absence of a prior final warning and mitigating circumstances justified a lesser sanction than dismissal. The arbitrator's error regarding the adverse inference from Nyetela's absence as a witness was immaterial, as the applicant did not dispute the third respondent's version. However, the finding of procedural unfairness was not supported by evidence...

Court Disposition

The review succeeded only on the issue of procedural fairness; the dismissal was found to be substantively unfair but procedurally fair. The amended arbitration award was made an order of court, and the applicant was ordered to pay the third respondent's costs.

Orders

  • The arbitration award of the first respondent dated 16 May 2016 is reviewed and set aside only to the extent that the finding of procedural unfairness is replaced with a finding of procedural fairness.
  • Paragraph 6.1 of the award is replaced with a finding that the dismissal of Yassen Hassan Ebrahim by Hollard Insurance was substantively unfair.