I Bower And Associates CC v Phooko and Others (JR164/14) [2015] ZALCJHB 152 (14 May 2015)

I Bower And Associates CC v Phooko and Others (JR164/14) [2015] ZALCJHB 152 (14 May 2015)

The Court found that the First Respondent's arbitration award was not a decision that a reasonable decision maker could have arrived at. The Third to Sixth Respondents did not establish a prima facie case of inconsistency, as there was no evidence that the Applicant was aware of the fifth transgressor's involvement prior to arbitration, nor that the Applicant acted capriciously or with improper motives. The application of the consistency rule was incorrect and unreasonable. Regarding procedural fairness, the Court found that the dismissals occurred after the disciplinary hearing on 14 May 2013, not on 23 November 2012, and the First Respondent's finding ignored relevant facts about the...

Citation
[2015] ZALCJHB 152
Parties
Applicant: I Bower And Associates CC; Respondent: ME Phooko; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: SD Monene; Respondent: KD Aphane; Respondent: RG Mohlaka; Respondent: NH Tjale
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
14 May 2015
Case Number
JR164/14
Procedural Posture
Review Application / Judgment After Review of Arbitration Award
Outcome
Arbitration award reviewed and set aside; dismissals of the Third to Sixth Respondents found substantively and procedurally fair.
Judges
Alcock
Legal Topics
Unfair Dismissal, Consistency Rule, Protected Strike, Malicious Damage to Property, Arbitration Review
Labour Law Civil Procedure Unfair Dismissal Consistency Rule Protected Strike Malicious Damage to Property Arbitration Review

Case Brief

Summary, issues, holding and outcome

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Parties

I Bower And Associates CC

Applicant

ME Phooko

Respondent

Commission for Conciliation Mediation and Arbitration

Respondent

SD Monene

Respondent

KD Aphane

Respondent

RG Mohlaka

Respondent

NH Tjale

Respondent

Procedural Posture

Review Application / Judgment After Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitration award finding the dismissals of the Third to Sixth Respondents substantively and procedurally unfair was reasonable.
  2. 2 Whether the Applicant acted inconsistently in dismissing some employees but retaining another implicated employee.
  3. 3 Whether the disciplinary process and timing rendered the dismissals procedurally unfair.

Ratio Decidendi

The Court found that the First Respondent's arbitration award was not a decision that a reasonable decision maker could have arrived at. The Third to Sixth Respondents did not establish a prima facie case of inconsistency, as there was no evidence that the Applicant was aware of the fifth transgressor's involvement prior to arbitration, nor that the Applicant acted capriciously or with improper motives. The application of the consistency rule was incorrect and unreasonable. Regarding procedural fairness, the Court found that the dismissals occurred after the disciplinary hearing on 14 May 2013, not on 23 November 2012, and the First Respondent's finding ignored relevant facts about the...

Court Disposition

Arbitration award reviewed and set aside; dismissals of the Third to Sixth Respondents found substantively and procedurally fair.

Orders

  • The arbitration award is reviewed and set aside.
  • The dismissal of the Third to Sixth Respondents was both substantively and procedurally fair.