ICHAWU and Others v CCMA And Others (C 308/13) [2015] ZALCCT 48; [2015] 9 BLLR 958 (LC); (2015) 36 ILJ 3086 (LC) (29 July 2015)

ICHAWU and Others v CCMA And Others (C 308/13) [2015] ZALCCT 48; [2015] 9 BLLR 958 (LC); (2015) 36 ILJ 3086 (LC) (29 July 2015)

The court held that the employer's instruction to work under the new roster, imposed unilaterally without agreement and in the face of a pending dispute referred under section 64(4) of the LRA, was not a reasonable instruction. The employees' refusal to comply did not amount to gross insubordination. The arbitrator misconceived the inquiry by failing to consider the reasonableness of the instruction and by deferring unduly to the employer's sanction. The dismissal was not for a fair reason, and the arbitration award upholding the dismissal was so unreasonable that no reasonable arbitrator could have reached the same conclusion. The award was reviewed and set aside, and compensation...

Citation
[2015] ZALCCT 48
Parties
Applicant: ICHAWU; Applicant: MANQUNYANA, Zimakhaya and 8 others; Respondent: CCMA; Respondent: Commissioner Anele Mgubasi; Respondent: Suid-Kaap Stene Electroplating And Powdercoating CC
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
29 July 2015
Case Number
C 308/13
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Arbitration award reviewed and set aside; replaced with order that dismissal was not for a fair reason and compensation awarded.
Judges
Steenkamp
Legal Topics
Unilateral Change to Terms, Gross Insubordination, Unfair Dismissal, Remedies for Unilateral Change, Compensation for Unfair Dismissal
Labour Law Unilateral Change to Terms Gross Insubordination Unfair Dismissal Remedies for Unilateral Change Compensation for Unfair Dismissal

Case Brief

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Parties

ICHAWU

Applicant

MANQUNYANA, Zimakhaya and 8 others

Applicant

CCMA

Respondent

Commissioner Anele Mgubasi

Respondent

Suid-Kaap Stene Electroplating And Powdercoating CC

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the employer's instruction to work under new terms constituted a reasonable and lawful instruction.
  2. 2 Whether the employees' refusal to comply amounted to gross insubordination.
  3. 3 Whether the dismissal of the employees was substantively fair given the unilateral change to terms and conditions of employment.

Ratio Decidendi

The court held that the employer's instruction to work under the new roster, imposed unilaterally without agreement and in the face of a pending dispute referred under section 64(4) of the LRA, was not a reasonable instruction. The employees' refusal to comply did not amount to gross insubordination. The arbitrator misconceived the inquiry by failing to consider the reasonableness of the instruction and by deferring unduly to the employer's sanction. The dismissal was not for a fair reason, and the arbitration award upholding the dismissal was so unreasonable that no reasonable arbitrator could have reached the same conclusion. The award was reviewed and set aside, and compensation...

Court Disposition

Arbitration award reviewed and set aside; replaced with order that dismissal was not for a fair reason and compensation awarded.

Orders

  • The arbitration award of 11 February 2013 under case number WEGE 2616-12 is reviewed and set aside.
  • The award is replaced with an order that the dismissal of the individual applicants was not for a fair reason.