IDWU obo Linda and Others v Super Group and Others (JA19/2015) [2017] ZALAC 17; (2017) 38 ILJ 1292 (LAC); [2017] 10 BLLR 969 (LAC) (28 February 2017)

IDWU obo Linda and Others v Super Group and Others (JA19/2015) [2017] ZALAC 17; (2017) 38 ILJ 1292 (LAC); [2017] 10 BLLR 969 (LAC) (28 February 2017)

The Labour Appeal Court found that, despite the inadequacies of the reconstructed record, it was sufficient to adjudicate the dispute given the parties' wishes and the long delay since the events. The arbitrator's preference for the employees' version was unreasonable and unsupported by the evidence, which indicated that the employees deserted their posts. The disciplinary hearing minute and contemporaneous emails provided a formidable case for the employer. However, the sanction of dismissal was disproportionate given the employees' personal circumstances, low wages, and lack of consideration for their predicament. The appropriate sanction was a final written warning, and compensation...

Citation
[2017] ZALAC 17
Parties
Appellant: IDWU obo Cyril Linda and 4 Others; Respondent: Super Group; Respondent: W M Rafeleta N.O.; Respondent: National Bargaining Council for the Freight Industry
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
28 February 2017
Case Number
JA19/2015
Procedural Posture
Civil Appeal / Appeal From Labour Court Judgment and Review of Arbitration Award
Outcome
Appeal upheld in part and dismissed in part. The Labour Court judgment and arbitrator's award are set aside. Employees declared guilty of desertion, but dismissal was inappropriate and unfair. Compensation awarded.
Judges
Tlaletsi, Davis, Sutherland
Legal Topics
Unfair Dismissal, Desertion, Sanction of Dismissal, Compensation, Reconstruction of Record
Labour Law Civil Procedure Unfair Dismissal Desertion Sanction of Dismissal Compensation Reconstruction of Record

Case Brief

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Parties

IDWU obo Cyril Linda and 4 Others

Appellant

Super Group

Respondent

W M Rafeleta N.O.

Respondent

National Bargaining Council for the Freight Industry

Respondent

Procedural Posture

Civil Appeal / Appeal From Labour Court Judgment and Review of Arbitration Award

Legal Issues

  1. 1 Whether the reconstructed record of arbitration is adequate for adjudication of the dispute.
  2. 2 Whether the arbitrator's award finding the dismissals unfair was one to which no reasonable arbitrator could have come.
  3. 3 Whether the sanction of dismissal for desertion was appropriate and fair.

Ratio Decidendi

The Labour Appeal Court found that, despite the inadequacies of the reconstructed record, it was sufficient to adjudicate the dispute given the parties' wishes and the long delay since the events. The arbitrator's preference for the employees' version was unreasonable and unsupported by the evidence, which indicated that the employees deserted their posts. The disciplinary hearing minute and contemporaneous emails provided a formidable case for the employer. However, the sanction of dismissal was disproportionate given the employees' personal circumstances, low wages, and lack of consideration for their predicament. The appropriate sanction was a final written warning, and compensation...

Court Disposition

Appeal upheld in part and dismissed in part. The Labour Court judgment and arbitrator's award are set aside. Employees declared guilty of desertion, but dismissal was inappropriate and unfair. Compensation awarded.

Orders

  • The appeal is upheld in part and dismissed in part.
  • The judgment of the Labour Court is set aside.