Intercape Ferreira Mainliner (Pty) Ltd v Mcwade and Others (JR158/17) [2019] ZALCJHB 274; (2020) 41 ILJ 208 (LC); [2020] 2 BLLR 199 (LC) (18 September 2019)

Intercape Ferreira Mainliner (Pty) Ltd v Mcwade and Others (JR158/17) [2019] ZALCJHB 274; (2020) 41 ILJ 208 (LC); [2020] 2 BLLR 199 (LC) (18 September 2019)

The court found that the arbitrator failed to ask the correct question, namely whether the employee was obliged to disclose the facts surrounding the mutually agreed termination of his employment with Cargo Carriers. Given the seniority of the position and the materiality of the circumstances, the employee's failure to disclose was a serious act of misconduct. The arbitrator's award was both incorrect in law and unreasonable, as any reasonable employer would have considered the undisclosed facts material to the decision to appoint. The court substituted the arbitrator's award with a finding that the dismissal was substantively and procedurally fair.

Citation
[2019] ZALCJHB 274
Parties
Applicant: Intercape Ferreira Mainliner (Pty) Ltd; Respondent: Rory Mark Mcwade; Respondent: The Commission for Conciliation, Mediation and Arbitration; Respondent: Eveline Molefe N.O.
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
18 September 2019
Case Number
JR158/17
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Arbitration award set aside and substituted with a finding that the dismissal was substantively and procedurally fair. Costs awarded against the employee, limited to 20% of the applicant's taxed costs.
Judges
Van Niekerk
Legal Topics
Dismissal for Non Disclosure, Materiality of Non Disclosure, Review of Arbitration Award, Procedural Fairness, Substantive Fairness
Labour Law Dismissal for Non Disclosure Materiality of Non Disclosure Review of Arbitration Award Procedural Fairness Substantive Fairness

Case Brief

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Parties

Intercape Ferreira Mainliner (Pty) Ltd

Applicant

Rory Mark Mcwade

Respondent

The Commission for Conciliation, Mediation and Arbitration

Respondent

Eveline Molefe N.O.

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether an employee applying for a senior position is obliged to disclose material facts surrounding the termination of previous employment.
  2. 2 Whether the failure to disclose such facts constitutes misconduct justifying dismissal.
  3. 3 Whether the arbitrator's award was reasonable and correct in law.

Ratio Decidendi

The court found that the arbitrator failed to ask the correct question, namely whether the employee was obliged to disclose the facts surrounding the mutually agreed termination of his employment with Cargo Carriers. Given the seniority of the position and the materiality of the circumstances, the employee's failure to disclose was a serious act of misconduct. The arbitrator's award was both incorrect in law and unreasonable, as any reasonable employer would have considered the undisclosed facts material to the decision to appoint. The court substituted the arbitrator's award with a finding that the dismissal was substantively and procedurally fair.

Court Disposition

Arbitration award set aside and substituted with a finding that the dismissal was substantively and procedurally fair. Costs awarded against the employee, limited to 20% of the applicant's taxed costs.

Orders

  • The arbitration award issued by the third respondent under case number GATW 8726/16 on 16 January 2016 is reviewed and set aside.
  • The arbitration award is substituted by the following: 'The applicant's dismissal was substantively and procedurally fair'.