Ivan v National Commissioner, SAPS and Others (C177/2008) [2009] ZALCCT 4 (12 January 2009)

Ivan v National Commissioner, SAPS and Others (C177/2008) [2009] ZALCCT 4 (12 January 2009)

The court found that the arbitrator committed material misdirections by confusing the charges on which the applicant was found guilty, failing to properly consider the nature and seriousness of the misconduct, and neglecting to assess prior infractions relevant to the sanction. The arbitrator's reliance on the applicant's long service as a justification for dismissal was incorrect, as long service is a mitigating factor. The arbitration was limited to the disciplinary record, which was insufficient to make a clear finding on the appropriate charge and sanction. Consequently, the award was unreasonable and unjustifiable, warranting review and setting aside. The matter was remitted for a de...

Citation
[2009] ZALCCT 4
Parties
Applicant: Myers, Ivan; Respondent: National Commissioner, SAPS; Respondent: Safety and Security Sectoral Bargaining Council; Respondent: De Kock, C
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
12 January 2009
Case Number
C177/2008
Procedural Posture
Review Application / Judgment
Outcome
The arbitration award was reviewed and set aside. The matter was remitted for a de novo hearing before a different commissioner. Costs were awarded against the first respondent.
Judges
Ngalwana AJ
Legal Topics
Unfair Dismissal, Arbitration Review, Disciplinary Procedure, Code of Good Practice, Procedural Fairness
Labour Law Unfair Dismissal Arbitration Review Disciplinary Procedure Code of Good Practice Procedural Fairness

Case Brief

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Parties

Myers, Ivan

Applicant

National Commissioner, SAPS

Respondent

Safety and Security Sectoral Bargaining Council

Respondent

De Kock, C

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitration award dismissing the applicant was reviewable under section 145 of the Labour Relations Act.
  2. 2 Whether the arbitrator committed a material misdirection regarding the charges and sanction.
  3. 3 Whether the disciplinary process and sanction were fair and reasonable in light of the evidence and prior infractions.

Ratio Decidendi

The court found that the arbitrator committed material misdirections by confusing the charges on which the applicant was found guilty, failing to properly consider the nature and seriousness of the misconduct, and neglecting to assess prior infractions relevant to the sanction. The arbitrator's reliance on the applicant's long service as a justification for dismissal was incorrect, as long service is a mitigating factor. The arbitration was limited to the disciplinary record, which was insufficient to make a clear finding on the appropriate charge and sanction. Consequently, the award was unreasonable and unjustifiable, warranting review and setting aside. The matter was remitted for a de...

Court Disposition

The arbitration award was reviewed and set aside. The matter was remitted for a de novo hearing before a different commissioner. Costs were awarded against the first respondent.

Orders

  • The third respondent’s arbitration award dated 3 March 2008 under case number PSSS444-07/08 is reviewed and set aside.
  • The matter is remitted to the second respondent for a de novo hearing on an urgent basis before a commissioner other than the third respondent.