Jammin Retail (Pty) Ltd v Mokwane and Others (JR2784/08) [2009] ZALC 130; (2010) 31 ILJ 1420 (LC) ; [2010] 4 BLLR 404 (LC) (22 December 2009)

Jammin Retail (Pty) Ltd v Mokwane and Others (JR2784/08) [2009] ZALC 130; (2010) 31 ILJ 1420 (LC) ; [2010] 4 BLLR 404 (LC) (22 December 2009)

The court held that the commissioner’s finding of procedural unfairness was reasonable and supported by law. In the private sector, abscondment does not automatically terminate employment unless due process is followed. The applicant knew the whereabouts of the employee and contacted her, but failed to arrange a disciplinary hearing before terminating her employment. The principle of fairness and the audi alteram partem rule required the applicant to afford the employee a hearing. The commissioner did not commit a reviewable irregularity, and the review application must fail.

Citation
[2009] ZALC 130
Parties
Applicant: Jammin Retail (Pty) Ltd; Respondent: Noxolo Portia Mokwane; Respondent: The Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner Robert Mudau
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
22 December 2009
Case Number
JR2784/08
Procedural Posture
Review Application / Judgment
Outcome
Application to review the arbitration award is dismissed with costs.
Judges
Molahlehi
Legal Topics
Unfair Dismissal, Abscondment, Procedural Fairness, Disciplinary Hearing
Labour Law Civil Procedure Unfair Dismissal Abscondment Procedural Fairness Disciplinary Hearing

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 6 Party arguments 2
Sign in to unlock

Parties

Jammin Retail (Pty) Ltd

Applicant

Noxolo Portia Mokwane

Respondent

The Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner Robert Mudau

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the commissioner committed a reviewable irregularity in finding the dismissal procedurally unfair.
  2. 2 Whether the applicant was required to hold a disciplinary hearing before terminating the employee's contract for abscondment.
  3. 3 Whether the termination of employment constituted a dismissal or was effected ex contractu.

Ratio Decidendi

The court held that the commissioner’s finding of procedural unfairness was reasonable and supported by law. In the private sector, abscondment does not automatically terminate employment unless due process is followed. The applicant knew the whereabouts of the employee and contacted her, but failed to arrange a disciplinary hearing before terminating her employment. The principle of fairness and the audi alteram partem rule required the applicant to afford the employee a hearing. The commissioner did not commit a reviewable irregularity, and the review application must fail.

Court Disposition

Application to review the arbitration award is dismissed with costs.

Orders

  • The applicant’s application to review the arbitration award of the third respondent is dismissed with costs.