Jonas v Commission for Conciliation, Mediation and Arbitration and Others (PR68/2014) [2016] ZALCPE 17; [2016] 12 BLLR 1222 (LC); (2017) 38 ILJ 376 (LC) (9 September 2016)

Jonas v Commission for Conciliation, Mediation and Arbitration and Others (PR68/2014) [2016] ZALCPE 17; [2016] 12 BLLR 1222 (LC); (2017) 38 ILJ 376 (LC) (9 September 2016)

The Labour Court found that the arbitrator misapplied the test for non-reinstatement by relying on section 193(2)(b) instead of section 193(2)(a), and failed to provide sufficient objective reasons for finding reinstatement intolerable. The evidence did not support a breakdown of the employment relationship sufficient to displace reinstatement as the primary remedy. The arbitrator's refusal to reinstate was unreasonable and must be set aside. The compensation quantum was also incorrectly calculated and required correction. The applicant is entitled to reinstatement with retrospective effect and costs against the third and fourth respondents.

Citation
[2016] ZALCPE 17
Parties
Applicant: Phumulele Jonas; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Edgar Mquqo N.O.; Respondent: South African Social Development Agency; Respondent: Minister of Social Development
Court
Labour Court Port Elizabeth
Jurisdiction
South Africa
Judgment Date
9 September 2016
Case Number
PR68/2014
Procedural Posture
Review Application / Labour Court Review of Arbitration Award
Outcome
Arbitration award reviewed and set aside; applicant reinstated with retrospective effect; costs awarded against third and fourth respondents.
Judges
Lagrange
Legal Topics
Unfair Dismissal, Reinstatement, Compensation Quantum, Intolerability, Section 193 Lra
Labour Law Unfair Dismissal Reinstatement Compensation Quantum Intolerability Section 193 Lra

Case Brief

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Parties

Phumulele Jonas

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Edgar Mquqo N.O.

Respondent

South African Social Development Agency

Respondent

Minister of Social Development

Respondent

Procedural Posture

Review Application / Labour Court Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator committed a reviewable irregularity by refusing reinstatement as the primary remedy for substantively unfair dismissal.
  2. 2 Whether the arbitrator erred in calculating the quantum of compensation based on an incorrect salary figure.
  3. 3 Whether the employment relationship had become intolerable so as to justify non-reinstatement under section 193(2) of the LRA.

Ratio Decidendi

The Labour Court found that the arbitrator misapplied the test for non-reinstatement by relying on section 193(2)(b) instead of section 193(2)(a), and failed to provide sufficient objective reasons for finding reinstatement intolerable. The evidence did not support a breakdown of the employment relationship sufficient to displace reinstatement as the primary remedy. The arbitrator's refusal to reinstate was unreasonable and must be set aside. The compensation quantum was also incorrectly calculated and required correction. The applicant is entitled to reinstatement with retrospective effect and costs against the third and fourth respondents.

Court Disposition

Arbitration award reviewed and set aside; applicant reinstated with retrospective effect; costs awarded against third and fourth respondents.

Orders

  • The third respondent must reinstate the applicant with retrospective effect to the date of his dismissal on 20 May 2013 within 14 days of the date of this order on the same terms and conditions that governed his employment on the date of dismissal.
  • Paragraph 143 of the arbitration award remains unchanged save that it is renumbered as paragraph 142 of the award.