Jorgensen v I Kat Computing (Pty) Ltd and Others (DA10/16) [2017] ZALAC 70; [2018] 3 BLLR 254 (LAC); (2018) 39 ILJ 785 (LAC) (21 November 2017)

Jorgensen v I Kat Computing (Pty) Ltd and Others (DA10/16) [2017] ZALAC 70; [2018] 3 BLLR 254 (LAC); (2018) 39 ILJ 785 (LAC) (21 November 2017)

The Labour Appeal Court held that the dismissal of the appellant for gross insubordination was substantively unfair, as the disciplinary chairperson did not recommend dismissal for poor work performance and the company proceeded to dismiss the appellant on grounds not established at the internal hearing. The compensation awarded by the commissioner was excessive, as it did not reflect the actual loss suffered by the appellant, who was on a fixed-term contract with five months remaining. The Labour Court's order remitting the poor work performance dispute for arbitration was found to be incompetent, as it would subject the appellant to double jeopardy and allow the employer to appeal the...

Citation
[2017] ZALAC 70
Parties
Appellant: Barry Jorgensen; Respondent: I Kat Computing (Pty) Ltd; Respondent: Commissioner Richard Lyster; Respondent: Commission for Conciliation, Mediation and Arbitration
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
21 November 2017
Case Number
DA 10/16
Procedural Posture
Labour Appeal / Appeal From Labour Court Judgment and Order Reviewing Arbitration Award
Outcome
Appeal upheld, cross-appeal dismissed. Labour Court's order set aside. Dismissal found substantively unfair. Compensation reduced to R92,075. No order as to costs in Labour Court; respondent to pay costs of appeal.
Judges
Tlaletsi DJP, Landman JA, Phatshoane AJA
Legal Topics
Unfair Dismissal, Poor Work Performance, Gross Insubordination, Compensation, Arbitration Review
Labour Law Unfair Dismissal Poor Work Performance Gross Insubordination Compensation Arbitration Review

Case Brief

Summary, issues, holding and outcome

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Parties

Barry Jorgensen

Appellant

I Kat Computing (Pty) Ltd

Respondent

Commissioner Richard Lyster

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Procedural Posture

Labour Appeal / Appeal From Labour Court Judgment and Order Reviewing Arbitration Award

Legal Issues

  1. 1 Whether the dismissal of the appellant for gross insubordination and poor work performance was substantively and procedurally fair.
  2. 2 Whether the commissioner erred in refusing to arbitrate the poor work performance aspect of the dismissal.
  3. 3 Whether the compensation awarded exceeded the actual loss suffered by the appellant.

Ratio Decidendi

The Labour Appeal Court held that the dismissal of the appellant for gross insubordination was substantively unfair, as the disciplinary chairperson did not recommend dismissal for poor work performance and the company proceeded to dismiss the appellant on grounds not established at the internal hearing. The compensation awarded by the commissioner was excessive, as it did not reflect the actual loss suffered by the appellant, who was on a fixed-term contract with five months remaining. The Labour Court's order remitting the poor work performance dispute for arbitration was found to be incompetent, as it would subject the appellant to double jeopardy and allow the employer to appeal the...

Court Disposition

Appeal upheld, cross-appeal dismissed. Labour Court's order set aside. Dismissal found substantively unfair. Compensation reduced to R92,075. No order as to costs in Labour Court; respondent to pay costs of appeal.

Orders

  • The appeal is upheld and the cross-appeal is dismissed.
  • The order of the Labour Court is set aside and replaced with: (i) The dismissal of the applicant by the respondent is found to have been substantively unfair; (ii) The respondent is to pay the appellant an amount of R92,075 being five times the difference between what the appellant earned and what he would have...