Kekanan v Nedzamba N.O. and Others (C 410/2020) [2022] ZALCCT 57 (10 October 2022)

Kekanan v Nedzamba N.O. and Others (C 410/2020) [2022] ZALCCT 57 (10 October 2022)

The arbitrator erred in finding that the dismissal was procedurally fair. The chairperson was aware of the applicant's illness prior to the disciplinary enquiry but failed to postpone the hearing, proceeding in absentia. The arbitrator's reliance on the discredited 'no difference' principle and his scepticism regarding the medical certificates were unjustified. The applicant was denied a fair opportunity to present his case or mitigating factors. Although the misconduct was serious and the applicant did not contest substantive fairness at arbitration, procedural fairness required that he be given at least one further opportunity to defend himself. The appropriate remedy is nominal...

Citation
[2022] ZALCCT 57
Parties
Applicant: Sakhumzi Kekanan; Respondent: Justice Nedzamba (N.O.); Respondent: General Public Service Sectoral Bargaining Council; Respondent: Department of Correctional Services
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
10 October 2022
Case Number
C 410/2020
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Review application granted; arbitration award set aside and substituted.
Judges
Lagrange
Legal Topics
Procedural Fairness, Disciplinary Enquiry, Compensation for Unfair Dismissal, Condonation of Late Filing
Labour Law Procedural Fairness Disciplinary Enquiry Compensation for Unfair Dismissal Condonation of Late Filing

Case Brief

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Parties

Sakhumzi Kekanan

Applicant

Justice Nedzamba (N.O.)

Respondent

General Public Service Sectoral Bargaining Council

Respondent

Department of Correctional Services

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Was the applicant's dismissal procedurally unfair due to the disciplinary enquiry proceeding in absentia despite illness?
  2. 2 Did the arbitrator err in applying the 'no difference' principle and in his assessment of the medical certificates?
  3. 3 Is the applicant entitled to compensation for procedural unfairness?

Ratio Decidendi

The arbitrator erred in finding that the dismissal was procedurally fair. The chairperson was aware of the applicant's illness prior to the disciplinary enquiry but failed to postpone the hearing, proceeding in absentia. The arbitrator's reliance on the discredited 'no difference' principle and his scepticism regarding the medical certificates were unjustified. The applicant was denied a fair opportunity to present his case or mitigating factors. Although the misconduct was serious and the applicant did not contest substantive fairness at arbitration, procedural fairness required that he be given at least one further opportunity to defend himself. The appropriate remedy is nominal...

Court Disposition

Review application granted; arbitration award set aside and substituted.

Orders

  • The late filing of the review application is condoned.
  • The arbitrator's finding in respect of the applicant is reviewed and set aside and substituted with a finding of procedural unfairness and an order for compensation of one month's remuneration, calculated on the salary at the date of dismissal.