Kelly Group Ltd v Khanyile and Others (D 28/11) [2013] ZALCD 1; (2013) 23 ILJ 2035 (LC) (23 January 2013)

Kelly Group Ltd v Khanyile and Others (D 28/11) [2013] ZALCD 1; (2013) 23 ILJ 2035 (LC) (23 January 2013)

The court found that the arbitrator misdirected himself on both the substantive and procedural fairness of the dismissal. The evidence established that Khanyile was guilty of unauthorised absence and failed to comply with company leave procedures, and her disregard for instructions to return to work was a serious aggravating factor. The arbitrator's reliance on formalistic procedural standards was incorrect; the Labour Relations Act requires only an investigation and opportunity to respond, not a criminal trial. The only material procedural irregularity was the chairperson's private enquiry with the training provider in Khanyile's absence, which did not justify the gravity of the...

Citation
[2013] ZALCD 1
Parties
Applicant: Kelly Group Ltd; Respondent: Busisiwe Moira Khanyile; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: A B Ngcobo (n.o.)
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
23 January 2013
Case Number
D 28/11
Procedural Posture
Review Application / Judgment
Outcome
The award of six months' compensation is set aside and substituted with an order for one and a half months' remuneration. The finding of substantive unfairness is replaced with a finding of substantive fairness.
Judges
R Lagrange
Legal Topics
Unfair Dismissal, Procedural Fairness, Progressive Discipline, Compensation Award, Internal Disciplinary Enquiry
Labour Law Civil Procedure Unfair Dismissal Procedural Fairness Progressive Discipline Compensation Award Internal Disciplinary Enquiry

Case Brief

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Parties

Kelly Group Ltd

Applicant

Busisiwe Moira Khanyile

Respondent

Commission for Conciliation Mediation and Arbitration

Respondent

A B Ngcobo (n.o.)

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the dismissal of the first respondent for unauthorised absence and failure to follow leave procedures was substantively and procedurally fair.
  2. 2 Whether the arbitrator's award of six months' compensation was justified given the procedural irregularities found.
  3. 3 Whether the conduct of the disciplinary enquiry chairperson amounted to procedural unfairness warranting increased compensation.

Ratio Decidendi

The court found that the arbitrator misdirected himself on both the substantive and procedural fairness of the dismissal. The evidence established that Khanyile was guilty of unauthorised absence and failed to comply with company leave procedures, and her disregard for instructions to return to work was a serious aggravating factor. The arbitrator's reliance on formalistic procedural standards was incorrect; the Labour Relations Act requires only an investigation and opportunity to respond, not a criminal trial. The only material procedural irregularity was the chairperson's private enquiry with the training provider in Khanyile's absence, which did not justify the gravity of the...

Court Disposition

The award of six months' compensation is set aside and substituted with an order for one and a half months' remuneration. The finding of substantive unfairness is replaced with a finding of substantive fairness.

Orders

  • The finding that the first respondent's dismissal was substantively unfair is set aside and substituted with a finding of substantive fairness.
  • The award of six months' remuneration as compensation is set aside and substituted with an order that the applicant must pay the first respondent an amount equivalent to one and a half months' remuneration, being eighteen thousand rands (R 18,000.00), within 30 days of the judgment.