Keypak (Pty) Ltd v Potgieter NO and Others (P550/2012) [2015] ZALCPE 57 (18 September 2015)

Keypak (Pty) Ltd v Potgieter NO and Others (P550/2012) [2015] ZALCPE 57 (18 September 2015)

The commissioner correctly found that the third respondent failed to meet the performance standard set by the applicant, and that his work performance was poor. However, the commissioner erred in finding the dismissal substantively unfair, as this conclusion was inconsistent with the evidence and the guidelines in item 8(1)(j) of Schedule 8 to the LRA, which allow for less compelling reasons for dismissal during probation. The applicant's failure to provide training affected only the procedural fairness of the dismissal, not its substantive fairness. Therefore, the dismissal was substantively fair but procedurally unfair. The compensation awarded by the commissioner was excessive given...

Citation
[2015] ZALCPE 57
Parties
Applicant: Keypak (Pty) Ltd; Respondent: Potgieter, T N.O.; Respondent: The Commission for Conciliation, Mediation and Arbitration; Respondent: Heynsen, Jerome
Court
Labour Court Port Elizabeth
Jurisdiction
South Africa
Judgment Date
18 September 2015
Case Number
P550/2012
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The third respondent's dismissal was substantively fair but procedurally unfair. Compensation is reduced to two months' remuneration.
Judges
Lallie
Legal Topics
Unfair Dismissal, Probationary Employment, Compensation for Unfair Dismissal, Review of Arbitration Award
Labour Law Civil Procedure Unfair Dismissal Probationary Employment Compensation for Unfair Dismissal Review of Arbitration Award

Case Brief

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Parties

Keypak (Pty) Ltd

Applicant

Potgieter, T N.O.

Respondent

The Commission for Conciliation, Mediation and Arbitration

Respondent

Heynsen, Jerome

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitration award finding the dismissal substantively and procedurally unfair was reasonable.
  2. 2 Whether the applicant's failure to provide training affected the substantive or procedural fairness of the dismissal.
  3. 3 What compensation is just and equitable for procedural unfairness in dismissal during probation.

Ratio Decidendi

The commissioner correctly found that the third respondent failed to meet the performance standard set by the applicant, and that his work performance was poor. However, the commissioner erred in finding the dismissal substantively unfair, as this conclusion was inconsistent with the evidence and the guidelines in item 8(1)(j) of Schedule 8 to the LRA, which allow for less compelling reasons for dismissal during probation. The applicant's failure to provide training affected only the procedural fairness of the dismissal, not its substantive fairness. Therefore, the dismissal was substantively fair but procedurally unfair. The compensation awarded by the commissioner was excessive given...

Court Disposition

The arbitration award is reviewed and set aside. The third respondent's dismissal was substantively fair but procedurally unfair. Compensation is reduced to two months' remuneration.

Orders

  • Condonation of the late filing of the review application is granted.
  • The arbitration award issued by the first respondent is reviewed and set aside and substituted.