Khanya and others v Cohen and Others (JR1379/01) [2003] ZALC 27; (2003) 24 ILJ 1401 (LC); [2003] 8 BLLR 758 (LC) (18 March 2003)

Khanya and others v Cohen and Others (JR1379/01) [2003] ZALC 27; (2003) 24 ILJ 1401 (LC); [2003] 8 BLLR 758 (LC) (18 March 2003)

The court found that the arbitrator failed to apply his mind to the appropriateness of the penalty imposed on the applicants. The arbitrator did not consider compelling mitigating factors, including the applicants' exhaustion, lack of guidance from superiors, and the extraordinary nature of the incident. The evidence showed that the applicants continued to render trustworthy service after the incident and received no instructions from their employer. The arbitrator's omission to consider these factors constituted a gross irregularity. Consequently, the matter was referred back for reconsideration of the appropriate penalty.

Citation
[2003] ZALC 27
Parties
Applicant: Xolani Khanya; Applicant: Jabulani Dmadi; Applicant: Meshack Ramsey; Applicant: Lucky Siwundla; Respondent: Phillip Cohen; Respondent: Sectorial Bargaining; Respondent: Minister of Home Affairs
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
18 March 2003
Case Number
JR1379/01
Procedural Posture
Review Application / Judgment
Outcome
The review succeeded. The matter was referred back to the third respondent for determination of an appropriate penalty. Costs were awarded to the applicants.
Judges
Pillay
Legal Topics
Unfair Dismissal, Disciplinary Procedure, Sanction Appropriateness, Review of Arbitration
Labour Law Unfair Dismissal Disciplinary Procedure Sanction Appropriateness Review of Arbitration

Case Brief

Summary, issues, holding and outcome

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Parties

Xolani Khanya

Applicant

Jabulani Dmadi

Applicant

Meshack Ramsey

Applicant

Lucky Siwundla

Applicant

Phillip Cohen

Respondent

Sectorial Bargaining

Respondent

Minister of Home Affairs

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitrator failed to apply his mind to the appropriateness of the sanction imposed on the applicants.
  2. 2 Whether the dismissal of the applicants was an appropriate and fair sanction under the circumstances.
  3. 3 Whether the arbitrator committed gross irregularities in his award.

Ratio Decidendi

The court found that the arbitrator failed to apply his mind to the appropriateness of the penalty imposed on the applicants. The arbitrator did not consider compelling mitigating factors, including the applicants' exhaustion, lack of guidance from superiors, and the extraordinary nature of the incident. The evidence showed that the applicants continued to render trustworthy service after the incident and received no instructions from their employer. The arbitrator's omission to consider these factors constituted a gross irregularity. Consequently, the matter was referred back for reconsideration of the appropriate penalty.

Court Disposition

The review succeeded. The matter was referred back to the third respondent for determination of an appropriate penalty. Costs were awarded to the applicants.

Orders

  • Paragraph 1 and 2 of the amended notice of motion are granted.
  • The matter is referred back to the third respondent for determination of an appropriate penalty.