King & Sons (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (D570/2006) [2008] ZALC 223 (11 July 2008)

King & Sons (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (D570/2006) [2008] ZALC 223 (11 July 2008)

The court found that the arbitrator misdirected himself by failing to properly consider whether the third respondent's conduct amounted to gross negligence under the disciplinary code. The evidence established that the respondent was expected to make a telephone call to the terminal staff on duty, given the serious potential consequences of failing to confirm the amended loading rotation. The respondent's failure to take this obvious and reasonable step, especially in light of his prior final written warning for similar misconduct, undermined the trust essential to the employment relationship. The arbitrator's focus on the absence of a formal rule was misplaced, and his reasoning...

Citation
[2008] ZALC 223
Parties
Applicant: King & Sons (Pty) Limited; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: Paul Shabangu N.O.; Respondent: Rennie Jason Dean
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
11 July 2008
Case Number
D570/2006
Procedural Posture
Review Application / Labour Court Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The third respondent is ordered to pay the costs of the application.
Judges
M Pillemer
Legal Topics
Unfair Dismissal, Gross Negligence, Arbitration Review, Disciplinary Code Interpretation
Labour Law Civil Procedure Unfair Dismissal Gross Negligence Arbitration Review Disciplinary Code Interpretation

Case Brief

Summary, issues, holding and outcome

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Parties

King & Sons (Pty) Limited

Applicant

Commission for Conciliation Mediation and Arbitration

Respondent

Paul Shabangu N.O.

Respondent

Rennie Jason Dean

Respondent

Procedural Posture

Review Application / Labour Court Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator's award finding the dismissal substantively unfair was reasonable under the Sidumo test.
  2. 2 Whether the failure to make a telephone call constituted gross negligence under the workplace disciplinary code.
  3. 3 Whether the sanction of dismissal was fair in the circumstances given the employee's disciplinary history.

Ratio Decidendi

The court found that the arbitrator misdirected himself by failing to properly consider whether the third respondent's conduct amounted to gross negligence under the disciplinary code. The evidence established that the respondent was expected to make a telephone call to the terminal staff on duty, given the serious potential consequences of failing to confirm the amended loading rotation. The respondent's failure to take this obvious and reasonable step, especially in light of his prior final written warning for similar misconduct, undermined the trust essential to the employment relationship. The arbitrator's focus on the absence of a formal rule was misplaced, and his reasoning...

Court Disposition

The arbitration award is reviewed and set aside. The third respondent is ordered to pay the costs of the application.

Orders

  • The award of the Second Respondent under Case No. KNRB216-06 dated 19 July 2006 is hereby reviewed and set aside.
  • The Third Respondent is ordered to pay the costs of the application.