Landsec and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR 819/07) [2009] ZALC 12 (29 January 2009)

Landsec and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR 819/07) [2009] ZALC 12 (29 January 2009)

The Court found that the Commissioner correctly distinguished between misconduct and incapacity, noting that the charges against the employee were formulated as poor work performance but the evidence led related to misconduct. The procedural unfairness arose from the use of the incorrect procedure for dismissal. The substantive unfairness was established because the employee was dismissed for reasons not properly brought to his attention or charged. The Commissioner’s conclusion that the dismissal was both procedurally and substantively unfair was reasonable and supported by the record. However, the relief granted by the Commissioner was inappropriate and not properly reasoned. The Court...

Citation
[2009] ZALC 12
Parties
Applicant: Landsec; Applicant: Toronto House CC; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner Bonge Masot N.O.; Respondent: Theophilus Ndimande
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
29 January 2009
Case Number
JR 819/07
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award was reviewed and corrected; excessive compensation was struck out and reinstatement without loss of income or benefits was ordered.
Judges
molahlehi
Legal Topics
Unfair Dismissal, Arbitration Review, Compensation, Reinstatement, Procedural Fairness, Substantive Fairness
Labour Law Civil Procedure Unfair Dismissal Arbitration Review Compensation Reinstatement Procedural Fairness Substantive Fairness

Case Brief

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Parties

Landsec

Applicant

Toronto House CC

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner Bonge Masot N.O.

Respondent

Theophilus Ndimande

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitration award finding the dismissal of the employee to be procedurally and substantively unfair was reviewable.
  2. 2 Whether the Commissioner applied the correct legal principles in distinguishing between misconduct and incapacity.
  3. 3 Whether the compensation and reinstatement orders were appropriate and within the jurisdiction of the CCMA.

Ratio Decidendi

The Court found that the Commissioner correctly distinguished between misconduct and incapacity, noting that the charges against the employee were formulated as poor work performance but the evidence led related to misconduct. The procedural unfairness arose from the use of the incorrect procedure for dismissal. The substantive unfairness was established because the employee was dismissed for reasons not properly brought to his attention or charged. The Commissioner’s conclusion that the dismissal was both procedurally and substantively unfair was reasonable and supported by the record. However, the relief granted by the Commissioner was inappropriate and not properly reasoned. The Court...

Court Disposition

The arbitration award was reviewed and corrected; excessive compensation was struck out and reinstatement without loss of income or benefits was ordered.

Orders

  • Clauses 7.2 and 7.3 of the arbitration award are struck out.
  • Clauses 7.4 and 7.5 are substituted with an order for reinstatement of Mr Ndimande to his position or an alternative position, retrospectively, without loss of income or benefits.