Landsec and Another v Commission for Conciliation Mediation And Arbitration and Others (JR819/07) [2009] ZALCJHB 35 (29 January 2009)

Landsec and Another v Commission for Conciliation Mediation And Arbitration and Others (JR819/07) [2009] ZALCJHB 35 (29 January 2009)

The Court found that the Commissioner correctly identified procedural and substantive unfairness in the dismissal, as the charges were formulated as poor work performance but the evidence and dismissal were based on misconduct. This mismatch rendered the procedure unfair. The Commissioner’s reasoning was supported by the record and the Code of Good Practice. However, the compensation awarded was excessive and not properly reasoned, and the Court corrected the relief to ensure reinstatement without loss of income or benefits, striking out the excessive compensation clauses. The award was made an order of Court, with the correction to the relief granted.

Citation
[2009] ZALCJHB 35
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 Johannesburg
Jurisdiction
South Africa
Judgment Date
29 January 2009
Case Number
JR819/07
Procedural Posture
Review Application / Judgment
Outcome
The arbitration award was reviewed and corrected; excessive compensation clauses were struck out and the employee was ordered to be reinstated without loss of income or benefits. The corrected award was made an order of Court.
Judges
Molahlehi
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Procedural Fairness, Substantive Fairness, Reinstatement, Compensation Calculation
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Procedural Fairness Substantive Fairness Reinstatement Compensation Calculation

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

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 charges against the employee were properly formulated as misconduct or incapacity.
  3. 3 Whether the compensation and reinstatement ordered by the Commissioner were appropriate and within jurisdiction.

Ratio Decidendi

The Court found that the Commissioner correctly identified procedural and substantive unfairness in the dismissal, as the charges were formulated as poor work performance but the evidence and dismissal were based on misconduct. This mismatch rendered the procedure unfair. The Commissioner’s reasoning was supported by the record and the Code of Good Practice. However, the compensation awarded was excessive and not properly reasoned, and the Court corrected the relief to ensure reinstatement without loss of income or benefits, striking out the excessive compensation clauses. The award was made an order of Court, with the correction to the relief granted.

Court Disposition

The arbitration award was reviewed and corrected; excessive compensation clauses were struck out and the employee was ordered to be reinstated without loss of income or benefits. The corrected award was made an order of Court.

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 previous or alternative position, without loss of income or benefits.