Lubbe v Roop NO and Others (JR1303/09) [2011] ZALCJHB 261 (13 May 2011)

Lubbe v Roop NO and Others (JR1303/09) [2011] ZALCJHB 261 (13 May 2011)

The Labour Court found that the arbitrator committed a reviewable error by awarding compensation instead of reinstatement for the applicant's unfair dismissal. The arbitrator's conclusion that reinstatement was intolerable was based solely on allegations made by the applicant's representative and not on evidence from the employer. There was no direct evidence of a breakdown in trust or workplace changes that would justify denying reinstatement. The arbitrator also failed to consider the applicant's long service and the impact of reinstatement versus compensation. The court held that the primary remedy for substantively unfair dismissal is reinstatement unless there is clear evidence to...

Citation
[2011] ZALCJHB 261
Parties
Applicant: Frederick henry Lubbe; Respondent: PRAHASH ROOP (N.O.); Respondent: SAPS; Respondent: SAFETY AND SECURITY BARGAINING COUNCIL
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
13 May 2011
Case Number
JR1303/09
Procedural Posture
Review Application / Labour Court Review of Arbitration Award
Outcome
The review application succeeds. The arbitrator's award of compensation is set aside and substituted with an order of reinstatement with retrospective effect and backpay.
Judges
Lagrange
Legal Topics
Unfair Dismissal, Reinstatement, Breakdown of Trust, Compensation, Arbitration Review
Labour Law Civil Procedure Unfair Dismissal Reinstatement Breakdown of Trust Compensation Arbitration Review

Case Brief

Summary, issues, holding and outcome

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Parties

Frederick henry Lubbe

Applicant

PRAHASH ROOP (N.O.)

Respondent

SAPS

Respondent

SAFETY AND SECURITY BARGAINING COUNCIL

Respondent

Procedural Posture

Review Application / Labour Court Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator committed a reviewable error by awarding compensation instead of reinstatement for unfair dismissal.
  2. 2 Whether there was sufficient evidence to justify the conclusion that reinstatement was intolerable due to breakdown of trust.
  3. 3 Whether the length of absence from the workplace justified denying reinstatement.

Ratio Decidendi

The Labour Court found that the arbitrator committed a reviewable error by awarding compensation instead of reinstatement for the applicant's unfair dismissal. The arbitrator's conclusion that reinstatement was intolerable was based solely on allegations made by the applicant's representative and not on evidence from the employer. There was no direct evidence of a breakdown in trust or workplace changes that would justify denying reinstatement. The arbitrator also failed to consider the applicant's long service and the impact of reinstatement versus compensation. The court held that the primary remedy for substantively unfair dismissal is reinstatement unless there is clear evidence to...

Court Disposition

The review application succeeds. The arbitrator's award of compensation is set aside and substituted with an order of reinstatement with retrospective effect and backpay.

Orders

  • The first respondent's finding that compensation of 10 months' remuneration is appropriate relief is reviewed and set aside.
  • The finding on appropriate relief is substituted with an order that the second respondent must reinstate the applicant with retrospective effect, including backpay until the date of dismissal on 20 December 2004.