Madywabe v van der Merwe and Others (JR 2999/07) [2012] ZALCJHB 182 (10 October 2012)

Madywabe v van der Merwe and Others (JR 2999/07) [2012] ZALCJHB 182 (10 October 2012)

The court found that the arbitrator's conclusion—that the applicant knew or ought to have known about the pending disciplinary hearing and failed to disclose it—was reasonable and supported by the evidence. The disciplinary hearing was postponed, not withdrawn, and the applicant was informed she would be notified if it proceeded. The applicant was given an opportunity to make representations before her promotion was withdrawn. The arbitrator was justified in finding that the withholding of information was not bona fide and that the employer's reliance on the relevant instruction was proper. The review application was dismissed as there was no basis to interfere with the arbitrator's award.

Citation
[2012] ZALCJHB 182
Parties
Applicant: Tenjiwe Madywabe; Respondent: F. van der Merwe; Respondent: Safety and Security Sectoral Bargaining Council; Respondent: Minister of Safety and Security; Respondent: South African Police Service Commissioner
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
10 October 2012
Case Number
JR 2999/07
Procedural Posture
Review Application / Judgment
Outcome
Application to review dismissed with costs awarded against the applicant.
Judges
AC Basson
Legal Topics
Unfair Labour Practice, Promotion Withdrawal, Disciplinary Proceedings, Review of Arbitration Award
Labour Law Unfair Labour Practice Promotion Withdrawal Disciplinary Proceedings Review of Arbitration Award

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 2 Party arguments 2
Sign in to unlock

Parties

Tenjiwe Madywabe

Applicant

F. van der Merwe

Respondent

Safety and Security Sectoral Bargaining Council

Respondent

Minister of Safety and Security

Respondent

South African Police Service Commissioner

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the employer committed an unfair labour practice by withdrawing the applicant's promotion due to non-disclosure of pending disciplinary proceedings.
  2. 2 Whether the arbitrator's award dismissing the applicant's claim is reviewable on grounds of irrationality or unjustifiability.

Ratio Decidendi

The court found that the arbitrator's conclusion—that the applicant knew or ought to have known about the pending disciplinary hearing and failed to disclose it—was reasonable and supported by the evidence. The disciplinary hearing was postponed, not withdrawn, and the applicant was informed she would be notified if it proceeded. The applicant was given an opportunity to make representations before her promotion was withdrawn. The arbitrator was justified in finding that the withholding of information was not bona fide and that the employer's reliance on the relevant instruction was proper. The review application was dismissed as there was no basis to interfere with the arbitrator's award.

Court Disposition

Application to review dismissed with costs awarded against the applicant.

Orders

  • The application to review is dismissed.
  • The applicant is ordered to pay the costs.