Makhenkaya v South African Local Government Bargaining Council (C15/2015) [2017] ZALCCT 45 (11 October 2017)

Makhenkaya v South African Local Government Bargaining Council (C15/2015) [2017] ZALCCT 45 (11 October 2017)

The court found no basis to interfere with the arbitrator's award. The arbitrator's findings on credibility and the probabilities of the evidence were reasonable. The applicant's version was inherently improbable and contradicted by his own witness. The complainant's evidence was corroborated by her written statement, her sister, and her manager. The arbitrator properly considered whether dismissal was an appropriate sanction. The review application amounted to an impermissible appeal on factual findings and did not meet the threshold for review under section 145(2)(a) of the LRA. The award was reasonable and carefully considered.

Citation
[2017] ZALCCT 45
Parties
Applicant: Zandisile Makhenkaya; Respondent: South African Local Government Bargaining Council; Respondent: Zola Madotyeni NO; Respondent: City of Cape Town
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
11 October 2017
Case Number
C15/2015
Procedural Posture
Review Application / Judgment
Outcome
The review application is dismissed.
Judges
Rabkin-Naicker
Legal Topics
Review of Arbitration Award, Unfair Dismissal, Sexual Harassment, Credibility of Witnesses
Labour Law Review of Arbitration Award Unfair Dismissal Sexual Harassment Credibility of Witnesses

Case Brief

Summary, issues, holding and outcome

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Parties

Zandisile Makhenkaya

Applicant

South African Local Government Bargaining Council

Respondent

Zola Madotyeni NO

Respondent

City of Cape Town

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitration award dismissing the applicant was reasonable and susceptible to review.
  2. 2 Whether the arbitrator erred in accepting the complainant's version over the applicant's.
  3. 3 Whether the sanction of dismissal was appropriate given the evidence.

Ratio Decidendi

The court found no basis to interfere with the arbitrator's award. The arbitrator's findings on credibility and the probabilities of the evidence were reasonable. The applicant's version was inherently improbable and contradicted by his own witness. The complainant's evidence was corroborated by her written statement, her sister, and her manager. The arbitrator properly considered whether dismissal was an appropriate sanction. The review application amounted to an impermissible appeal on factual findings and did not meet the threshold for review under section 145(2)(a) of the LRA. The award was reasonable and carefully considered.

Court Disposition

The review application is dismissed.

Orders

  • The review application is dismissed.