Malan v Bulbring N.O and Others (C 1140/2002) [2004] ZALC 52; [2004] 10 BLLR 1010 (LC); (2004) 25 ILJ 1737 (LC) (2 July 2004)

Malan v Bulbring N.O and Others (C 1140/2002) [2004] ZALC 52; [2004] 10 BLLR 1010 (LC); (2004) 25 ILJ 1737 (LC) (2 July 2004)

The court found that the arbitrator fundamentally misconstrued the nature of the dispute by treating the breach of housing rules as a tenancy issue under ESTA rather than employment-related misconduct. The housing rules were either incorporated into the employment contract or so closely connected to the employment relationship that their breach justified disciplinary action. The repeated contraventions by Lindeman, despite warnings and reinstatement, constituted misconduct under the disciplinary code. The arbitrator's refusal to consider the employment context and her finding that the CCMA lacked jurisdiction were errors of law and fact, rendering the award irrational and unjustifiable....

Citation
[2004] ZALC 52
Parties
Applicant: D J Malan; Respondent: Commissioner Bulbring, N.O.; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: SAAPAWU obo Lindeman
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
2 July 2004
Case Number
C 1140/2002
Procedural Posture
Review Application / Judgment
Outcome
The arbitration award is reviewed and set aside. The dismissal of Mr J Lindeman is declared substantively and procedurally fair. No order as to costs.
Judges
Murphy
Legal Topics
Unfair Dismissal, Disciplinary Code, Employment Contract, Extension of Security of Tenure Act, Substantive Fairness, Review of Arbitration Award
Labour Law Unfair Dismissal Disciplinary Code Employment Contract Extension of Security of Tenure Act Substantive Fairness Review of Arbitration Award

Case Brief

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Parties

D J Malan

Applicant

Commissioner Bulbring, N.O.

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

SAAPAWU obo Lindeman

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the breach of housing rules by Lindeman constituted misconduct justifying dismissal.
  2. 2 Whether the housing rules formed part of the employment contract or were merely terms of the lease agreement.
  3. 3 Whether the CCMA had jurisdiction to determine the dispute or if it was a matter for courts under ESTA.

Ratio Decidendi

The court found that the arbitrator fundamentally misconstrued the nature of the dispute by treating the breach of housing rules as a tenancy issue under ESTA rather than employment-related misconduct. The housing rules were either incorporated into the employment contract or so closely connected to the employment relationship that their breach justified disciplinary action. The repeated contraventions by Lindeman, despite warnings and reinstatement, constituted misconduct under the disciplinary code. The arbitrator's refusal to consider the employment context and her finding that the CCMA lacked jurisdiction were errors of law and fact, rendering the award irrational and unjustifiable....

Court Disposition

The arbitration award is reviewed and set aside. The dismissal of Mr J Lindeman is declared substantively and procedurally fair. No order as to costs.

Orders

  • The award of the First Respondent under CCMA case number WE 398-02 is hereby reviewed and set aside.
  • The dismissal of Mr J Lindeman by the First Applicant in December 2001 is declared to have been substantively and procedurally fair.