Malimba v Commission for Conciliation, Mediation and Arbitration and Others (JR1594/18) [2021] ZALCJHB 2 (23 January 2021)

Malimba v Commission for Conciliation, Mediation and Arbitration and Others (JR1594/18) [2021] ZALCJHB 2 (23 January 2021)

The court found that the applicant failed to provide an acceptable or reasonable explanation for the delay in filing the complete record, but the prejudice to the employer was minimal and the interests of justice warranted condonation and reinstatement of the review application. On the merits, the applicant was dismissed for absenteeism, not for failing to produce his ID card. The evidence showed he did not notify management of his absence as required by the Staff Handbook, and his explanations were improbable. The Commissioner properly considered the facts, including the applicant's disciplinary history and the impact of his absence on the employer. The Commissioner’s findings on the...

Citation
[2021] ZALCJHB 2
Parties
Applicant: Litha Malimba; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner Kabelo Lesiba Mfati N. O; Respondent: Sun International Management Limited
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
23 January 2021
Case Number
JR1594/18
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The application for review and setting aside of the arbitration award is dismissed.
Judges
Tlhotlhalemaje
Legal Topics
Unfair Dismissal, Absenteeism, Disciplinary Procedure, Condonation, Review of Arbitration Award
Labour Law Unfair Dismissal Absenteeism Disciplinary Procedure Condonation Review of Arbitration Award

Case Brief

Summary, issues, holding and outcome

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Parties

Litha Malimba

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner Kabelo Lesiba Mfati N. O

Respondent

Sun International Management Limited

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the late filing of the complete record of arbitration proceedings should be condoned.
  2. 2 Whether the Commissioner’s award upholding the dismissal for absenteeism was reviewable on grounds of unreasonableness or procedural unfairness.
  3. 3 Whether the employer applied discipline consistently and fairly in dismissing the applicant for absenteeism.

Ratio Decidendi

The court found that the applicant failed to provide an acceptable or reasonable explanation for the delay in filing the complete record, but the prejudice to the employer was minimal and the interests of justice warranted condonation and reinstatement of the review application. On the merits, the applicant was dismissed for absenteeism, not for failing to produce his ID card. The evidence showed he did not notify management of his absence as required by the Staff Handbook, and his explanations were improbable. The Commissioner properly considered the facts, including the applicant's disciplinary history and the impact of his absence on the employer. The Commissioner’s findings on the...

Court Disposition

The application for review and setting aside of the arbitration award is dismissed.

Orders

  • The late filing of the complete record of the transcribed arbitration proceedings is condoned, and the review application is reinstated.
  • The application to review and set aside the arbitration award issued by the Second Respondent under case number NWRB949-18 dated 27 June 2018 is dismissed.