Malungu and Another v Rand Water and Others (JA39/16) [2017] ZALAC 28 (18 May 2017)

Malungu and Another v Rand Water and Others (JA39/16) [2017] ZALAC 28 (18 May 2017)

The Labour Appeal Court found that the Labour Court erred by relying on a later version of the procurement policy ('Rev No. 02') that was not in force when the charges were brought against the first appellant. The applicable version ('Rev No. 00') did not require the involvement of the buyer in the procurement process for emergency work. Therefore, the first appellant was not guilty of charge 2(d). With charge 2(d) set aside, only charges 2(b) and 2(c) remained, which were Schedule A offences not serious enough to warrant dismissal. The Commissioner’s sanction was reasonable and should stand. Condonation for the late filing of the record was granted due to good prospects of success and...

Citation
[2017] ZALAC 28
Parties
Appellant: J K Malungu; Appellant: SAMWU; Respondent: Rand Water; Respondent: Fatemah Shaik; Respondent: Commission for Conciliation, Mediation and Arbitration
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
18 May 2017
Case Number
JA39/16
Procedural Posture
Civil Appeal / Appeal From Labour Court Judgment Reviewing Arbitration Award
Outcome
Appeal upheld; Labour Court order amended to reinstate the Commissioner’s award.
Judges
Tlaletsi, Landman, Kathree-Setiloane
Legal Topics
Unfair Dismissal, Disciplinary Code, Condonation, Review of Arbitration Award
Labour Law Civil Procedure Unfair Dismissal Disciplinary Code Condonation Review of Arbitration Award

Case Brief

Summary, issues, holding and outcome

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Parties

J K Malungu

Appellant

SAMWU

Appellant

Rand Water

Respondent

Fatemah Shaik

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Procedural Posture

Civil Appeal / Appeal From Labour Court Judgment Reviewing Arbitration Award

Legal Issues

  1. 1 Whether the first appellant was guilty of charge 2(d) under the applicable procurement policy.
  2. 2 Whether the Labour Court erred in substituting the sanction imposed by the Commissioner.
  3. 3 Whether condonation for late filing of the record should be granted.

Ratio Decidendi

The Labour Appeal Court found that the Labour Court erred by relying on a later version of the procurement policy ('Rev No. 02') that was not in force when the charges were brought against the first appellant. The applicable version ('Rev No. 00') did not require the involvement of the buyer in the procurement process for emergency work. Therefore, the first appellant was not guilty of charge 2(d). With charge 2(d) set aside, only charges 2(b) and 2(c) remained, which were Schedule A offences not serious enough to warrant dismissal. The Commissioner’s sanction was reasonable and should stand. Condonation for the late filing of the record was granted due to good prospects of success and...

Court Disposition

Appeal upheld; Labour Court order amended to reinstate the Commissioner’s award.

Orders

  • Condonation for the late filing of the record is granted and the appeal is reinstated.
  • The appeal is upheld.