Maneche and Others v Commission For Conciliation, Mediation and Arbitration and Others (JR1639/05) [2007] ZALC 115; [2008] 1 BLLR 52 (LC); (2007) 28 ILJ 2594 (LC) (5 July 2007)

Maneche and Others v Commission For Conciliation, Mediation and Arbitration and Others (JR1639/05) [2007] ZALC 115; [2008] 1 BLLR 52 (LC); (2007) 28 ILJ 2594 (LC) (5 July 2007)

The Commissioner committed a material error of law by treating a workplace practice as capable of overriding the statutory overtime limits set by the BCEA. The Act takes precedence over any agreement or practice, and the applicants' refusal to work beyond the statutory limit was a lawful exercise of their rights, not insubordination. The dismissals were therefore substantively unfair. The award is reviewable and must be set aside. Given the passage of time since the dismissals, the matter should not be referred back for further arbitration; instead, the applicants are entitled to reinstatement without loss of benefits.

Citation
[2007] ZALC 115
Parties
Applicant: Miriam Maneche; Applicant: Elizabeth Ntsane; Applicant: Malusi Magawu; Applicant: Martin Stander; Applicant: Ester Bereng; Applicant: Evelyn Kganare; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner Carmen Ward; Respondent: Northern Cape Mushrooms
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
5 July 2007
Case Number
JR1639/05
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The applicants' dismissals are declared substantively unfair. The applicants are reinstated without loss of benefits from the date of dismissal. Costs are awarded against the third respondent.
Judges
A Van Niekerk
Legal Topics
Unfair Dismissal, Basic Conditions of Employment, Overtime Limits, Insubordination, Review of Arbitration Award
Labour Law Unfair Dismissal Basic Conditions of Employment Overtime Limits Insubordination Review of Arbitration Award

Case Brief

Summary, issues, holding and outcome

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Parties

Miriam Maneche

Applicant

Elizabeth Ntsane

Applicant

Malusi Magawu

Applicant

Martin Stander

Applicant

Ester Bereng

Applicant

Evelyn Kganare

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner Carmen Ward

Respondent

Northern Cape Mushrooms

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the Commissioner committed a material error of law by disregarding the statutory overtime limits under the BCEA.
  2. 2 Whether the applicants' refusal to work overtime beyond the statutory limit constituted insubordination.
  3. 3 Whether the dismissals of the applicants were substantively fair.

Ratio Decidendi

The Commissioner committed a material error of law by treating a workplace practice as capable of overriding the statutory overtime limits set by the BCEA. The Act takes precedence over any agreement or practice, and the applicants' refusal to work beyond the statutory limit was a lawful exercise of their rights, not insubordination. The dismissals were therefore substantively unfair. The award is reviewable and must be set aside. Given the passage of time since the dismissals, the matter should not be referred back for further arbitration; instead, the applicants are entitled to reinstatement without loss of benefits.

Court Disposition

The arbitration award is reviewed and set aside. The applicants' dismissals are declared substantively unfair. The applicants are reinstated without loss of benefits from the date of dismissal. Costs are awarded against the third respondent.

Orders

  • The Second Respondent's award dated 11 May 2005 is reviewed and set aside.
  • The award is substituted by the following: The dismissal of the Applicants is substantively unfair. The Applicants are reinstated in their employment, without loss of benefit, from the date of their dismissal.