Mashiane v Dolie NO and Others (JR 1357/07) [2009] ZALC 122; [2010] 4 BLLR 422 (LC) (14 December 2009)

Mashiane v Dolie NO and Others (JR 1357/07) [2009] ZALC 122; [2010] 4 BLLR 422 (LC) (14 December 2009)

The court found that the arbitrator failed to apply his mind to the material evidence and misconceived the nature of the dispute. The arbitrator focused on allegations of bribery, which were not the charges against the applicant, instead of determining whether the applicant aided and abetted the illegal entry of foreigners without valid visas. The evidence did not establish that the applicant was involved in the alleged misconduct, nor did it show that the foreigners' visas were invalid. The respondents failed to discharge the onus of proving that the dismissal was for a fair and valid reason. The late filing of the review application was condoned due to satisfactory and reasonable...

Citation
[2009] ZALC 122
Parties
Applicant: Dineo Valencia Mashiane; Respondent: Mr M Dolie NO; Respondent: Safety and Security Bargaining Council; Respondent: Minister of Safety and Security; Respondent: Commissioner of South African Police Services
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
14 December 2009
Case Number
JR 1357/07
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The review application is granted. The arbitration award is set aside and substituted with an order that the dismissal was substantively unfair. The applicant is reinstated retrospectively without loss of benefits. Costs are awarded to the applicant.
Judges
Molahlehi
Legal Topics
Review of Arbitration Award, Condonation of Late Filing, Substantive Fairness of Dismissal, Onus of Proof, Gross Irregularity
Labour Law Civil Procedure Review of Arbitration Award Condonation of Late Filing Substantive Fairness of Dismissal Onus of Proof Gross Irregularity

Case Brief

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Parties

Dineo Valencia Mashiane

Applicant

Mr M Dolie NO

Respondent

Safety and Security Bargaining Council

Respondent

Minister of Safety and Security

Respondent

Commissioner of South African Police Services

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator committed a gross irregularity by failing to apply his mind to the evidence before him.
  2. 2 Whether the dismissal of the applicant was substantively fair.
  3. 3 Whether the late filing of the review application should be condoned.

Ratio Decidendi

The court found that the arbitrator failed to apply his mind to the material evidence and misconceived the nature of the dispute. The arbitrator focused on allegations of bribery, which were not the charges against the applicant, instead of determining whether the applicant aided and abetted the illegal entry of foreigners without valid visas. The evidence did not establish that the applicant was involved in the alleged misconduct, nor did it show that the foreigners' visas were invalid. The respondents failed to discharge the onus of proving that the dismissal was for a fair and valid reason. The late filing of the review application was condoned due to satisfactory and reasonable...

Court Disposition

The review application is granted. The arbitration award is set aside and substituted with an order that the dismissal was substantively unfair. The applicant is reinstated retrospectively without loss of benefits. Costs are awarded to the applicant.

Orders

  • The late filing of the review application is condoned.
  • The arbitration award issued by the first respondent is reviewed and set aside.