Mashiane v Dolie NO and Others (JR1357/07) [2009] ZALCJHB 17 (14 December 2009)

Mashiane v Dolie NO and Others (JR1357/07) [2009] ZALCJHB 17 (14 December 2009)

The court found that the arbitrator failed to apply his mind to the central issue, which was whether the applicant had aided and abetted the illegal entry of foreigners into South Africa. Instead, the arbitrator focused on allegations of bribery, which were not the subject of the disciplinary charges. The evidence did not establish that the applicant was involved in the bribery or that the foreigners' visas were invalid. The arbitrator's failure to consider the relevant evidence and charges constituted a gross irregularity. Consequently, the dismissal was found to be substantively unfair, and the arbitration award was set aside and substituted with an order for reinstatement.

Citation
[2009] ZALCJHB 17
Parties
Applicant: Dineo Valencia Mashiane; Respondent: Mr M Dolie N.O.; Respondent: Safety and Security Bargaining Council; Respondent: Minister of Safety and Security; Respondent: Commissioner of South African Police Services
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
14 December 2009
Case Number
JR1357/07
Procedural Posture
Review Application / Judgment on Review and Substitution of Arbitration Award
Outcome
The review application was granted, the arbitration award was set aside, and the applicant was ordered to be reinstated retrospectively without loss of benefits. Costs were awarded in favour of the applicant.
Judges
Molahlehi
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Condonation of Late Filing, Onus of Proof, Substantive Fairness
Labour Law Unfair Dismissal Review of Arbitration Award Condonation of Late Filing Onus of Proof Substantive Fairness

Case Brief

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Parties

Dineo Valencia Mashiane

Applicant

Mr M Dolie N.O.

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 and Substitution 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 central issue, which was whether the applicant had aided and abetted the illegal entry of foreigners into South Africa. Instead, the arbitrator focused on allegations of bribery, which were not the subject of the disciplinary charges. The evidence did not establish that the applicant was involved in the bribery or that the foreigners' visas were invalid. The arbitrator's failure to consider the relevant evidence and charges constituted a gross irregularity. Consequently, the dismissal was found to be substantively unfair, and the arbitration award was set aside and substituted with an order for reinstatement.

Court Disposition

The review application was granted, the arbitration award was set aside, and the applicant was ordered to be reinstated retrospectively without loss of benefits. Costs were awarded in favour of 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.