Mashigo v MEIBC and Others (JR1147/14) [2017] ZALCJHB 316 (31 August 2017)

Mashigo v MEIBC and Others (JR1147/14) [2017] ZALCJHB 316 (31 August 2017)

The court found that the arbitrator correctly applied the law regarding differentiation in disciplinary sanctions. The differentiation was based on the number of prior offences, which constituted a material distinguishing factor. The arbitrator did not commit a gross irregularity by failing to call the applicant to testify, as the facts were largely common cause and the applicant was represented by his trade union. The award was reasonable and unassailable on the material before the arbitrator. The application to review and set aside the arbitration award was dismissed.

Citation
[2017] ZALCJHB 316
Parties
Applicant: Thabiso Mashigo; Respondent: MEIBC; Respondent: Mohammed Rafee; Respondent: Beka (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
31 August 2017
Case Number
JR1147/14
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Application to review and set aside the arbitration award dismissed.
Judges
Naidoo
Legal Topics
Unfair Dismissal, Inconsistency in Discipline, Review of Arbitration Award, Condonation, Gross Irregularity
Labour Law Civil Procedure Unfair Dismissal Inconsistency in Discipline Review of Arbitration Award Condonation Gross Irregularity

Case Brief

Summary, issues, holding and outcome

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Parties

Thabiso Mashigo

Applicant

MEIBC

Respondent

Mohammed Rafee

Respondent

Beka (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the differentiation in disciplinary sanctions among employees for submitting fraudulent sick notes was arbitrary or capricious.
  2. 2 Whether the arbitrator committed a gross irregularity by failing to call the applicant to testify.
  3. 3 Whether the arbitration award should be reviewed and set aside.

Ratio Decidendi

The court found that the arbitrator correctly applied the law regarding differentiation in disciplinary sanctions. The differentiation was based on the number of prior offences, which constituted a material distinguishing factor. The arbitrator did not commit a gross irregularity by failing to call the applicant to testify, as the facts were largely common cause and the applicant was represented by his trade union. The award was reasonable and unassailable on the material before the arbitrator. The application to review and set aside the arbitration award was dismissed.

Court Disposition

Application to review and set aside the arbitration award dismissed.

Orders

  • The application to review and set aside the arbitration award of the second respondent under case number MEGA 35267 is dismissed.
  • There is no order as to costs.