Mashigo v South African Broadcasting Corporation Soc Ltd (JR2454/19) [2024] ZALCJHB 455; [2025] 3 BLLR 312 (LC) (20 November 2024)

Mashigo v South African Broadcasting Corporation Soc Ltd (JR2454/19) [2024] ZALCJHB 455; [2025] 3 BLLR 312 (LC) (20 November 2024)

The commissioner committed gross irregularities by admitting hearsay evidence without proper foundation and failing to require the authors of the documents to testify to their authenticity and correctness. The commissioner further misdirected herself by accepting the employer's failure to allow the applicant to submit mitigating factors, despite the employer's own disciplinary procedure requiring such an opportunity. The award was deficient in its analysis and reasoning, and the commissioner did not apply her mind to all material issues. As a result, the award is not one which a reasonable decision maker could have made. The appropriate relief is to set aside the award and remit the...

Citation
[2024] ZALCJHB 455
Parties
Applicant: Charles Selogang Mashigo; Respondent: South African Broadcasting Corporation SOC Ltd; Respondent: Karen Kleinot N.O.; Respondent: Commission for Conciliation, Mediation and Arbitration
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
20 November 2024
Case Number
JR2454/19
Procedural Posture
Review Application / Judgment
Outcome
The arbitration award is reviewed and set aside in its entirety. The dispute is remitted to the CCMA for a hearing de novo before another commissioner. No order as to costs.
Judges
Seedat
Legal Topics
Unfair Dismissal, Admissibility of Evidence, Procedural Fairness, Mitigation of Sanction
Labour Law Civil Procedure Unfair Dismissal Admissibility of Evidence Procedural Fairness Mitigation of Sanction

Case Brief

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Parties

Charles Selogang Mashigo

Applicant

South African Broadcasting Corporation SOC Ltd

Respondent

Karen Kleinot N.O.

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the commissioner erred in admitting and relying on hearsay evidence without proper foundation.
  2. 2 Whether the dismissal of the applicant was procedurally fair given the employer's failure to allow mitigation submissions.
  3. 3 Whether the commissioner failed to apply the employer's own disciplinary procedures regarding sanction.

Ratio Decidendi

The commissioner committed gross irregularities by admitting hearsay evidence without proper foundation and failing to require the authors of the documents to testify to their authenticity and correctness. The commissioner further misdirected herself by accepting the employer's failure to allow the applicant to submit mitigating factors, despite the employer's own disciplinary procedure requiring such an opportunity. The award was deficient in its analysis and reasoning, and the commissioner did not apply her mind to all material issues. As a result, the award is not one which a reasonable decision maker could have made. The appropriate relief is to set aside the award and remit the...

Court Disposition

The arbitration award is reviewed and set aside in its entirety. The dispute is remitted to the CCMA for a hearing de novo before another commissioner. No order as to costs.

Orders

  • The arbitration award of the second respondent given under case number GAJB10130-19 dated 19 September 2019 is reviewed and set aside in its entirety.
  • The dispute between the applicant and the first respondent is remitted to the third respondent for a hearing de novo before another commissioner.