Mathamaga v CCMA and Others (JR1455/20) [2021] ZALCJHB 104 (26 May 2021)

Mathamaga v CCMA and Others (JR1455/20) [2021] ZALCJHB 104 (26 May 2021)

The court found that the Commissioner’s award was not one that a reasonable decision maker could reach, as the instruction to report for duty was objectively reasonable and lawful. Kelatlhiwe’s failure to comply was not justified by his personal circumstances, and his conduct amounted to gross insubordination. The Commissioner’s reasoning was convoluted and inconsistent with the evidence, particularly in considering the appropriateness of the sanction after finding no rule was breached. The award was therefore reviewed and set aside, and replaced with an order that the dismissal was substantively fair.

Citation
[2021] ZALCJHB 104
Parties
Applicant: Mapogo A Mathamaga; Respondent: The CCMA; Respondent: Commissioner E Hlungwani N.O.; Respondent: Phillimon Kelatlhiwe
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
26 May 2021
Case Number
JR1455/20
Procedural Posture
Review Application / Judgment
Outcome
The review application succeeds; the arbitration award is reviewed and set aside, and replaced with an order that the dismissal of Phillimon Kelatlhiwe is substantively fair.
Judges
G N Moshoana
Legal Topics
Unfair Dismissal, Insubordination, Arbitration Review, Reasonableness of Award
Labour Law Unfair Dismissal Insubordination Arbitration Review Reasonableness of Award

Case Brief

Summary, issues, holding and outcome

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Parties

Mapogo A Mathamaga

Applicant

The CCMA

Respondent

Commissioner E Hlungwani N.O.

Respondent

Phillimon Kelatlhiwe

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitration award issued by the second respondent was reasonable and justifiable in law.
  2. 2 Whether the dismissal of Phillimon Kelatlhiwe was substantively unfair.
  3. 3 Whether the instruction given to Kelatlhiwe was lawful and reasonable.

Ratio Decidendi

The court found that the Commissioner’s award was not one that a reasonable decision maker could reach, as the instruction to report for duty was objectively reasonable and lawful. Kelatlhiwe’s failure to comply was not justified by his personal circumstances, and his conduct amounted to gross insubordination. The Commissioner’s reasoning was convoluted and inconsistent with the evidence, particularly in considering the appropriateness of the sanction after finding no rule was breached. The award was therefore reviewed and set aside, and replaced with an order that the dismissal was substantively fair.

Court Disposition

The review application succeeds; the arbitration award is reviewed and set aside, and replaced with an order that the dismissal of Phillimon Kelatlhiwe is substantively fair.

Orders

  • The arbitration award issued by Commissioner E Hlungwani under case number NWRB4195-19 dated 8 August 2020 is reviewed and set aside.
  • It is replaced with an order that the dismissal of Phillimon Kelatlhiwe is substantively fair.