Mayisela v Commission for Conciliation, Mediation and Arbitration and Others (C138/16) [2017] ZALCCT 15; (2017) 38 ILJ 1826 (LC) (19 April 2017)

Mayisela v Commission for Conciliation, Mediation and Arbitration and Others (C138/16) [2017] ZALCCT 15; (2017) 38 ILJ 1826 (LC) (19 April 2017)

The Labour Court found that the arbitrator failed to conduct a proper enquiry into several charges against the applicant, particularly those relating to insubordination, racism, harassment, and intimidation. The arbitrator wrongly assumed the reasonableness of instructions given by the supervisor without proper foundation and failed to consider material evidence elicited in cross-examination. The court emphasized that allegations of racism must be investigated and not suppressed, and that racist conduct requires a firm judicial response. The applicant's dismissal was found to be substantively unfair, as the remaining charges did not justify the sanction of dismissal. The court ordered...

Citation
[2017] ZALCCT 15
Parties
Applicant: Vincent Nkululeko Mayisela; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Antony Osler; Respondent: Legal Aid South Africa
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
19 April 2017
Case Number
C138/16
Procedural Posture
Review Application / Judgment After Review of Arbitration Award
Outcome
The application to review and set aside the arbitration award is granted in respect of charges 1.1, 1.2, 1.3, 3.1, 3.2, and 4.1; dismissed in respect of charges 1.4, 2.1, and 2.3. The applicant's dismissal was substantively unfair. Reinstatement is ordered, subject to placement conditions and a final written warning.
Judges
Cele J
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Progressive Discipline, Racist Conduct, Insubordination, Remedies for Unfair Dismissal
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Progressive Discipline Racist Conduct Insubordination Remedies for Unfair Dismissal

Case Brief

Summary, issues, holding and outcome

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Parties

Vincent Nkululeko Mayisela

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Antony Osler

Respondent

Legal Aid South Africa

Respondent

Procedural Posture

Review Application / Judgment After Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitration award was reviewable under section 145 of the Labour Relations Act.
  2. 2 Whether the applicant's dismissal was substantively and procedurally fair.
  3. 3 Whether the arbitrator failed to conduct a proper enquiry and reached an unreasonable decision.

Ratio Decidendi

The Labour Court found that the arbitrator failed to conduct a proper enquiry into several charges against the applicant, particularly those relating to insubordination, racism, harassment, and intimidation. The arbitrator wrongly assumed the reasonableness of instructions given by the supervisor without proper foundation and failed to consider material evidence elicited in cross-examination. The court emphasized that allegations of racism must be investigated and not suppressed, and that racist conduct requires a firm judicial response. The applicant's dismissal was found to be substantively unfair, as the remaining charges did not justify the sanction of dismissal. The court ordered...

Court Disposition

The application to review and set aside the arbitration award is granted in respect of charges 1.1, 1.2, 1.3, 3.1, 3.2, and 4.1; dismissed in respect of charges 1.4, 2.1, and 2.3. The applicant's dismissal was substantively unfair. Reinstatement is ordered, subject to placement conditions and a final written warning.

Orders

  • The arbitration award is set aside in relation to charges 1.1, 1.2, 1.3, 3.1, 3.2, and 4.1.
  • The application to set aside the award is dismissed in respect of charges 1.4, 2.1, and 2.3.