MCL Ukhozi Recruitment Services CC v Khan and Others (D269/08) [2009] ZALCD 13 (9 February 2009)

MCL Ukhozi Recruitment Services CC v Khan and Others (D269/08) [2009] ZALCD 13 (9 February 2009)

The Labour Court found that the Commissioner had ignored material documentary evidence, specifically emails sent by the employee indicating his intention not to remain employed after December. This evidence corroborated the employer's version that the employee had resigned rather than being dismissed. The Commissioner's failure to consider these emails constituted a misdirection and rendered the arbitration award unreasonable. Accordingly, the review application was granted and the award was set aside.

Citation
[2009] ZALCD 13
Parties
Applicant: MCL Ukhozi Recruitment Services CC; Respondent: Faiz Ahmed Khan; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner Lester Sullivan
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
9 February 2009
Case Number
D269/08
Procedural Posture
Review Application / Judgment
Outcome
Application for review granted; arbitration award set aside.
Judges
Pillay D
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Resignation Vs Dismissal
Labour Law Unfair Dismissal Review of Arbitration Award Resignation Vs Dismissal

Case Brief

Summary, issues, holding and outcome

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Parties

MCL Ukhozi Recruitment Services CC

Applicant

Faiz Ahmed Khan

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner Lester Sullivan

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Did the employee resign or was he dismissed by the employer.
  2. 2 Did the Commissioner ignore material documentary evidence relevant to the dispute.
  3. 3 Was the arbitration award reasonable in light of the evidence presented.

Ratio Decidendi

The Labour Court found that the Commissioner had ignored material documentary evidence, specifically emails sent by the employee indicating his intention not to remain employed after December. This evidence corroborated the employer's version that the employee had resigned rather than being dismissed. The Commissioner's failure to consider these emails constituted a misdirection and rendered the arbitration award unreasonable. Accordingly, the review application was granted and the award was set aside.

Court Disposition

Application for review granted; arbitration award set aside.

Orders

  • The arbitration award issued by the third respondent is reviewed and set aside.
  • No order as to costs.