MEC for Education, Gauteng v Mgijima and Others (JR 1846/09) [2010] ZALC 138; [2011] 3 BLLR 253 (LC) ; (2011) 32 ILJ 640 (LC) (28 September 2010)

MEC for Education, Gauteng v Mgijima and Others (JR 1846/09) [2010] ZALC 138; [2011] 3 BLLR 253 (LC) ; (2011) 32 ILJ 640 (LC) (28 September 2010)

The court found that the arbitrator failed to apply his mind to the true issue before him, which was the employee's non-disclosure of her suspension and pending disciplinary charges at the time of her interview and contract negotiations. The arbitrator incorrectly focused on whether the employee was guilty of the charges, rather than on the materiality of her non-disclosure. The court held that the position applied for required unimpeachable honesty and integrity, and the failure to disclose material information deprived the employer of the opportunity to make an informed decision. This constituted a gross irregularity in the conduct of the proceedings, warranting the setting aside of the...

Citation
[2010] ZALC 138
Parties
Applicant: MEC for Education, Gauteng; Respondent: Dr N M M Mgijima; Respondent: Public Servants Association; Respondent: M J Tsabadi N.O; Respondent: General Public Service Sectoral Bargaining Council
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
28 September 2010
Case Number
JR 1846/09
Procedural Posture
Review Application / Judgment
Outcome
The arbitration award issued by the third respondent is reviewed and set aside. Costs are awarded against the first and second respondents, jointly and severally.
Judges
Van Niekerk
Legal Topics
Pre Dismissal Arbitration, Review of Arbitration Award, Non Disclosure by Employee, Gross Irregularity, Duty of Candour
Labour Law Civil Procedure Pre Dismissal Arbitration Review of Arbitration Award Non Disclosure by Employee Gross Irregularity Duty of Candour

Case Brief

Summary, issues, holding and outcome

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Parties

MEC for Education, Gauteng

Applicant

Dr N M M Mgijima

Respondent

Public Servants Association

Respondent

M J Tsabadi N.O

Respondent

General Public Service Sectoral Bargaining Council

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitrator committed a gross irregularity in the conduct of the pre-dismissal arbitration proceedings.
  2. 2 Whether the arbitrator failed to apply his mind to the true issue of non-disclosure by the employee.
  3. 3 Whether the employee had a duty to disclose her suspension and pending disciplinary charges during the interview and contract negotiations.

Ratio Decidendi

The court found that the arbitrator failed to apply his mind to the true issue before him, which was the employee's non-disclosure of her suspension and pending disciplinary charges at the time of her interview and contract negotiations. The arbitrator incorrectly focused on whether the employee was guilty of the charges, rather than on the materiality of her non-disclosure. The court held that the position applied for required unimpeachable honesty and integrity, and the failure to disclose material information deprived the employer of the opportunity to make an informed decision. This constituted a gross irregularity in the conduct of the proceedings, warranting the setting aside of the...

Court Disposition

The arbitration award issued by the third respondent is reviewed and set aside. Costs are awarded against the first and second respondents, jointly and severally.

Orders

  • The arbitration award issued by the third respondent dated 24 May 2009 is reviewed and set aside.
  • The first and second respondents are to pay the costs of these proceedings, jointly and severally.